Settling Self-Determination Disputes: Complex Power-sharing in Theory and Practice

Settling Self-determination Disputes

Settling Self-determination Disputes: Complex Power-sharing in Theory and Practice

Edited by

Marc Weller and Barbara Metzger

Assistant Editor

Niall Johnson

Published under the Auspices of the Centre for International Constitutional Studies at the University of Cambridge

leiden • boston 2008

Printed on acid-free paper. A c.i.p. record for this book is available from the Library of Congress.

isbn: 978 9004 16482 6 © 2008 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoff Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Printed and bound in The Netherlands.

Table of Contents



Preface

ix



Settling Self-determination Conflicts: An Introduction Marc Weller

xi

Section One Framework and Case Studies

1

Part One

Historical and Theoretical Framework

3

Chapter 1

Nationalism, Self-determination, and the Doctrine of Territorial Unity James Mayall

5

Chapter 2

Why the Legal Rules on Self-determination Do Not Resolve Self-determination Disputes Marc Weller

17

Chapter 3

The Logics of Power-sharing, Consociation and Pluralist Federations Brendan O’Leary

47

Part Two

Case Studies

59

Chapter 4

Complex Power-sharing in and over Northern Ireland: A Self-determination Agreement, a Treaty, a Consociation, a Federacy, Matching Confederal Institutions, Intergovernmentalism, and a Peace Process Brendan O’Leary

Chapter 5

Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing? Anthony J. Regan

61

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Table of Contents

Chapter 6

Resolving Self-determination Disputes Through Complex Power-sharing Arrangements: The Case of Mindanao, Southern Philippines Mark Turner

Chapter 7

Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina Florian Bieber

Chapter 8

Interim-governance for Kosovo: The Rambouillet Agreement and the Constitutional Framework Developed under UN Administration Marc Weller

161

193

243

Chapter 9

Power-sharing in Macedonia? Farimah Daftary and Eben Friedman

265

Chapter 10

Gagauzia and Moldova: Experiences in Power-sharing Priit Järve

307

Chapter 11

Case Study of the Conflict in South Ossetia Ketevan Tsikhelashvili and Natasha Ubilava

345

Section Two Cross-cutting Analysis

383

Part Three

Vertical Power-sharing

385

Chapter 12

Addressing the Self-determination Dispute Marc Weller

387

Chapter 13

Power-sharing and the Vertical Layering of Authority: A Review of Current Practices Stefan Wolff

407

Chapter 14

Electoral Arrangements in Systems of Complex Powersharing Andrew Reynolds

451

Chapter 15

Third-party Involvement in Self-determination Conflicts Ulrich Schneckener

467

Part Four

Functional Power-sharing

501

Chapter 16

Education Mark Turner

503

Table of Contents

Chapter 17

Resolving Self-determination Disputes Using Complex Power-sharing: The Role of Economic Policies John Bradley

531

Chapter 18

Policing Territories Previously Subject to Civil War and Ethnic Violence Philip Towle

559

Chapter 19

The Military Dimension of Security Sector Governance in Complex Power-sharing Arrangements Paul Cornish

571

Chapter 20 Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements Angela Hegarty

599

Chapter 21

The Role of Human and Minority Rights in Complex Powersharing Jennifer Jackson-Preece

627

Chapter 22

‘Bridges’ in Self-determination Disputes? External Relations of Sub-national Entities and Minority Groups Francesco Palermo

667

Part Five

Conclusions

689

Chapter 23

Conclusion Power-sharing Theory: Lessons from the Complex Powersharing Project John McGarry

691



Biographies

721



Bibliography

729



Index

765

vii

Preface

This study is the result of an international collaborative project supported and funded by the Carnegie Corporation of New York. This multi-year venture has involved a research team of some forty chapter authors and commentators. The research has been accompanied by three major workshops on project methodology, initial chapter reviews and final discussions. We made a point of including both scholars and practitioners involved in power-sharing settlements in the review process, hoping to learn more about the actual implementation of the settlements under investigation. The project team was united in its wish to explore whether long-standing secessionist conflicts have been addressed effectively through the significant number of self-determination settlements that were generated in response to the wave of internal conflicts of the 1990s. We were also committed to testing whether consociationalist and integrative techniques of conflict settlement really are as mutually exclusive as is sometimes supposed, or whether they can in fact be mutually reinforcing. Finally, the project derives its impetus from the necessity to critically rethink the doctrine of self-determination. One may question whether its traditional, restrictive interpretation will be adequate in confronting the wide variety of future challenges to the territorial integrity of states. This volume represents an initial consideration of these issues in the light of an exploration of eight cases of attempted settlement of self-determination conflicts. By self-determination conflict, we understand to mean those cases where a unit within an existing state is struggling, at least at some stage of its campaign, for independence. We somewhat stretched this definition by including the Republic of Macedonia. There, an internal movement had launched an armed campaign in favour of autonomy. However, the regional environment was precarious and a possible disruption of the territorial integrity of Macedonia was generally feared as the ultimate consequence of this campaign. A second criterion for the selection of our cases concerns the doctrine of ‘complex’ power-sharing. We attempted to investigate a mix of cases, featuring either the full range of elements of complex power-sharing, or at least a significant number of them. We understand complex power-sharing settlements to be those that concurrently deploy autonomy, governmental, and executive power-sharing, veto and voting mechanisms, human and minority rights regimes, dispute settle-



Marc Weller

ment mechanisms, and the involvement of a layer of international involvement or even international governance. Again, we stretched this definition somewhat in considering the case of Georgia, which features a more pronounced autonomy dimension. However, it was felt prudent to try and cover a fair spectrum of attempted solutions within our overall area of interest. Of course, the work presented here only partly reflects the outcomes of our work. It is to be seen in connection with a study of autonomy settlements already published under the leadership of Professor Stefan Wolff (Weller and Wolff 2005) and a further enquiry into asymmetrical solutions to state construction that is being concluded now. A further output of this work will be a review of mechanisms aiming to enhance political participation of non-dominant groups in situations where conflict appears to be looming or has just been provisionally concluded. In addition, the Cambridge-Carnegie team has become active as advisor in a number of ongoing settlement attempts, ranging from Kosovo, Georgia, Moldova, and Sudan to Sri Lanka. In addition to our contributors and commentators, we have many individuals to thank. First and foremost, there is Stephen del Rosso of the Carnegie Corporation of New York, whose steady support has allowed us to develop this project over time. We have also had the benefit and advice of Professor Sir Elihu Lauterpacht, QC, CBE and Professor James Crawford, QC in the University of Cambridge. In Cambridge, the project was very ably supported by Ms Jessie Fyfe, Ms Carmen Semenescou, and Mr Niall Johnson, who also took on a significant role as assistant editor. Moreover, the project was carried out in close cooperation with the European Centre for Minority Issues. At ECMI, we had the benefit of the support of Josie Lavoie, Matthew Ward, Colleen French, Adriana Nikolova, Janina Dill, Vladislav Michalcik, and many others.* Finally, it is necessary to record our gratitude to Ms Lindy Melman of Brill Publishers, who managed the publications process with her customary calm efficiency. Marc Weller Cambridge

*

Ms Katherine Nobbs was instrumental in bringing the editorial process to its conclusion

Settling Self-determination Conflicts: An Introduction Marc Weller

The claim to self-determination encapsulates the hopes of ethnic peoples and other groups for freedom and independence. It provides a powerful focus for nationalist fervour, and it provides a convenient tool for ethnic entrepreneurs seeking to mobilize populations and fighters in pursuit of a secessionist cause. Indeed, self-determination conflicts are among the most persistent and destructive forms of warfare. Unless the aim of secession is achieved, self-determination conflicts are likely to drag on for decades, in some instances for half a century (Burma/Myanmar). Given the structural inequality between an armed self-determination movement and the opposing central government, the ‘national liberation movement’ will often resort to irregular methods of warfare, possibly including terrorist tactics. This may lead to profound destabilization of societies placed at risk of disintegration, as could be seen in Sri Lanka or Sudan. Also, due to the doctrine of non-intervention, international actors are traditionally hesitant to involve themselves in attempts to bring about a settlement of the conflict. Of course, self-determination conflicts will not go away by virtue of being ignored. Unless defeated by the government, secessionist campaigns will persist with varying degrees of violence. At present, there are about thirty ongoing armed self-determination conflicts. Some are simmering at a lower level of terrorist violence, others amount to more regular internal armed conflicts, with secessionist groups maintaining control over significant swaths of territory to the exclusion of the central government. In addition to these active conflicts, it is estimated that there are another fifty or so campaigns for self-determination at present that might turn violent if left unaddressed. Indeed, some analysts predict that state collapse and disintegration may be a defining feature of African politics over the next decades, drawing an ominous arch of crisis across northern Africa, and then extending it south to reach as far as Zimbabwe. Given the difficulties encountered in that region in terminating non-ethnically motivated internal armed conflicts that are lacking in the secessionist dimension, one can easily imagine the effects for regional stability if self-determination were to be added to the equation. The explosive nature of self-determination claims is not only explained by the powerful force of nationalism or ethnic entrepreneurship. At the structural level, the very doctrine of self-determination contributes to the fact that, traditionally, few existing conflicts have been addressed, and those that have emerged anew

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appeared to be unsolvable. The doctrine of self-determination has traditionally been seen as an all-or-nothing proposition. True, self-determination has numerous layers of meaning. This includes a right to democratic participation for individuals that can be derived from the doctrine of self-determination, certain human rights entitlements for minorities and additional benefits for indigenous peoples. But at the sharp end, where opposed unilateral secession is concerned, the doctrine has contributed to conflict, rather than helping to resolve it. International legal rules are made by governments. Governments do have an interest in perpetuating the legitimating myth of statehood based on an exercise of the free will of the constituents of the state – their own legitimacy depends on it. But while embracing the rhetoric of free will and self-constituting states, governments have at the same time ensured that the legal right to self-determination is strictly rationed and cannot ever be invoked against the state they represent. Traditionally, self-determination in the sense of secession, accordingly, only applies to colonial entities in the classical sense, and closely analogous cases. While Chechnya might want to argue that it was occupied forcibly by a metropolitan power during the age of imperialism for the purpose of economic exploitation (a lay-man’s working definition of colonialism perhaps), it nevertheless did not qualify for self-determination. Unsurprisingly, Russia, and many other states like it, have made sure that the doctrine of self-determination can only be invoked in the classical and narrowly defined circumstances of colonialism, which practically no longer exist anywhere. Even in relation to such traditional colonies, the right can only be exercised within the boundaries established by the colonial power – in that way it does not overcome the effects of colonialism, but the self-determination entity itself is defined through it. Furthermore, the right is of singular application. As soon as a colony has gained independence, it will itself start defending its own territorial integrity with utmost vigour. There is no secession from secession. And, when armed self-determination conflicts break out outside of the colonial context, a legal inequality with profound practical consequences comes into existence. Colonial self-determination movements are entitled to establish national liberation movements, and the international system is twisted in their favour, to help overcome the last vestiges of colonialism. Other rebel movements hiding in the deserts and jungles of the world also lay claim to the label of ‘national liberation’. However, in their case, the self-determination privilege does not apply; instead, the international system is structured in such a way as to help the central state ensure their defeat. However just the cause of groups fighting on behalf of suppressed and tortured peoples may also be outside of the colonial context, they are classified as secessionist rebels and terrorists. Hence, they can be engaged with minimum international legal restraint, under the very legal order of the state from which they seek to escape. Overall, the all-or-nothing game of self-determination has helped to sustain conflicts, rather than resolving them. Self-styled self-determination movements see no alternative to a strategy of fight and win in order to achieve their aims. Central governments see little alternative to violent repression.

Settling Self-determination Conflicts: an Introduction

Of course, there is one alternative. This has been the attempt of buying off secessionists by offering them autonomy within the state, instead of independence outside of the state. Classical cases include the Aaland Islands within Finland, South Tyrol in Italy, and the accommodation of various groups within India. But over the period of 1945 to the end of the Cold War around 1988, only a handful of settlements of this kind were obtained. With the termination of the Cold War, however, the situation has changed significantly. Since 1988, we have had a proliferation of self-determination settlements. This is, in part, a result of the fact that the end of the Cold War was, itself, a trigger for the outbreak of new conflicts requiring settlement, including those affiliated with the collapse of the former Yugoslavia and the Soviet Union. In view of the enormously destructive force of these conflicts, especially in Bosnia and Herzegovina, international actors have finally become involved and at times imposed settlements. In other instances, the actors involved have recognized that they have been locked in an unsolvable situation of mutually hurting stalemate and, often with international assistance, they have come to consensual agreements. These include settlements in Northern Ireland, Aceh, Bougainville, Sudan (at least the South and East), to name but the most prominent from among a clutch of about twenty-two cases. Suddenly, it seems, self-determination conflicts can be settled, although it remains a difficult process and one where implementation is generally no less complicated than the process of reaching agreement. The new wave of settlements can be roughly divided into three principal categories. First, there are autonomy settlements that trade self-government for a cessation of violence. Such settlements will generate a special status for the formerly secessionist entity or entities while the overall state remains basically unchanged. But asymmetrical autonomy settlements of this kind have certain risks. They tend to be concluded in circumstances where the government sees no prospect even of forcible reincorporation of the entity in question. Instead, the unit will be granted a special status within the state, offering comprehensive selfgovernance with minimum involvement by the central authorities. Settlements concluded under such pressure will tend to neglect the need to assure good governance, including human rights, within the newly autonomous body. Too often, power is simply handed on to the resistance fighters, who will feel entitled to rule forevermore and who have learnt that they gain little by playing according to the rules of the international system. Also, some settlements fail to add a sufficiently strong integrative element, to balance the autonomy. These are, technically, poor and incomplete settlements, concluded because a bad peace is better than perpetual conflict. This study considers the designs for the Philippines and the proposed settlements concerning Moldova and Georgia as examples of this category. It asks whether these designs have advanced upon traditional autonomy solutions and manage to avoid these pitfalls by starting to deploy complex power-sharing techniques in addition to simple autonomy. In the course of our study, we have developed the concept of complex powersharing. Complex power-sharing describes a solution where there is a complex

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layering of public authority, both horizontally and vertically. This will include autonomous structures. This is matched by the application of consociationalist techniques, such as governmental power-sharing, guaranteed parliamentary representation for the minority, veto rights for ethnic communities or ethno-territorial entities, the granting of minority rights and agreements on the transfer of economic resources. In addition, there is an element of international involvement in the negotiation and implementation of the settlement, and in post-conflict governance. If public power is allocated to various points, from the local level to regions to the central, and perhaps even the international level, it is no longer easily possible to determine where sovereignty actually lies. Contested sovereignty therefore is no longer an all-or-nothing, zero-sum game. Power is exercised at the layer where public services can be delivered best. Where power is retained at the centre, this is balanced by the consociationalist techniques mentioned above, such as guaranteed representation of regions in the overall government and legislature, soft blocking powers relating to the vital interests of the respective ethnic communities, and international corrective mechanisms helping to ensure compliance by all actors. A first attempt to adopt this method was made in the Good Friday Agreement on Northern Ireland, which is studied at length in the present volume. This technique was deployed in its most pronounced form in relation to Bosnia and Herzegovina. There, an extreme amount of public power was assigned to the constituent units, to the exclusion of the centre. Moreover, the functioning of the overall state was mortgaged through the application of wide-ranging veto powers on the part of of the constituent units. Secessionist pressure remained strong. This situation could only be contained through the long-term presence of a sizeable military force. Moreover, the inability of the veto-bound institutions to generate decisions was compensated for by the Office of the High Representative. This body was intended to have advisory powers, but gradually turned itself into an institution of co-governance. Many observers foresaw a collapse of Bosnia and Herzegovina. However, some ten years after the Dayton agreements, it appears as if this design, and the passage of time, have managed to keep in place the unity of the state. Gradually, the Bosnian institutions are taking over more of the functions of government independently and the international security presence is reducing. Since Dayton, power-sharing designs have improved. Macedonia, for instance, managed to address the concerns of the sizeable ethnic Albanian community without introducing changes that would block the functioning of the overall state. While Bosnia and Macedonia are still at some risk – a risk that may increase in the light of further developments relating to Kosovo – complex power-sharing is generally seen as a success. In addition to more advanced autonomy settlements and complex power-sharing, a third approach would focus on tackling the self-determination dimension in a more direct way. As was already noted, autonomy and complex power-sharing will generally trade claims to independence for self-government within the state and a greater share in the decision-making of the overall state. The renun-

Settling Self-determination Conflicts: an Introduction

ciation of the self-determination claim is meant to be permanent. However, in a number of instances, such an approach was not feasible. Instead, the possibility of eventual independence is provided for in various forms. First, there can be what is called constitutional self-determination. In these cases, the central state adds a provision to its constitutional arrangements expressly providing for the possibility of secession. For instance, the constitution of Ethiopia now provides that every nation, nationality, and people in the country “has an unconditional right to self-determination and secession”. Lichtenstein even allows every municipality to “remove itself ” from the principality if it so wishes. Canada has recognized in the Clarity Act that it would act in accordance with a clear and unambiguous outcome of a referendum on secession. The UK’s unwritten constitution, too, would accept the outcome of a genuine exercise of popular will in Scotland or Wales. This approach attempts to forestall self-determination conflicts by clarifying that independence can be an option, provided it is brought about by a transparent and democratic campaign within the entity in question, and provided that a potential divorce is the result of negotiation between the centre and the entity. Where self-determination is, in principle, available, pressure for the exercise of the independence option may lessen. A somewhat more limited application of this approach is evident in deferrals of the self-determination issue, by promising mechanisms to address it in the future. This tack was taken in the 1999 Rambouillet agreement on Kosovo, which provided for the calling of an international meeting to determine mechanisms for a final settlement for Kosovo after a period of three years. Security Council Resolution 1244 (1999) also provided for a process towards a final settlement without adding any specifics. It took the renewed outbreak of ethnic violence in Kosovo in March 2004 to remind the organized international community of this commitment, and to organize the present process of negotiations on the future status of Kosovo in Vienna. Another approach consists of an even balancing of self-determination claims where conflict has already happened. This is the secret of the Good Friday Agreement on Northern Ireland. On the one hand, it confirms that the island of Ireland as a whole is a self-determination unit. On the other hand, it also establishes that no change in the present status can be obtained without the joint consent of the populations of Northern Ireland and the South, respectively. In that sense, the North, too, can claim to be a self-determination entity, given that no decision about status can be taken without its consent. Both sides, it is hoped, can defend the agreement in relation to their respective constituents without having to admit to having given up the essential self-determination claim. In the meantime, power-sharing mechanisms are meant to provide for stable and effective governance and a gradual building of confidence among the populations that will isolate those bent on violence ever further. Where the balancing of self-determination claims is not possible, recent practice has generated the concept of external and internal conditionality of selfdetermination. An example of external conditionality is furnished by the 1994

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agreement on the status of the autonomous territory of Gagauzia within Moldova. The agreement proclaims that the entity has a special status as a form of self-determination of the Gagauzes. Should the Republic of Moldova undergo a significant modification of its own status, for instance by way of a merger of its ethnically Romanian-inhabited territories with Romania, then Gagauzia too would have the right of external self-determination. Internal conditionality was established in relation to Bougainville. The people of that island have the right to hold a referendum on independence from Papua New Guinea no earlier than ten years and no later than fifteen years after the election of the first autonomous government under the terms of the settlement. However, the decision on the holding of the referendum is also dependent on whether or not weapons have been effectively disposed of on the island by that date, and whether good governance prevails. It is therefore up to the authorities in Bougainville internally to create the conditions necessary for triggering the referendum. The Bougainville settlement is inspired by the hope of the central government that ten to fifteen years of genuine autonomy may lessen the pressure for independence. The population might realize, it is hoped, that it has more to gain from a continued association with a larger state. A similar hope is expressed in the 2005 settlement on Southern Sudan. Both North and South are supposed to campaign for continued unity during an interim period of six years of self-governance for the South. Then the population in the South can decide on independence in a referendum. In this instance, the emphasis on seeking to maintain continued unity is window dressing, given the general expectation that the South will express itself with one voice in favour of independence. Conditionality serves as a face-saving device to help the central government disguise the fact that it has, after prolonged and bloody conflict, agreed to eventual independence. At present, the organized international community is still desperately seeking a way of finding a justification or disguising of the inevitable independence of Kosovo. Belgrade is hardly likely to consent to any settlement that would lead to independence. The international actors would not wish to admit that an entity outside of the colonial context, such as Kosovo, does have a right to selfdetermination in the sense of secession. Accordingly, it may be determined that independence can also occur as a result of an international settlement process driven by the need to maintain stability in a certain region. Moreover, Kosovo’s unique status under the former Yugoslav constitution can be invoked, given that it granted federal powers to Kosovo much like those of the full republics that gained independence as a result of the dissolution of Yugoslavia. What, then, are we to make of this profusion of settlements and of differing approaches? The good news is that there is a realization that the old, restrictive doctrine of self-determination does not help resolve the issue in the post colonial world. Neither does ignoring the problem. Accordingly, enhanced autonomy settlements and complex power-sharing arrangements have been adopted to offer alternatives short of secession if it can be avoided or as a step towards independence where it is inevitable. This study reviews in its first volume many

Settling Self-determination Conflicts: an Introduction

of the most prominent examples. The second part of this work seeks to draw cross-cutting lessons from this experience, addressing issues ranging from state construction to security sector reform, human rights, economic issues, etc. The project as a whole, however, also pursues a more theoretical aim. It seeks to address the consociationalist – integrationalist divide that has long dominated the literature in this field. This study asks whether these approaches really are irreconcilable, or whether the concept of complex power-sharing manages to build on that which is best in both of them. Our hypothesis is that complex power-sharing is a useful and powerful tool to address secessionist conflicts if the self-determination claim itself is denied or deferred. Our studies show that complex power-sharing involves autonomy and consociationist techniques in the first settlement stage. Once ethnic stabilization has occurred, integrative techniques can be increasingly applied, in order to transform an interim situation into a permanent solution. Throughout, international involvement can offer a crucial contribution to dissolving tensions and lessening the effect of the zero-sum game of ethnic politics.

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Section One Framework and Case Studies

Part One Historical and Theoretical Framework

Chapter 1 Nationalism, Self-determination, and the Doctrine of Territorial Unity James Mayall

The grumbling dispute between the United States of America and Turkey in the run-up to the Iraq war over the future status of the Kurdish-occupied region of Northern Iraq provides a powerful contemporary illustration of both the need for complex power-sharing as a solution to self-determination disputes and the continuing political difficulties in achieving it. Many Kurds believe that they were robbed of their right of self-determination, which was first conceded at the time of the Versailles Peace Conference and then withdrawn following Ataturk’s revolution in post-Ottoman Turkey. It would be surprising if some of them at least would not see in the overthrow of Saddam Hussein’s regime in Iraq a chance to redeem this pledge. It would be equally surprising if Turkey – which has only recently abandoned its attempt to forcibly assimilate its own Kurdish population and still regards the main Kurdish party as a terrorist organization – did not view this prospect with grave concern. The need to reassure Turkey led those charged with framing a new Iraqi constitution towards a de-centralized powersharing solution that would guarantee continued autonomy for the Kurds while meeting the international commitment to maintain Iraq’s territorial unity. Beyond recognition of their cultural and language rights – which some claim have been granted only to give Turkey’s application to join the European Union some chance of future success – it seems unlikely that Turkey’s Kurdish minority will be equally fortunate. If we are to understand the problems, as well as the prospects for diverting such disputes away from secessionist and other forms of civil conflict, we need to ask first why self-determination claims more often than not become part of the problem than of the solution. The answer lies in two deeply etched features of the international landscape: the central role of sovereignty and the contested nature of nationalism. Sovereignty is a doctrine of political supremacy over a population living within the internationally recognized boundaries of a particular state. Internally, the principle is upheld by the government’s claim to monopolize both legitimate force and jurisdiction within the territory; externally, sovereigns look to the recognition of their peers. From this point of view, international sociMarc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 5-16



James Mayall

ety is composed of solipsists, whose cooperation is confined to recognizing each other’s narcissism. Just as turkeys don’t vote for Christmas, states don’t favour a carve-up except when it favours them. Traditional international society was largely composed of dynastic sovereign states. The patrimony of the rulers – and with it the borders of their states – could be changed as a result of the fortunes of war or the construction of dynastic alliances through marriage, and consequently also by the acquisition of title through inheritance. The members of international society were thus the sovereign states, not their populations. This conception was challenged by the American and French Revolutions, but the United States was only peripherally involved in international relations during its early years and, after the defeat of Napoleon in 1815, the old real-estate system was restored in Europe. It survived, dented but more or less intact, until the First World War. Since 1919, international society has ostensibly been based on a principle of popular sovereignty, namely national self-determination. The collapse of the Hapsburg, Hohenzollern, Romanov and Ottoman empires dealt a mortal blow to the dynastic principle. It was no longer possible to defend the state as a private possession of particular individuals or families. But if prescription was out, consent had to be in; ownership of the state, in other words, had to be transferred to the people. The difficulty in effecting this transfer arose because, in the last analysis, individuals alone can give or withhold consent. Yet individuals do not and cannot live alone. Which, therefore, are the appropriate collective selves, whose right to self-determination must be recognized as the basis of the new political order? This question would be straightforward if the identity of the nation were selfevident. For most nationalists, this is indeed the case. They almost invariably invoke particular historical myths and theories to justify their own claims and to denigrate those of their opponents. Once in power, they habitually use the school curriculum to perpetuate their favoured national myths and to construct a national culture that will both justify and run congruently with state boundaries. Whether they succeed in this endeavour or not, the reality is that while the doctrine of nationalism is clear – i.e., that the world should be divided into nation states – the question of national identity is contested. Two broad theoretical answers have been advanced in response to the question of national identity, although within each of them there are a number of variations, some of which overlap. Primordialists maintain that the national map of the world was laid down a very long time ago, even if very few these days cling to the belief that it accurately reflects the natural world, which can therefore be assumed to have remained essentially unaltered since the beginning of human history (Smith 1985). By contrast, modernists see the nation as a recent invention, dating, except for a few somewhat anomalous, or at least unexplained cases, only from the American and French revolutions (Gellner 1983, 1997). For primordialist writers, assigning the right to self-determination is, in principle, a soluble problem, however difficult it may be in practice. Perhaps, just because it is so difficult, they do not often address the matter directly. The recipe

1  Nationalism, Self-determination, and the Doctrine of Territorial Unity

is deceptively simple. First find your ethnic group or ethnicity. This is done by identifying a group of people who share one or more of a list of ‘objective’ characteristics (the ‘one or more’ is normally added to accommodate Switzerland) – a name, a common language, a homeland in which they generally although not invariably reside, common symbols, a common myth of origin or ancestry and a sense of themselves as a people with a shared history of triumphs and disasters and, on the basis of these, shared hopes and aspirations. Modernists have paid almost as little attention to the international implications of their theories as the primordialists have. For the most part, their interest is in the historical and sociological conditions that ushered in the nationalist era rather than in the justification offered for a state’s entry into international society. Thus, for example, Gellner (1983, 1997) argued that a national culture was a necessary accompaniment to the transition from agricultural to modern society, largely because the division of labour on which industrialism depends, and the competition to which it leads, requires occupational mobility and therefore a literate and trainable labour force. Peasants, who mostly stay in one place, do not need to read and write in order to function and tend to regard whoever governs them with deep suspicion. On the other hand, modern states require educated citizens whose loyalty they can command. In attempting to explain why citizens themselves identify with the state, the modernist author Benedict Anderson has traced the rise of the nation to the development of print capitalism; the profit motive requiring a market of readers, which in turn put a premium on the production of literary works in the vernacular and allow for an imagined community of people who do not know one another directly (Anderson 1983). Anderson and Gellner – and indeed most modernist writers on nationalism – adopt a broadly realist approach to international relations, to the extent that they consider them, which is not often. They seldom address legal or normative questions at all. At the same time, implicit in their arguments is the recognition that political identity – like political boundaries – is a contingent matter. This is the crucial point. What is contingent cannot be settled by rational argument or a democratic vote. For political argument to take place, boundaries must be in place, but they lie behind or beyond such argument all the same. This reality was not immediately grasped in 1919 and many democrats are reluctant to accept it even now. The original Wilsonian solution to the problem was the plebiscite. It failed, not merely because of the irreconcilable territorial claims in Central and Eastern Europe after the First World War, nor because the great powers had no intention of testing their legitimate title in their own possessions by this method, but also because it too regarded the identity question as self-evident. As Ivor Jennings famously put it in 1956, “on the surface it seemed reasonable: let the people decide. It was in practice ridiculous because the people cannot decide until someone decides who are the people.” (Jennings 1956: 56). The attempt to democratize international society deepened rather than mitigated the problem. Popular sovereignty, if it meant anything, implied consent, but Jennings was right, it could not tell you whose consent was to count. When the drafters of the United Nations Charter and the Universal Declaration of Hu-





James Mayall

man Rights turned their attention to the right of self-determination, they referred to peoples rather than nations, presumably in an attempt to avoid the destructive confusion that had accompanied the reconstruction of Europe after 1918. Eventually, the territorial claims and counter-claims of the European successor states had been settled politically, broadly along national lines. But while this was better than allowing free rein to forced population movements and or communal massacres, it nonetheless left plenty of room for conflict. Nor did the minority rights treaties that were imposed, and consequently much resented, as the price of admission to the League of Nations provide the necessary reassurance. The wording of the UN Charter was not a huge improvement. Finding objective criteria to define ‘a people’ is no easier than – indeed, no different from – defining a nation, unless that is, the right is assigned to pre-existing states or territorial units and the people, whoever they may be, are simply assumed to be identified with and represented by state governments. Whether or not those who drew up these documents were already clear about what they were doing, the principle was in practice interpreted as applying – ex-post facto – to all existing states and to the overseas colonies of the European imperial powers. It was also generally accepted, in a move that made greater psychological than logical or legal sense, that self-determination required the end of apartheid in South Africa. Despite a rearguard action by defenders of the imperial idea (for example, Burns 1957; Seton Watson 1960) at the time it was not seriously advanced in relation to the Soviet Union’s imperial legacy, on the eastern fringes of Europe, around the Baltic, in Central Asia and beyond. Nor were most governments willing to insist on a democratic test of opinion before extending international recognition to states that underwent a revolution. It is true that the United States attempted – for more than twenty years successfully – to blackball the People’s Republic of China from the United Nations, but even Washington’s closest allies were unimpressed by this attempt to enforce ideological conformity across international borders and in obvious defiance of Article 2(7) of the Charter. Irredentism got equally short shrift. Around the edges of their inheritance, some colonial successor states consolidated their territory without suffering serious international consequences: thus, India swallowed Goa; Indonesia, first West Irian and then, in 1974, East Timor; and China, Tibet – a decidedly pre-modern form of conquest, which the outside world was nonetheless able to digest because the country had never enjoyed formal sovereignty or international recognition. But, in general, during the Cold War there was widespread antipathy to opening up the domestic political arrangements of sovereign states to outside scrutiny, and no indication that the forceful pursuit of irredentist claims – outside the immediate context of European imperial withdrawal – would be tolerated. This conventional interpretation was accepted by the Soviet Union when it put itself into ‘voluntary’ liquidation after 1989. The different Soviet Socialist Republics were treated as colonies with a right to self-determination, a right that was not extended to autonomous regions such as Chechnya within the Russian Federation itself. Nothing in the conventional interpretation of self-determination

1  Nationalism, Self-determination, and the Doctrine of Territorial Unity

prevented secession where it could be agreed. There were precedents – Norway’s secession from Sweden, Ireland’s from the UK, Singapore’s from Malaysia, the separation of the Czech and Slovak republics – before and after decolonization and before and after the Cold War. But if it did happen, it did not happen very often and it did not dispose state authorities to recognize any general right of secessionist self-determination. After 1989, some observers concluded that the apparent stability of the conventional interpretation – only Bangladesh fought its way to independence and international recognition and then only with Indian help – meant that it was a function of the Cold War. There are two obvious weaknesses with this view. First, the conventional interpretation was constantly challenged – in Burma, Canada, Nigeria, Sri Lanka, Sudan and elsewhere – it merely did not engage the full attention of the strongest powers, which were preoccupied with the Cold War confrontation. Secondly, the evidence suggests that its adoption had more to do with the territorial imperative than with the Cold War. It is a depressing fact that national sovereignty, unlike its dynastic predecessor, seems to transform land into a positional good. Irredentist claims are seldom abandoned altogether, but the ambitions of governments that harbour them – such as Spain to Gibraltar, the Philippines to Sabah, Morocco to Mauritania, the Republic of Ireland to Ulster, Argentina to the Falklands, and Taiwan to the Chinese mainland, face formidable practical constraints. Despite their disagreement on most other issues, the superpowers would not openly support such territorial change. On this issue at least, they also supported the international legal prohibition on the use of force as an instrument of foreign policy. With the partial exception of the Spanish claim to Gibraltar, which was sympathetically viewed by African states on anti-colonial grounds, most other states were similarly hostile to proposals to redraw the political map. The extent to which the Wilsonian vision of a world made safe for democracy and national self-determination would challenge rather than support the international order became evident immediately after the First World War. The gruesome consequences of the demands for organic democracy in much of Europe were submerged by the Second World War and the territorial stabilization imposed on Europe by the Cold War division and the re-introduction, in the east, of authoritarian rather than democratic rule. The end of the Cold War put the clock back, revealing that little had been done in Europe to resolve the underlying problem in the meantime. The post-colonial attempt to avoid a similar outcome looked back to the nineteenth century. The irredentist wars that followed the withdrawal of Spain and Portugal from South America – most famously the war between Paraguay and the Triple Alliance, which killed off a major part of Paraguay’s population – provided a warning of the dreadful consequences of treating territory as a positional good and therefore as non-negotiable. The principle of uti possidetis juris was intended as a practical solution to an otherwise unresolvable ethical problem. Since appealing to the principle of self-determination could not settle the issue of rival territorial claims, what criteria were to be used to decide who had title? The



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answer was that, in the absence of a negotiated boundary adjustment, successor states would accept the borders that they had inherited at independence. The principle was revived after 1960 when African successor states, whose leaders had often previously called for the redrawing of African boundaries in line with African social and cultural realities, became fearful of opening a Pandora’s box of ethnic claims and counter-claims. As already noted, the principle did not originally enjoy the same status in post-colonial Asia, where several coercive consolidations occurred in the immediate aftermath of decolonization, and in the case of Indonesia’s annexation of East Timor, as late as 1974. However, this annexation was increasingly referred to as an aberration, and in 1999 the conventional interpretation of self-determination as decolonization was used to justify the territory’s claim to independence and to distinguish it from separatist demands elsewhere in the Indonesian archipelago (Mayall 2000). Uti possidetis was also imported into the former Soviet Union and Eastern Europe where it was used to transform the internal administrative boundaries of the Soviet Union and, after much bloodshed, of the former Yugoslav Republic, into internationally recognized borders. Secession seldom solves the human problem to which it is addressed, namely the need to buttress the identity and enhance the security of the breakaway population. The reason is that it creates disenfranchised minority groups trapped within the new states. To that extent, the application of uti possidetis is a useful exercise in damage limitation. In a recent legal study, Steven Ratner concluded, somewhat optimistically, that the principle need not trump self-determination because the circumstances that had made it good law in the colonial context no longer applied. He is no doubt right to argue that “decolonization did not have to entail adoption of uti possidetis” but, strictly speaking he is wrong to maintain that it was adopted “because it kept decolonization – a development regarded almost universally as imperative – orderly” (Ratner 1996: 610). It was a post-colonial not a colonial law. It was revived not by the departing colonial powers but by successor African governments, although it certainly appealed to state authorities everywhere as a principle of order. It is also true that sometimes there are possibilities for satisfying demands for self-determination – and hence strengthening security – without creating a new independent state. Referenda were used successfully, although not without offering future hostages to fortune, in settling the national identity of the divided Trust territories of Cameroon and Togo at the time of independence from Britain and France. South Tyrol is a more recent example. Such cases, however, are more the exceptions that prove the rule that under conditions of democratic government, there is nothing so difficult to change as an international border. What is to happen, moreover, when such rational solutions are not accepted because a previously internal border that was regarded as tolerable within the framework of a Federation, as in Tito’s Yugoslavia, is not accepted as legitimate within the context of its dissolution and independent statehood? Or, as in Sudan, when those who win control of a successor state seek to replace the indirect rule of the former imperial power by forced assimilation and/or centralized nation-

1  Nationalism, Self-determination, and the Doctrine of Territorial Unity

building? These symptoms generally presage a slide towards a form of pathological ultra-nationalism. When they are present, the flip side of the uti possidetis doctrine becomes apparent. It ceases to operate as an incentive to rational problem-solving, and serves instead to legitimize savagery and the militarization of society to a point where the cure is often worse than the disease. It is not hard to think of examples from most parts of the world. In Africa, for example, it was unfortunate that the model that was inherited at independence was that of the national security state, although, in the majority of cases, there was no external threat. This inheritance paved the way for the widespread military hijacking of the state apparatus, which was regarded by the new politicomilitary class as an exploitable resource for their own enrichment. In many countries, the government itself was the major source of insecurity. Nor is it clear that the return to civilian, and ostensibly democratic, rule in many African countries during the 1990s has done much to improve either the self-determination or security of the mass of the population. Uti possidetis has three main weaknesses as a mechanism for conflict resolution, as opposed to an ordering principle for an established society of states. First, popular passions are more likely to be involved in the dispute. This may be, as in the Serbian attachment to Kosovo, because a territory, or even an entire landscape, is imbued with symbolic significance within a particular nationalist mythology. Alternatively, it may be that changes in the regional and wider international climate provide an opportunity for a majority community to overturn the traditional dominance of a minority, as with the Kosovo Albanians or the Rwandan Hutu. Where political life is organized along lines of communal confrontation, the fact that there is no local or international provision for territorial adjustment can lead society to implode. The case of Somalia, where the state disintegrated once the safety valve of irredentism in the Ogaden was closed in 1978, provides a dramatic illustration of this possibility. The second reason why the uti possidetis principle may backfire is simply that there is no appeal beyond it. Admittedly, it was the central aim of the Westphalia system to remove such an appeal in inter-state relations. But, in the period between 1648 and the French Revolution, the fact that territory could change hands without it having a cathartic effect on the lives of ordinary people allowed the system to operate more or less as intended. Once politics were nationalized, military defeat in contested territory such as Alsace-Lorraine began to be followed by mass population transfers. The twentieth century attempts to outlaw war as an instrument of foreign policy amounted to a recognition that, in a world of popular sovereignties, territory could no longer be treated as so much real estate, to be traded on the battlefield, brought under new ownership by inclusion in the dowry of royal brides, or literally bought and sold as in the cases of the Louisiana and Oregon purchases and Alaska. The final unfortunate side-effect of the doctrine is that it raises the symbolic value of holding territory at a time when changes in the nature of the world economy are undermining both its economic value and the ability of many governments to resolve internal political problems by economic means. Many of the

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mercantilist moorings of the international economy have been sheared, with the result that it can no longer be accurately described as primarily a set of inter-state relationships and transactions. The main challenge to the conventional interpretation of self-determination as de-colonialization came from secessionists: these were, after all, precisely those who took the principle seriously, and who understandably drew the conclusion that, if self-determination was a fundamental human right, then it should apply to them. Of the three secessionist crises that spilled onto the world stage during the Cold War – Katanga, Biafra and Bangladesh – only the Biafran case was debated seriously in terms of the substantive meaning of self-determination. The reintegration of Katanga into the Congo was the price the United States was prepared to pay to marginalize Soviet influence within the United Nations peacekeeping operation. The rebellion in East Bengal was often explained by academic analysts in terms of a theory of internal colonialism, but it was the Indian army that expelled Pakistan, not the Bangladeshis themselves. Biafra’s bid for independence collapsed because, unlike Bangladesh, the Biafrans failed to secure a powerful external patron who was prepared to defy the international consensus in favour of the territorial status quo. France came close, but, in the end, de Gaulle indicated that he would be guided by African opinion. By 1969, four African states – Ivory Coast, Gabon, Tanzania and Zambia – had broken ranks and recognized the Biafran government. A number of others were rumoured to be sympathetic to its cause. At the annual OAU Summit in 1969, President Nyerere of Tanzania circulated a memorandum to his fellow African Heads of State. Nyerere had himself proposed the 1964 OAU resolution, which committed African countries to accept the boundaries inherited at independence, but he now urged that, in this case, they should abandon the commitment. His argument was straightforward, and in its own terms, compelling. Colonial borders, Nyerere suggested, had been accepted for practical reasons – to facilitate interstate cooperation, minimize opportunities for conflict and to release energies that could be better devoted to development and improving the lot of Africa’s peoples. Nonetheless, the right of governments to rule rested on their ability to serve the population as a whole. When a government could no longer protect the lives of all of its citizens, and when a particular group believed itself to be threatened by genocide, it forfeited its legitimacy. In these circumstances, the same political considerations that had earlier led him to accept existing territorial arrangements could now (and in his view, should) be advanced in support of partition. Nyerere’s attempt to establish internal standards of accountability and good government as relevant criteria for international recognition failed. His argument was revived, however, after the Cold War by the then UN Secretary-General Boutros Boutros-Ghali, at least implicitly. In his Agenda For Peace, the document that was commissioned following the first ever Security Council Summit in January 1992, he made three statements that seemed to hint at a process of managed constitutional reform for international society. 

Tanzania’s memorandum on Biafra’s case. For text, see Kirk-Greene (1971: 429–439).

1  Nationalism, Self-determination, and the Doctrine of Territorial Unity

First, he insisted that the state must remain as the foundation stone, but that its authority was not absolute. “Respect for its fundamental sovereignty and integrity are crucial to any common international progress. The time of absolute and exclusive sovereignty, however, has passed; its theory was never matched by reality.” Secondly, he argued that while the United Nations had not closed its doors to new members, “if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic wellbeing for all would become ever more difficult to achieve.” Finally, he suggested that the way to resolve the rival claims of sovereignty and self-determination was through respect for human rights, particularly the rights of minorities, on the one hand, and democratization, on the other. “Respect for democratic principles at all levels of social existence is crucial: in communities, within states and within the community of states.” The admission that the United Nations had not closed its doors to new members offered a hostage to fortune, since the Secretary General did not specify the circumstances under which the principle of uti possidetis might legitimately be breached in the future. At the same time, because the democratic side had won the Cold War, if only by default, its victory ensured that claims for selfdetermination would henceforth have to be cast in democratic form. The two international experts consulted by the Canadian government for an opinion on whether Quebec might have a unilateral right of secession provided some indication of the way legal opinion on the subject was evolving. They were clear that Quebec did not have such a right but nonetheless concluded that “there may be developments in the principle of self-determination according to which not only colonialism but also flagrant violations of human rights or undemocratic regimes could lead to a right of unilateral secession” (Department of Justice 1997). Since the underlying problem of political identity remains unresolved, it is probably inevitable that, despite such rulings, secessionists will continue to press their democratic right to self-determination. The odds against success are still long, however. The two successful cases of enforced secession since the end of the Cold War – Eritrea’s separation from Ethiopia in 1993 and East Timor’s from Indonesia in 1999 – are better explained by reference to the conventional interpretation of self-determination as decolonization in accordance with uti possidetis, than in terms of the evolution of new criteria. If at least some potential secessionists are to be persuaded that complex power-sharing represents a more rational way of resolving self-determination disputes, it will be necessary to convince them first that democracy and secession are likely to prove incompatible in practice. There are three main arguments. The first is that secession must be ruled out both to avoid anarchy and in the interests of public welfare. This was the posi 

Boutros Boutros-Ghali, Agenda for Peace, paragraphs 17 and 18. For text, see Roberts and Kingsbury (1993: Appendix A, 468–498). The two experts were Professor James Crawford, Whewell Professor of International Law, University of Cambridge; and Professor Luzius Wildhaber, University of Basel. Professor Wildhaber is also a judge on the European Court of Human Rights.

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tion adopted by Abraham Lincoln during the American Civil War and, in a much diluted form, it survives in Boutros Boutros-Ghali’s Agenda for Peace. All citizens have the same fundamental rights, grounded in the constitution and protected by law. The only way the minority can become the majority, on this view, is by persuading the majority to change their allegiance at the next election. Guaranteed rights of free speech and free association allow them, in principle, to compete on level terms with the government for the affections of the people. The theory is attractive: there is no ground for holding that opposition will be regarded as treachery, and the government itself will be regularly held to account and will be changed following electoral defeat. The trouble is that, at the end of the twentieth century, as in the middle of the nineteenth, this is not an accurate description of social reality in many parts of the world. In particular, as Harry Beran has pointed out, it cannot deal with societies that are structurally deeply divided (Beran 1987: 39–42). The argument that Jinnah advanced on behalf of the Muslim League fifty years ago was that Indian Muslims were a separate people, in a sense that would inevitably define and limit their political destiny. They could not see themselves as other than Muslims, and they could not hope to become the majority under any foreseeable circumstances. On the basis of this argument, the British were eventually persuaded to partition the country. Whether this was a wise, or indeed a necessary decision, will no doubt continue to be debated amongst historians and nationalists in both India and Pakistan. The relevant point is that until power was transferred at midnight on August 15 1947, the British remained in control and were, therefore, in a position to make the decision. International society has no such authority to settle conflicts in societies where people insist on identifying themselves in ethnic or communal terms rather than as citizens. After the Croatian Declaration of Independence in 1991, the government wooed international recognition by passing legislation to protect Serbian rights. The trouble was that Serbs were not reassured and continued to resist rule from Zagreb. A blind eye had to be turned toward the ethnic cleansing of the Krajina before Croatia would accept the American-brokered settlement in Bosnia. Similarly, when in 1994 the RPF began to close in on Kigali, the Hutu-dominated government of Rwanda launched a genocide rather than surrender power. In such cases, Lincoln’s splendidly civic argument fails to address not merely the aspirations but, much more importantly, the fears of the people on both sides of the conflict. The second argument is that democracy will be subverted and political freedom destroyed where two or more powerful national groups compete through the ballot box to capture the state. This is the instrumental, as distinct from rightsbased, defence of partition advanced by Mill in Representative Government (Mill 1865: Chapter XVI). Written in the 1860s, it can be read as an almost uncanny prediction of what happened in Yugoslavia in the early 1990s. Mill’s argument is implicitly historicist: a non-national or civic national democracy will only emerge if peoples of different nationality have grown accustomed to living together – and being governed under a single authority – prior to the era of both nationalism and democracy. However, if national self-consciousness and a desire for ‘free in-

1  Nationalism, Self-determination, and the Doctrine of Territorial Unity

stitutions’ emerge together, the absence of an overarching political culture will ensure that democracy will act as a source of conflict rather than of legitimacy. The merit of Mill’s argument is its concern with practical outcomes rather than collective rights in any abstract sense. His primary concern is how to protect human freedom; his advocacy of partition under certain circumstances is directed to the same end, not the conservation of particular national cultures or forms of life as ends in themselves. For those committed to the latter objectives, it is Mill’s indifference to minorities that are not sufficiently numerous to strike at the democratic foundations of the state that most weakens his argument’s appeal. Except in this limiting case, Mill was as opposed to secession as Lincoln, and his assimilationist assumption that minority discontent could be overcome by education, while benign in intention and possibly true in some cases and over the very long term, has been falsified by events in many parts of the world. The third argument is that, while the existence of a nation is a prerequisite for democracy, nations will come into being, in the future as in the past, only through a process of struggle and self-assertion against other forms of imposed imperial sovereignty. This bleak argument rests on a compelling but not necessarily ethnic logic. The essence of representative democracy is majority rule. No matter how consociational the constitutional arrangements, there will always be some party or interest that is left out of the ruling coalition. So what is it that persuades the minority to put up with rule by the majority? Lincoln had suggested that it was the opportunity to change the government by swinging public opinion behind the opposition. But why should they be prepared to wait, particularly if the odds on success at the polls are long and there seems a better chance of influencing events by taking the law into their own hands? A possible answer is that the minority will only put up with majority rule if there is some overarching community sentiment, that is stronger than the conflicts of ideological, economic or political interest that customarily divide people on a daily basis. It is not clear that a community of this kind can be engineered, at least from the outside. But we know that most, if not all, well-established nation-states develop democratic institutions only after a prolonged period of power struggles and feuding at home and abroad. Even the United States had to fight a civil war to prove to themselves that they were one people and not two. Collective amnesia, as Renan famously remarked, as much as shared memories or invented traditions, is a defining characteristic of most nations (Renan 1882). Whether it is true that behind every great fortune there is a great crime, it is difficult to think of a great nation (or even a small one for that matter) that does not rest on great cruelties and/or injustices in its past. The difficulty posed by this argument is only too apparent: on the one hand, as an account of how the democratic world came into being and maintains itself it is plausible; on the other hand, insofar as it condemns us to live – indeed to define ourselves – by the sword, it is morally repellent. Moreover, governments of all ideological persuasions have accepted the legal prohibition on the use of force except in self-defence, a view that is challenged but not fundamentally repudiated by the new American doctrine of preemption. According to the argument in question, the twentieth century world

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wars were fought, as least partly, to replace the rule of the sword with that of the constitution, internationally as well as nationally. This process was interrupted by the Cold War, but there is no evidence to suggest that the popular hunger for self-government that erupted after 1989 was an aberration. None of these arguments for and against secession in the name of secession is satisfactory. The first fails on empirical and the second on moral grounds, while the third endorses violence as the midwife of change. If, as I have argued, it is impossible to devise rational rules for redrawing the political map to accommodate the aspirations of all self-conscious groups, it remains to be asked whether there is an alternative way of interpreting self-determination within international society. The evidence reviewed in the case studies in this book suggests that complex power-sharing, sometimes of a federal or confederal kind, sometimes of a consociational kind, may indeed provide such a way forward. It seems unlikely that many groups will be initially willing to forgo the temptation of framing their political programmes in romantic and/or essentialist and uncompromising terms. The very complexity that is necessary to keep those who have been long involved in deadly conflict from returning to the battlefield is also itself something of a deterrent – the culture of nationalist insurgency will be familiar to those who have done the fighting and whose education seldom fits them to benefit from the peace. Nonetheless, when the battle cannot be won, a window of opportunity will eventually be opened for rational argument. The cases reviewed here may not add up to a trend, but they do suggest that strategies exist that are capable of being adapted to different circumstances and that may prove acceptable to all parties – in the first case to cover the transition from war to peace – and possibly for the longer term as well.

Chapter 2 Why the Legal Rules on Self-determination Do Not Resolve Self-determination Disputes* Marc Weller

I

Introduction

“It is for the people to determine the destiny of the territory and not the territory the destiny of the people.” This renowned definition of the right to self-determination, expressed by Judge Dillard in his Individual Opinion in the 1975 Western Sahara case, proves two things. First, it confirms that lawyers, too, can manage a pretty turn of phrase. Second, this statement, perhaps like no other famous dictum in international law, demonstrates the dangers of well-intentioned judicial activism, for there has rarely been a pronouncement more dangerously mistaken than this one. Judge Dillard proposes, most sensibly it seems at first sight, that people must triumph over the accidents of geography and of historically established territorial divisions. People act according to their free will and must therefore be able to shape their destiny through collective decisions. Since 1945, this view underpins the international system as a legitimizing myth. The legitimacy of its most basic building block, the ‘sovereign’ state, is derived from the assumption that the state is nothing other than a machine to form and implement an aggregated common will of its people. Accordingly, the state itself is supposed to have been formed by an act of will of its citizens. If the creation of the state is the product of an act of will, then a further collective decision should also suffice to undo it. Moreover, human beings do not surrender their free will by deciding to join into, or form, a collectivity. Hence, one would presume that groups within an existing state must also be able to assert their will by deciding to leave an existing state and form a new sovereign unit. Such a decision would be made manifest by an expression of will of the population concerned, for instance through a referendum. While this sounds logical, reality is, of course, very different. The international system has ‘balanced’ the competing aims of accommodating the ideology of free * 

An earlier version of this chapter appeared in 4(2) Ethnopolitics (2005). Western Sahara, 1975 ICJ 12, 122.

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 17-45

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will against the purported aim of maintaining stability, order and peace. Accordingly, the international system has developed in a way that can, on the one hand, draw legitimacy from a doctrine of popular will. The political principle, and legal rule, of self-determination is the most potent expression of this concept. However, on the other hand, those who operate the system have ensured that the very doctrine of self-determination that purports to enfranchise people actually serves to disenfranchise them, in the interest of maintaining peace and stability. Rather than offering citizens a choice, the doctrine of self-determination has been constructed in a way to limit or deny choice. In fact, generally self-determination is a rule that empowers those who oppose choice, even by violent means, where the territorial definition of the state is concerned. Rather than preventing conflict, however, the rule of self-determination has generated a dynamic that sustains conflict. For, those who seek to assert their identity are forced into an absolute position. As the international system only privileges the interest of the state over the position of groups challenging its territorial unity, most central governments feel under no pressure to accommodate demands for change. Constitutional settlements that might maintain the unity of the state while permitting a greater expression of diverse identities through the legal and political system have therefore often been denied. Instead, the state will tend to label groups that agitate for a more pronounced identity as secessionists and rebels. Under cover of international rules, it will attempt to suppress these. However, in most instances, this has not led to a disappearance of the problem. Instead of giving up, in many instances resistance groups have responded by radicalizing their demands, claiming that only outright statehood can preserve the interests of their constituents – as is demonstrated by the very repression that was launched by the central state in response to their original campaign. A vicious circle ensues. Given the absence of any sort of international remedy – states having protected their freedom to engage ‘rebellions’ of this kind in an undisturbed manner through the doctrine of non-intervention – the opposition movements will often see an armed struggle as the only way of furthering their aims. These types of conflict have been among the most damaging and protracted that have bedevilled states and the international system since 1945. Marshall and Gurr list seventy-two self-determination conflicts that have been conducted over that period, with only twenty-four of these having been settled or concluded through victory by one side (Marshall and Gurr 2003: 30). They have been sustained, rather than resolved, through the doctrine of self-determination. The doctrine has energized secessionist movements, on the one hand, in their mistaken belief that they are engaged in a just struggle that must ultimately be recognized by the international system. On the other hand, the governments have taken comfort in the fact that they have constructed the self-determination rule in a way that does not in any way affect their ability to quash separatist groups. Accordingly, virtually all of the instances of opposed unilateral secession (a) resulted in violent conflict and were (b) either brought to a close through a decisive victory of the government, or they festered for decades. A classical example is furnished by the extremely destructive conflict over Biafra that resulted in a

2  Why the Legal Rules on Self-determination Do Not Resolve: Self-determination Disputes

humanitarian catastrophe. The United Nations refused to intervene during the conflict and only mounted a humanitarian operation after Nigeria had defeated the secession. In another instance, Katanga seceded from the Congo at the point of decolonization. A UN peacekeeping force actually defeated the secessionists under a slightly ambiguous UN mandate. Only East Pakistan managed to obtain statehood through unilateral opposed secession, although under rather unique circumstances, and in consequence of an armed action from neighbouring India. Where there was no decisive military result, conflicts have continued at times over decades. For instance, some of the ethnic self-determination insurgencies in relation to Burma/Myanmar have persisted literally since independence over half a century ago, others have been concluded only very recently. Of course, the rigidity of the classical doctrine of self-determination has been subjected to numerous challenges since it consolidated during the 1960s. In particular, the unfreezing of the Cold War certainties since 1989 has brought with it significant challenges to the doctrine of territorial unity. However, as this chapter will argue, even these challenges were addressed in a way that has left the restrictive doctrine of self-determination in place. The result is the fragile insistence on the continued existence or territorial unity of threatened states in Eastern and Central Europe. In Bosnia and Herzegovina, a massive international military presence has been deployed for a full ten years now with this end in mind. In relation to Moldova and Georgia, the OSCE has been attempting for a similar period to negotiate settlements to the Transdniestria, Abkhaz and South Ossetia conflicts that somehow maintain the unity of both states. Similarly, initial pledges were made to maintain the territorial integrity of the former Yugoslav Federation (Serbia and Montenegro) in relation to Kosovo, however impossible that might ultimately appear to be. Nevertheless, after the disasters of the destructive ethnopolitical and ethnoterritorial conflicts of the Balkans, the Caucasus and other areas of the first half of the 1990s, a ray of hope has emerged. We can now see the emergence of some self-determination settlements that appear to indicate a willingness of central governments, the self-styled self-determination movements and international actors to escape from the trap imposed by the self-determination rule. Hence, new settlements have been emerging that do not always necessarily preclude selfdetermination in the sense of secession, while at the same time offering a new relationship between the central state and the secessionist unit that could make continued territorial unity possible. This chapter dissects the main strands of classical discourse about self-determination. It then turns to consider the development of the doctrine of constitutional self-determination – an innovation of the 1990s – and asks whether it offers a solution to self-determination conflicts. It then briefly introduces the most recent practice of complex power-sharing settlements and asks whether these will indeed point a way out of the self-determination trap – an issue pursued further in Chapter 12.

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II

The Classical Right to Self-determination

Self-determination disenfranchises populations. This process of disenfranchisement has traditionally proceeded in five steps. First, self-determination is intrinsically linked with, and deployed to justify, the disenfranchizing doctrine of territorial unity. Second, there is the issue of the definition of the object of protection of the right to self-determination – that is to say, the definition of the types of ‘people’ entitled to exercise this right. Third, there is the scope of application of the right to self-determination. That is to say, even if a ‘people’ is designated as a right holder, does this right trump previously existing territorial definitions, or is it exercised within these confines? Then, there is the issue of the singularity of implementation of the right – is it a continuous process, or is it a one-time-only event? Finally, there is the problem of the modalities of achieving the point of self-determination. Before turning to each of these features of classical self-determination discourse in turn, it might be useful first to distinguish the concept from other contexts in which it is used. A

A Concept with Multiple Meanings

This book addresses self-determination as the right of all peoples freely to determine their political, economic and social status – the formulation used in virtually all relevant UN documents addressing the issue. However, this definition is broad and can be taken to encompass both external and internal self-determination. External self-determination will normally be taken to include the right to secession. Internal self-determination concerns the choice of a system of governance and the administration of the functions of governance according to the will of the governed. The following are examples of the different layers of meaning of self-determination in a legal sense: • Self-determination as an individual right: self-determination is not only a right exercised by peoples or groups. It is also a human right of individuals. Hence, individuals are entitled to participation in the political, economic or cultural system of their state. In that sense, the individual right to self-determination might be seen to be co-extensive with the right to some form of democratic governance. However, for a long time, this ‘right’ has been reduced to an underlying political doctrine that was not actionable. It is only now, albeit somewhat hesitantly, surfacing as a firm legal entitlement. • Self-determination as a right appertaining to members of groups and perhaps groups themselves: self-determination is also a right that can be invoked by members of certain groups, such as national, religious, ethnic or linguistic minorities. In this sense, self-determination is congruent with minority rights. Minority rights protect the existence of national, religious, linguistic or ethnic groups, facilitate the development of their identity and ensure that they can fully and effectively participate in all aspects of public life within the state. While it was previously argued that minority rights are only held

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•

•

•

by members of minorities individually, it is clear that they can exercise these rights in community with others. There may also be emerging a recognition of a group identity as an object of legal protection, although this remains controversial. This includes entitlements to cultural autonomy. Some would argue that there may also be an entitlement to territorial autonomy where national minorities constitute a local majority, but this is not accepted as yet in general practice. Self-determination and indigenous peoples: in addition to their cultural identity, indigenous populations tend to claim a historic and particularly strong bond with certain territories they have occupied since time immemorial. Indigenous rights, therefore, not only seek to enhance the maintenance of the cultural identities of indigenous peoples, but they may also extend to land rights and political/territorial autonomies. While the technical term ‘people’ is applied to indigenous populations in ILO Convention 169, the Convention immediately clarifies that this is not meant to imply a people’s right to external self-determination in the sense of international law. Self-determination in case of a limited territorial change: where a significant tranche of territory is moved from one sovereign to another, the population of that territory may be entitled to express and subsequently exercise its preferences through a plebiscite. As opposed to the self-determination of peoples, this entitlement does not extend to a free determination of the international legal status of the territory – for instance to opt for independence or association with a third state. Instead, it is limited to an endorsement or rejection of the change that is proposed by the governments concerned. This doctrine is, however, displaced in certain circumstances, for instance in cases of territorial change that is anticipated in historical arrangements, such as the handover of Hong Kong. At times, it may be contested whether the inhabitants of the territory in question are a ‘people’ entitled to self-determination of peoples, or merely a population attached to a stretch of territory and hence only entitled to a plebiscite. For instance, the population of Gibraltar might argue that it is a people entitled to full self-determination, while Spain and the United Kingdom take somewhat differing views in relation to a more limited form of self-determination that may apply subject to the provisions of the Treaty of Utrecht of 1713. That treaty provides that the territory must revert to Spain should the UK ever withdraw from it. External self-determination of peoples: self-determination of peoples implies a right unilaterally to initiate a change in the status of a territory through an act of will of the population of that entire territory. In this way, self-determination of peoples differs from the right of a population to co-determine the future of a portion of territory through a plebiscite that was just noted above. This latter kind of ‘self-determination’ is ancillary to a decision of states to effect a transfer of territory. A population rejects or ratifies the decision of the states involved. Self-determination of peoples, on the other hand, is an original right that is vested in ‘a people’, merely by virtue of the fact that the technical label ‘people’ attaches to a specific population and

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territory. Whether the state involved favours any sort of territorial change is inconsequential; the exercise of the will of the ‘people’ so nominated is alone decisive. Manifestly, the doctrine of self-determination has different legal consequences in these different contexts. Within the confines of this discussion, the principal focus must lie on self-determination as an entitlement of ‘peoples’ freely to determine the international legal status of a territory. B

The Issue of State Consent

Virtually all inhabitable portions of the globe are subject to territorial jurisdiction by one state or another. Virtually all human beings also find attached to themselves the claim to jurisdiction of at least one state. Hence, if people wish to form a new state, this can only occur at the expense of an existing one, both in terms of human and territorial resources. This can occur either with the consent of the central government concerned or, more likely, against the opposition of the government. In the former case, it is of course not necessary to rely on a right to self-determination. A divorce by agreement has occurred in a few instances (e.g., Malaysia/Singapore). Where this consent from the central government is lacking, the international system will tend to deny legal personality to those seeking separation. This may appear illogical, as the relevance of the ‘sovereign’ acts, such as the granting of consent, of the central government in relation to the entity seeking secession constitutes the essence of any self-determination dispute. However, the legal system protects the claims of governments and will normally only offer status if the government concerned is content. Changes of status by consent occur in a number of instances. These include: • Instances where one state joins another. For instance, when the new German Federal states of the former German Democratic Republic joined the Federal Republic of Germany, the legal personality of the latter persisted, with the former being extinguished. There can also be state unions, where a new composite state is formed, with both constituent entities relinquishing their international legal personality. • Instances of dissolution of composite states. The division of Czechoslovakia into the Czech and Slovak Republics serves as an example. Czechoslovakia disappeared as a sovereign entity. In contrast, the constitution of the Union of Serbia and Montenegro provided for the continuation of legal personality of the overall state by Serbia, once Montenegro opted to leave. Similarly, when the Soviet Union dissolved, all its successor states agreed that the Russian Federation would continue the legal personality of the former Union. • Instances of secession. In such cases, it is clear that only one element of a composite state splits off, without putting into question the legal personality of the state. An example is furnished by the secession by agreement of Eritrea from Ethiopia.

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The manifestation of an act of will of the population is necessary even where a government agrees to the separation of certain territories. Hence, the agreement on the possible secession of Eritrea required the holding of a referendum after an interim period, to confirm that this change in status is indeed in accordance with popular will. Again, however, there remains a crucial difference to cases of opposed secession. The exercise of the will of the population followed on from a previous agreement by the central government that a referendum could be held and that its results would be respected. An international legal entitlement to selfdetermination was not necessarily the trigger for this process at the outset. Instead, the exercise of self-determination flowed from a previous, voluntary decision of the newly constituted central government that consisted of the victorious former rebel movements. Subsequently, Ethiopia entered into its constitution a provision permitting in advance the secession of its remaining constituent units – a case of constitutional self-determination that will be considered later. In contrast, the essence of the traditional right of self-determination of peoples is that it in itself constitutes a valid basis for a claim to secede, irrespective of the wishes of the central government. Therefore, one is really talking about a right to unilateral and mostly opposed secession. Naturally, such a right is perceived to be very dangerous by governments, as it can be exercised autonomously from their consent and control. Hence, it is not surprising that the right to self-determination in the sense of unilateral and opposed secession has been defined very restrictively. After all, it is the governments that make the law in the international sphere, and they can be expected to do so according to their shared perception of central state interests. C

Self-determination as an Exceptional Right

The right to opposed unilateral secession stands in obvious tension with the claim to territorial integrity and unity of existing states. Governments have enshrined the doctrine of territorial unity in countless international declarations and other instruments, often tied to, or twinned with declarations concerning self-determination. The first element of disenfranchisement that obtains lies in the very existence of a right to self-determination. While this right purports to enfranchise populations wishing to exercise their will, it does the opposite. In generating what is an exceptional entitlement to secession, self-determination appears to confirm that secession is not otherwise available in circumstances where the central government refuses to consent to a separation. This strengthens the view that a secession that is not covered by the exceptional right to (colonial) self-determination amounts to an internationally unlawful act. This, for example, was the view (wrongly) taken by the rump-Yugoslavia in relation to Croatia, Slovenia, Bosnia and Herzegovina, and Montenegro. The consequence of this – mistaken – view would be that an entity that succeeds in secession would be an unlawful entity. Unlawful entities are well known in international law. These are entities that have come into being in violation of essential rules of the international commu-

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nity as a whole, such as the prohibition of the use of force by states (Northern Cyprus), the right to self-determination (Southern Rhodesia after its Unilateral Declaration of Independence by the white minority government), the prohibition of apartheid (the so-called Banthustans), or the prohibition of genocide and ethnic cleansing (the Republika Srpska and Herzeg Bosna). Such entities may display the objective criteria of statehood of territory, population and government. However, this will not trigger the consequence of statehood that would ordinarily obtain. Instead, these entities are non-states and all states may be under an obligation not to recognize them as states or to assist them in maintaining their illegal status. Practice shows that opposed unilateral secession that does not involve the unlawful use of external force, genocide, apartheid, etc., is not in itself internationally unlawful. Hence, an entity that manages to secede and to maintain itself effectively can over time obtain statehood, and have this fact confirmed through international recognition, even if the central government objects. However, in its attempts to obtain statehood, the entity is not legally privileged – it enjoys no right as a legal subject in and of itself. Therefore, the central government will continue to claim an entitlement to incorporate the seceding entity through fire and sword if necessary. This entitlement would persist until the point in time when the entity has demonstrated its effectiveness to the extent necessary for statehood. However, in the absence of external recognition, it is difficult to identify this point in time. After all, the central government (or former central government) can argue that the entity is not effective, and will never be effective, as it only exists so long as it is not forcibly re-incorporated. And such an act can occur at any moment chosen by the central government. One might say that Somaliland is at present in such a state of legal uncertainty. As was already noted above, Biafra and Katanga are examples of entities that were forcibly re-incorporated, without much international opposition. Chechnya, too, was subjected to armed re-incorporation, despite assurances to the contrary that had been given by Moscow in a series of peace settlements. It is by way of a lack of international legal protection of its status that an ‘effective entity’ differs greatly from a ‘self-determination entity’. The latter is internationally privileged long before it obtains effective independence. Indeed, it is the essence of the right to self-determination to ensure that a self-determination entity can freely exercise the option of independence if it so wishes. The former has to fight the threat or attempt of forcible reincorporation and will only mature into a state if it wins decisively and with a prospect of permanency of its new status emerging. An armed contest is therefore a structural element of discourse about self-determination outside of the context of self-determination entities as they have been classically defined. D

The Definition of the Entity

The classical right of colonial self-determination is now a core part of international law and enjoys a status that is legally superior to other international norms

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that do not enjoy this elevated position (ius cogens). However, it is applied only to colonial and non-self-governing territories, of which there are practically none left. This is the second disenfranchizing aspect of the doctrine of self-determination: it is established as an exception to the doctrine of territorial unity (above), but the exception is framed so narrowly that it does not apply to many or any situations of struggle for independence outside of the colonial context. There is no formal definition of what constitutes a colonial territory. However, as a rule of thumb, it only includes those territories that one would intuitively recognize as such. These are territories that were forcibly acquired by a racially distinct metropolitan power divided by an ocean during the time of imperialism and subjected to a colonial regime for the purposes of economic exploitation. The long list of qualifications contained in this sentence indicates the lengths governments have gone to in order to ensure that self-determination cannot ever be invoked against themselves. Colonial self-determination only consolidated into a firm legal rule in the early 1960s, when the only remaining colonial powers resisting decolonization were international pariahs. These were, principally, Portugal and Spain, both held in the grip of dictatorships. Analogous situations to which the rule of colonial self-determination was also applied (Palestine and South Africa) were similarly unique. Hence, it was safe for the rest of the governments of the world to consecrate the doctrine of self-determination as a firm legal rule, provided it could only be applied to these ‘others’. In relation to them, self-determination was framed as a very aggressive doctrine, in order to help address the historic injustice that was, by then, clearly recognized in relation to these special cases. Of course, many populations in other circumstances claim to be disenfranchised or suppressed. They will argue that they, too, have been subjected to colonialism. However, they are excluded from the application of the concept. For example, Chechnya argued that it was forcibly incorporated into Russia during the period of imperialism and colonially exploited. Nevertheless, its claims to colonial self-determination were simply brushed aside on the international stage. Some politicians in Kosovo were tempted to make a similar argument in relation to Serbia. Again, this argument would not have offered a chance of success. Kosovo therefore instead opted for making an argument based on constitutional self-determination. As was already noted, in addition to genuine colonies, it is accepted that peoples living under alien occupation (Palestine) and under racist regimes (formerly South Africa) are entitled to the right of self-determination. The same applies to ‘secondary’ colonies. These are entities that were entitled to colonial self-determination in the first place. However, when they were at the very point of administering the act of self-determination, they were forcibly incorporated into another state. East Timor and Western Sahara are the two principal examples of this phenomenon. The recent holding of a referendum in East Timor and its inde

In the UN framework, there exists a technical identification of ‘non-self-governing territories’. However, this definition is not that useful in new contexts.

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pendence are therefore an example of colonial self-determination in the classical sense, although held with some delay, rather than constitutional self-determination. E

Scope of Application

While self-determination is an activist right that is intended to overcome the evils of colonialism, it is in fact administered in a way that is consistent with the territorial designs and administrative practices imposed by the colonizers. This is the third level of disenfranchisement administered through the doctrine of selfdetermination. For the definition of the entity that is entitled to exercise the right of self-determination is in itself a product of colonial administration. Hence, selfdetermination does not aim to restore ethnic or tribal links amongst populations that were artificially divided by the colonizers. Instead, the ‘people’ entitled to self-determination are those who happen to live within the colonial boundaries drawn by the colonial powers. Accordingly, the International Court of Justice confirmed in relation to the Western Sahara that links may have existed between that territory and Morocco before colonialism. However, these would not be restored through self-determination. The pre-existing links were not of a kind that could displace the right to separate identity that was actually manufactured through the process of colonial administration – the very evil the doctrine of self-determination purports to overcome. Morocco had argued that the people of the Western Sahara had previously owed allegiance to its leadership. This relationship had been artificially disrupted by the imposition of Spanish colonial rule in the Western Sahara. Now that colonialism was in the process of being removed, the previous status should be restored and the Western Sahara should fall to Morocco once more. This view was rejected by the Court. While the Court confirmed that there may have been some pre-existing legal links between the two territories, the very act of colonialism is constitutive of a new legal status for the colonial entity. Colonialism generates the self-determination entity and therefore defines the state that may ensue. That entity holds original rights that displace legal ties that might have existed before. Most strikingly this was also affirmed in relation to the island of Timor. Once Portugal withdrew from East Timor, Indonesia claimed that the island should be unified again and the Eastern part would naturally merge with the Western section. However, the separate colonial administration of the East by Portugal, as opposed to Dutch administration in the West, had rendered it a separate self-determination entity. Indonesia’s occupation of the island was therefore internationally opposed as an act undertaken in violation of the right to self-determination. As was noted above, eventually Indonesia consented to the holding of a referendum on genuine self-determination. That referendum was strongly in favour of independence, which was subsequently implemented with the assistance of an international peacekeeping/enforcement mission. The aim of decolonization is therefore not the restoration of the situation that may have existed before colonialism. Instead, action is taken in a way that does

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not fully overcome, but merely reshapes, facts on the basis of the reality of colonial administration. And it is the territorial shape of that administration that defines the self-determination entity, not the will of the people. Herein lies the third element of disenfranchisement. Contrary to the dictum of Judge Dillard quoted at the outset, it is not the act of free will of populations that can fully assert itself. Instead, it can only apply itself within boundaries that have been colonially defined. For instance, different ethnic groups within a colonial territory would not be entitled to form separate states, or perhaps to associate in part with neighboring ethnic kin states. Instead, the entire territory, as defined by the colonial masters, must exercise the right to self-determination as one whole and undivided entity. While some might regard this practice of retaining ‘artificial’ colonial boundaries as reprehensible, it has been accepted by the African states upon independence. In fact, it has been fiercely defended by them. This principle of uti possidetis has been described by the International Court of Justice as follows: 21. … The fact that the new African States have respected the administrative boundaries and frontiers established by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope. … 23. … The essence of the principle lies in its primary aim of securing respect for the territorial boundaries that moment when independence is achieved. … 24. … There is no doubt that the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis. Hence, the numerous solemn affirmations of the intangibility of the frontiers existing at the time of the independence of African States, whether made by senior African statesmen or by organs of the Organization of African Unity itself, are evidently declaratory rather than constitutive: they recognize and confirm an existing principle, and do not seek to consecrate a new principle or the extension to Africa of a rule previously applied only in another continent. 25. However, it may be wondered how the time-hallowed principle has been able to withstand the new approaches to international law as expressed in Africa, where the successive attainment of independence and the emergence of new States have been accompanied by a certain questioning of traditional international law. At first sight this principle conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, have induced African States judiciously to consent to the respecting of colonial frontiers, 

Burkina Faso/Mali Frontier Dispute, Merits, 1986 ICJ 564.

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Subsequently, this doctrine was endorsed by the Badinter Commission appointed by the European Community to advise on international legal issues in the context of the dissolution of Yugoslavia. According to this view, uti possidetis applies as a universal principle in all regions of the world. F

Self-determination as a Singularity

The fourth layer of disenfranchisement relates to the fact that colonial self-determination is an ‘act’ that occurs only once, and not an ongoing process. Of course, self-determination continues to occur in its internal sense, according to the doctrine of democratic governance. However, in its external sense, it is a once-in-alifetime opportunity. Hence, once a colonial territory had exercized the option of independence or integration (the exception being, theoretically, association), the right to external self-determination would have expired. Self-determination is not available to distinct ethnic entities within the selfdetermination unit that may feel that they too should have had the option of secession from secession. The doctrine of territorial unity protects the territorial identity of the self-determination entity before, during and after the act of selfdetermination. The present dispute involving Comores and Mayotte may serve as an example, as does the following extract from a submission to the United Nations by Sri Lanka: 2. It is the position of the Government of Sri Lanka that the words “the right to selfdetermination” … apply only to people under alien and foreign domination and these words do not apply to sovereign independent states or to a section of a people or nation. It is well recognized in international law that the principle of self-determination cannot be construed as authorizing any action which would dismember or impair totally or in part the territorial integrity or political unity of sovereign and independent States. This article of the Covenant cannot therefore be interpreted to connote the recognition of the dismemberment and fragmentation on ethnic and religious grounds. Such an interpretation would clearly be contrary, inter alia, to General Assembly Resolution 2526 (XXV) on the Declaration of Principles of International Law and incompatible with the purposes and principles of the Charter. 



An exception to this rule would relate to a self-determination entity that decides to associate, but not integrate, with another state, instead of opting for independence. Through association, the self-determination status of the entity is retained, or one might say, it is transformed into a case of constitutional self-determination. However, there is very little practice of this kind. International Covenant on Civil and Political Rights, Third Periodic Reports of States Parties due in 1991, Addendum, Report Submitted by Sri Lanka, 18 July 1994, CCPR/ C/70/Add.6, 27 September 1994.

2  Why the Legal Rules on Self-determination Do Not Resolve: Self-determination Disputes

In 1991, the doctrine of uti possidetis has been found to apply not only in the colonial context. The Badinter Commission ruled that the constituent republics of the Socialist Federal Republic of Yugoslavia might turn into states. However, entities within the republics – for instance, the mainly ethnic Serb-inhabited Krajina region – could not make similar claims. According to the doctrine of uti possidetis, they might only claim territorial autonomy within the new state boundaries. It will be convenient to return to this issue when considering the new practice of constitutional self-determination. Before doing so, however, it is necessary to consider the fifth step in the chain of disenfranchisement that lurks within the doctrine of self-determination. G

Modalities of Reaching the Point of Self-determination

We have already noted that self-determination exceptionally enfranchises colonial peoples struggling for the right to opt for a new status within colonial boundaries at one unique point of decision. All other cases are excluded and therefore subjected to the negative, disenfranchising element of the doctrine of self-determination. These are: • Cases that arise outside of a colonial context. As the colonial context is defined very restrictively, this includes many instances of perceived colonialism on the part of historically disenfranchised populations (Corsicans, Basques, Chechens, Kosovars, etc). • Cases that arise within the colonial context, but where populations want to escape from the colonial definition of the self-determination entity and the subsequent state (India-Pakistan (Kashmir), Komores and Mayotte, Bougainville, Burma, Sri Lanka, Sudan, etc). • Cases where the entity in question opposes the purported initial act of selfdetermination in the form of association or integration and seeks to replay its decision (formerly Eritrea and Somaliland, which violently questioned their integration at the point of decolonization with Ethiopia and Somalia respectively). The treatment by the international system of classical colonial cases of self-determination is very different from the vast majority of self-determination conflicts that remain. Those entities that qualify as classical self-determination entities are legally entitled to mount a struggle. If the colonial state resists and represses the struggle, there is a right to wage an armed struggle. While this struggle has the form of a civil war as a matter of fact, on the legal plane the national liberation movement representing the self-determination entity is entitled to turn it into an international conflict in terms of international humanitarian law. That is to say, national liberation fighters are to be treated according to the same privileges enjoyed by combatants in international armed conflicts, including prisoner of war status. Moreover, and controversially, the self-determination entity is entitled to receive military support from abroad. This would probably not include the direct support of foreign armed forces, but would include the basing of national libera-

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tion fighters in neighbouring territories, and training, equipping and supplying them there. The government, on the other hand, is not entitled to receive international support. In short, the system has been arranged in a way to ensure that the national liberation struggle will ultimately be a success. Given the ‘corrective’ nature of the doctrine of self-determination in relation to the evil of colonialism, this should not be controversial. However, it is important not to confuse national liberation warfare with an open licence to engage in acts of terrorism or other grave violations. Such atrocities are never permissible, even in the cause of an internationally lawful struggle of anti-colonial liberation. In cases outside of the colonial context, the system is rigged in order to ensure that the state prevails. However unjustly treated by history a self-styled ‘national liberation movement’ may feel, their struggle is legally classified as a purely internal domestic rebellion. The central state can use its military or police power to repress and defeat such a movement. No external assistance may be given to those struggling against the central government. Instead, traditionally, the government was taken to be entitled to receive as much military support and assistance, including probably the involvement of foreign forces it may invite into the country, as it may deem necessary to crush the rebellion. The rebels themselves are not elevated by humanitarian law to the status of combatants that enjoy the full protection of the law of international armed conflict. The government would claim the right to treat them as traitors and bandits under the domestic law of the state. Instead of being treated as prisoners of war, they can be criminally convicted and shot. Their only hope lies in the minimal protection of the law of internal armed conflict if the rebellion has taken on a significant territorial scope, as well as that of general human rights. The fifth element of disenfranchisement therefore relates to the imbalance in the status of those struggling for independence outside of the colonial context and the state. Unless another state is willing to break the rules and intervene (as occurred when India invaded East Pakistan in an operation that led to the establishment of the state of Bangladesh), self-determination struggles could classically only result in a crushing defeat for the rebellion (Biafra) or an eternal stalemate, sustained over decades through low intensity fighting and perhaps terrorist campaigns that cannot be decisively defeated by the central government. The imbalance in status not only relates to the fact that the government can treat those struggling for purported liberation as criminals in its domestic law. Those engaged in the struggle are disenfranchised twice in this instance – domestically, where their status is determined by their opponents, and internationally. As was already noted, at the international level the doctrine of non-intervention ensures that even those groups that control large slices of the territory and population of a state cannot attract international support or recognition, or significant international entitlements that would flow from some sort of international legal personality. An outside government that offers support to a secessionist movement is guilty of an act of unlawful intervention. External agencies have, in the past, even been cautious about political initiatives aimed at settling a self-determination conflict, lest this be considered illegitimate interference. Accordingly,

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the government seeking to oppose secession has classically also been largely immune from diplomatic pressure or even external sanctions in relation to its attitude. The doctrine of non-intervention has provided a cover for quite brutal uses of force against secessionist entities, often at the cost of very significant civilian suffering. While other governments may have, on occasion, feebly requested that at least systematic and grave human rights abuses should cease (most recently in relation to Chechnya), they have traditionally not felt able to insist that violence cannot be a means of settling self-determination conflicts. Force being an acceptable option, or even the expected, routine response, threatened governments have therefore generally done their utmost to achieve a military defeat of secession. Negotiations on a settlement were not foreseen in the international script and international pressure for a negotiated settlement would have been deemed intervention. Hence, it was victory for the state and crushing defeat for those that claim an entitlement to self-determination, or, where a decisive result cannot be achieved, a prolonged, mutually hurting stalemate. This has only recently changed in two types of situations. In the first instance, stalemate proved no longer acceptable domestically (Northern Ireland, Sudan, perhaps Sri Lanka). In another kind of case, the humanitarian suffering resulting from the fighting, or the instability brought to neighbouring regions, have been invoked to justify actual external armed intervention. As a result of such intervention that may have been initially focused on humanitarian concerns, the intervenors have found themselves constrained also to address the underlying self-determination conflict. In Bosnia and Herzegovina, they found themselves committed to the continued territorial integrity of that state, while initially accepting the reality of its internal division. In relation to Kosovo, an internationalized status settlement is now being prepared. In relation to Northern Iraq, the US government and others have attempted to generate a solution to the Kurdish issue. The presumption that force is the appropriate remedy to secessionist aspirations has recently been put into question in the case of the dissolution of the Socialist Federal Republic of Yugoslavia. However, as we shall see, this incident has not established a general inhibition on the use of force as the principal form of discourse in such instances. Instead, it has drawn attention to a new aspect of the right to self-determination that had not been acted upon previously. This is the doctrine of constitutional self-determination. II

Constitutional Self-determination

The crucial difference between colonial and constitutional self-determination lies in the fact that, in the former case, the right to secession is based directly in international law. In the latter, the claim to self-determination is derived from a constitutional arrangement that establishes a separate legal personality for component parts of the overall state. The constitution of a state is taken to be a manifestation of the sovereign will of the state population. International law now

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appears to takes note of these features of domestic constitutional law and gives effect to them. However, it is not constitutive of the claim to self-determination. It is possible to distinguish three different types of constitutional self-determination: • Express self-determination status. • Effective dissolution of a federal-type state. • Implied self-determination status. It will be convenient to consider each of these in turn. A

Express Self-determination Status

A few constitutions will determine that certain nominated constituent entities enjoy a right to external self-determination. One such clear case has been furnished by the new Ethiopian constitution that was adopted after the final victory of the internal opposition forces that displaced the central government. Article 39(5) of the new constitution of 8 December 1994 declares with the greatest clarity that: “Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession.” Paragraph 5 adds an unusual definition: A ‘Nation, Nationality or People’ for the purpose of this Constitution, is a group of people who have or share a large measure of a common culture or similar customs, mutual intelligibility of language, belief in a common or related identities, a common psychological make-up, and who inhabit an identifiable, predominantly contiguous territory.

Another example is furnished by the Constitution of the Principality of Liechtenstein. Article 4(2) permits each municipality to “remove itself from the statecommunity.” In both instances, the constitutions provide for a certain process that must be gone through before secession. An interesting sub-species of express constitutional self-determination is conditional self-determination. For instance, the Law on the Special Legal Status of Gagauzia describes that autonomous territorial unit within Moldova as an “integral part of the Republic” (Article 1(1)). Nevertheless: In case of a change of the status of the Republic of Moldova as an independent state, the people of Gagauzia shall have the right to external self-determination (Article 1(4)).

The change that is being contemplated is a possible division of Moldova, with its larger segment possibly joining Romania. The identity of this conditional constitutional self-determination unit is defined in an unusual way too. Localities in which (ethnic) Gagauzes constitute less than fifty per cent of the population may be included in the autonomous territo

Author’s translation.

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rial unit on “on the basis of the freely expressed will of a majority of the electorate revealed during a local referendum” (Article 5(2)). Accordingly, this would be one of the more recent examples, where the will of the people does, after all, triumph over previous administrative/territorial arrangements. This is an interesting departure from the classical colonial self-determination practice. Ordinarily, constitutional self-determination will assign a right to secession only to federal-type territorial units, such as constituent republics, that are clearly defined in terms of territory. The classical example is furnished in the constitution of the former Union of Soviet Socialist Republics, the USSR. In accordance with Leninist doctrine, Article 70 of the Constitution of 7 October 1977 provided that the Union is an integral, federal, multinational state formed on the principle of socialist federalism as a result of the free self-determination of nations and the voluntary association of equal Soviet Socialist Republics. Article 72 simply added that: “Each Union Republic shall retain the right freely to secede from the USSR”. Of course, it was probably not anticipated that any Union Republic would ever dare to assert this constitutional right of self-determination. When, in 1989/1990, the Baltic republics declared their intention to revive their full sovereignty and move towards full independence, this was strongly resisted by Moscow. Given the clear and unambiguous nature of Article 72 of the Constitution, it was not easy to justify such a stance. However, in rather a strained argument, attention was drawn to Article 78, which required ratification by the USSR of changes to the boundaries of the Union Republics agreed among themselves, and to provisions assigning competence in relation to the external boundaries of the federation to the centre. This interpretation would render the unilateral right of secession established in Article 72 meaningless, and a legal race developed on this issue between the Baltic republics and Moscow. The central Congress of People’s deputies worked at high speed to prepare a “Law on Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR”. That instrument, finally brought into effect on 3 April 1990, provided for a lengthy interim period of at least five years, and left to the central Congress of USSR People’s Deputies a final decision on giving effect to the will of the population of the republic concerned. However, the previous month, on 11 March, Lithuania had declared the renewal of its independence. This event triggered a somewhat ambiguous response, especially on the part of Western states. Many of these had never recognized de jure the incorporation of the Baltic republics into the Soviet Union, arguing that this had occurred as 



In the Philippines autonomy settlement (Final Peace Agreement between the Government of the Republic of the Philippines and the Moro National Liberation Front of June 1996, at www.ecmi.de), the autonomous unit is also constituted through a plebiscite, although no external self-determination is provided for. Article 73(2) assigned jurisdiction to the USSR in relation to the determination of the state boundaries of the USSR and also approval of changes in the boundaries between Union Republics.

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the result of an unlawful use of force. Accordingly, it was difficult for them to insist on the doctrine of territorial unity in this instance. On the other hand, very few – other than heroic Iceland which did accord its recognition – were willing to act on principle when confronting this fact. The issue was resolved when the USSR dissolved entirely in the wake of an unsuccessful coup against President Gorbachev. At that point, Western governments fell over themselves in seeking to outdo one another in extending rapid recognition. The case of the USSR therefore became one of outright dissolution of a federal state, and the argument of express constitutional self-determination was not fully tested in this instance. While, ultimately, the Socialist Federal Republic of Yugoslavia also dissolved (see below), there was nevertheless a strand of argument in relation to the secession of Croatia and Slovenia that can be seen as the point of discovery of this claim to self-determination in international relations. The 1974 SFRY constitution provided that: The nations of Yugoslavia, proceeding from the right of every nation to self-determination, including the right to secession, on the basis of their will freely expressed in the common struggle of all nations and nationalities in the National Liberation War and Socialist Revolution, and in conformity with their historic aspirations, aware that further consolidation of their brotherhood and unity is in the common interest, have, together with the nationalities with which they live, united in a federal republic of free and equal nations and nationalities and founded a socialist federal community of working people – the Socialist Federal Republic of Yugoslavia ...10

This provision quite clearly assigned to all ‘nations’ contained in the federation the right to self-determination, including expressly the right of secession. Each of the federal republics was seen as the political expression of the constituent nations. Hence, the republic had had assigned to them an express right to selfdetermination and secession. This proposition was put to the test in 1991. Under the Milosevic regime, Serbia had gained the ascendancy within the Yugoslav federation during the second half of the 1980s. With the support of some other compliant republics, it was undoing the careful balancing act between the different republics that was reflected in the design of Tito’s 1974 constitution. Kosovo, in particular, suffered the virtual unilateral abolition of its autonomy. Faced with this change in the balance of powers within the Federation, Croatia and Slovenia attempted to protect their position by proposing a new federal constitution that would enhance their status. Negotiations toward this end conducted during 1990 and early 1991 were frustrated by Serbia. Croatia and Slovenia then unilaterally declared independence on 25/26 June 1991. The central government in Belgrade had been unwilling to settle, as compromise would mean a surrender of some of the very powers it had just captured. The republics – and  10

Latvia and Estonia had adopted declarations concerning full independence in May and August 1990, respectively. Constitution of the Socialist Federal Republic of Yugoslavia, Basic Principles, Sec I.

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Kosovo – would have no option but to comply. After all, the international system uniquely privileged the central government, permitting it to deploy the armed forces of the state if necessary, in order to defend the central value of territorial unity. Based on state practice over the past decades, it was clear that independence was no option. While international actors tried very hard to dissuade Croatia and Slovenia from declaring independence, they rapidly acknowledged this fact once it occurred. When Belgrade proceeded to answer the declarations of independence of Slovenia and Croatia of 25 and 26 June 1991 with the use of force, the international community, led by the EU, took a somewhat ambivalent step. While it failed to recognize the two entities until January 1992, it nevertheless adopted the following unprecedented view only a few weeks after the declarations of independence: The European Community and its member States are dismayed at the increasing violence in Croatia. They remind those responsible for the violence of their determination never to recognize changes of frontiers which have not been brought about by peaceful means and by agreement. ... The Community and its member States call on the Federal Presidency to put an immediate end to this illegal use of the forces on its command.11

In short, while Belgrade continued to invoke the doctrine of territorial unity, the EU took the view that both entities were either already states, or entitled to become states and in possession of pre-state rights. These were the right to territorial integrity and unity, and the protection against the use of force by the central government. The EU then attempted unsuccessfully to negotiate an orderly secession. When this failed, it declared, through the medium of its Badinter arbitration/advisory commission, that the entire Yugoslav federation was in a process of dissolution. Obviously, this was not an agreed dissolution, which would have been legally unproblematic. Instead, it would be an effective dissolution that was still being opposed from the centre. Nevertheless, the Badinter Commission held, and the EU government accepted, that the individual republics that wished independence would obtain it unilaterally, provided that they complied with a number of requirements, including the holding of a free and fair referendum and the acceptance of minority rights guarantees. Of course, the thesis of a dissolution of the SFRY was somewhat daring. After all, the federation was only dissolving because Croatia and Slovenia had seceded in the first place. Hence, the argument of express constitutional self-determination of these two entities was deployed in addition. The Yugoslav episode also pointed to the attempts of international actors to ensure that no wide-ranging precedent would ensue that might encourage secession elsewhere. Hence, express constitutional self-determination was framed in a very restrictive way. In relation to federal-type entities, there would be two con11

EPC Statement on Yugoslavia, 27 August 1991.

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ditions. First, the constitution would have to assign a right of self-determination to constituent units in a clear and unambiguous way. Second, only the constituent federal republics themselves would be entitled to self-determination. The line was drawn in relation to Kosovo. That territory enjoyed a dual status according to the constitution of the Socialist Federal Republic of Yugoslavia. On the one hand, it had full federal representation, along with the six constituent republics of the SFRY and Vojvodina. Hence, it was represented equally in the rotating collective federal presidency, it sent directly elected representatives into the federal parliament, etc. Moreover, its substantive competences were similar to those of constituent republics proper, including even the right to maintain its own central bank. On the other hand, Kosovo was also a unit that was legally subordinated to Serbia – a constituent republic in its own right. Hence, in relation to the federation, Kosovo was a federal unit; however, in relation to Serbia, it was an autonomous province. Kosovo had been subjected to the unilateral abolition of its federal status from 1987 onwards, submerging it within Serbia which launched a campaign of considerable repression in relation to it. Nevertheless, Kosovo claimed that its original status was distinguishable from that of constituents in name only. Hence, if they could leave, so should Kosovo. Kosovo’s declaration of independence, and its initially peaceful campaign for international acknowledgement, was internationally ignored. Once again, it proved that only violence appeared to be a tool for forcing international attention to be directed towards this situation. In the end, NATO felt constrained to mount a massive armed intervention on the European continent in order to address the Kosovo crisis when it finally spun out of control in 1999. However, the use of military force was justified exclusively on humanitarian grounds and NATO expressly committed itself to the territorial unity of the then rump Yugoslavia. Upon conclusion of hostilities, the United Nations gave similar assurances when launching an international governance mission for the territory, as is evidenced in Security Council Resolution 1244 (1999). Hence, it appears that not all federal units within a federation providing for express self-determination status are entitled to self-determination. In addition, contrary to the initial, rather loose formulations of the Badinter Commission, not every federal-type state structure automatically implies a right of secession for federal units. This was confirmed in relation to Chechnya. One may distinguish between federal states where it is assumed that sovereignty continues to be exclusively concentrated in the centre, while the exercize of authority is merely devolved to the federal units. This is the route Russia chose to go when adopting its new federal constitution after the dissolution of the USSR. According to the 1993 Constitution of the Russian Federation, Chechnya had indeed been promoted to the status of a Federal Republic in that newly independent state. Nevertheless, this status was not one derived from the original sovereignty of the individual federal entities. Instead, it was one derived from a limited grant of central authority, which left sovereignty vested in the overall Federation. The Constitution provided:

2  Why the Legal Rules on Self-determination Do Not Resolve: Self-determination Disputes We, the multi-ethnic people of the Russian Federation, united by our common destiny of our land, seeking to advance human rights and freedoms and promote civil peace and accord, preserving a historically established state unity, guided by universally recognized principles of equality and self-determination of peoples, ... renewing the sovereign statehood of Russia, ... Article 3.1. The multi-ethnic people of the Russian Federation shall be the bearer of its sovereignty and the sole source of authority in the Russian Federation. Article 4.1. The sovereignty of the Russian Federation shall extend to its entire territory. Article 66.5. The status of a member of the Russian Federation may be altered by the mutual consent of the Russian Federation and the members of the Russian Federation in accordance with a federal constitutional law.

In this case, it is the “multi-ethnic people of the Russian Federation” that are the “bearer of … sovereignty” as a collective entity. Federal entities such as Chechnya are not assigned original sovereignty, which resides only in the centre. Hence, in stark contrast to the response of the EU to the Yugoslav crisis, the EU confirmed the territorial integrity of the Russian Federation, instead of the claimed rights of Chechnya, for example, in the following Declaration of the EU presidency on behalf of the Union of 18 January 1995: The European Union would again urge strongly that there should be an immediate cessation of hostilities in order to facilitate the bringing of humanitarian aid to the population and allow negotiations to begin without delay. The European Union takes note in this connection of the proposal made by the Prime Minister of the Russian Federation. It calls for a peaceful settlement to the conflict which respects the territorial integrity of the Russian Federation.

When Russia forcibly reincorporated Chechnya some years later, the international community condemned the excessive brutality of the venture and its human rights abuses. But there was little or no support for the suggestion that Chechnya had a claim to independence, notwithstanding the ceasefire agreement of 1996, to which reference will be made below. However limited the construction of the doctrine of express constitutional self-determination may be, it has been regarded with considerable skepticism by some governments. The Yugoslav precedents, in particular, have had some impact on the attempts to negotiate settlements in a number of other secessionist conflicts. The option of a federal-type solution has proven unacceptable to a number of central governments. They presume that the granting of federal status to an entity in exchange for a cessation of the conflict will inevitably be the first step to an invocation of constitutional self-determination and to eventual independence. To overcome this inhibition to finding a solution, some federal or even confederal settlements have been counter-balanced with ‘eternity’ clauses. Such clauses confirm that any right to self-determination that may have previously been held by

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the secessionist unity has been expended in the agreement on a settlement. The federal union that has been achieved is there rendered ‘indissoluble’.12 B

Effective Dissolution

As we have seen, some constitutions will confirm that the overall state is composed of former sovereign entities that retain at least the seeds of original sovereignty. They may even confirm a right to self-determination, and sometimes refer expressly to secession, appertaining to sub-state units. This was the case in the USSR and the SFRY. Nevertheless, the declarations concerning independence of the Baltic Republics, and the secessions of Slovenia and Latvia, were opposed by the centre. In both cases, it was convenient to the international agencies addressing this issue to refer to the doctrine of effective dissolution, in addition to considering express constitutional self-determination. The concept of dissolution assumes that federal units can obtain statehood if the federation disappears. It is not clear whether a dissolution of a federation will only result in automatic statehood for constituent units if the former federal constitution confirms that these are the holders of original sovereignty, or if this might apply to any federation. Given the express self-determination status in both cases of effective dissolution, this issue remains untested. In relation to the USSR, the effective dissolution was followed by a regularization of the situation through the Alma Ata Declaration. This document clarified that the USSR had ceased to exist, confirmed statehood for all former Union Republics, and it nominated the Russian Federation as the universal successor to that state.13 In relation to the SFRY, the dissolution remained opposed from the centre for a considerable period of time. The dissolution thesis was initially offered by the Badinter Commission, which had found that the SFRY was in a ‘process of dissolution’ during the autumn of 1991. That process had been completed at the end of the year, according to the Badinter Commision, which then recommended recognition of statehood for some constituent republics. The concept assumed that constituent units would gain full sovereignty if the collective institutions of the federation were no longer functioning or representative of all federal units. Of course, even according to the concept of effective dissolution, a sharp dividing line was drawn. The entitlement was restricted to fully federal subjects only. Hence, the claim of Kosovo to statehood was initially rejected. That entity had indeed argued that it previously enjoyed a clear federal status. With the disappearance of the federation, it too should be allowed to gain direct international legal personality. Chechnya made a similar argument. The USSR being dissolved, nothing would bar it from achieving statehood. However, Chechnya had not been one of the full Union Republics. Instead, the constitution recognized a federal 12 13

See, for instance, the Annan-Plan on the Comprehensive Settlement of the Cyprus Problem of 31 March 2004. In the latter case, the new states regularized their new status, and succession issues, through the Alma Ata Declaration of 21 December 2001, 31 ILM (1992) 177.

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status for it, but within Russia. Hence, the entity that could emerge and form a sovereign state in consequence was Russia, and not, in turn, one of its constituent units. Chechnya’s claim that its legal identity was unconnected with that of the new Russian Federation was therefore rejected. Instead, Chechnya was considered part and parcel of the new Russian federal system and was born into that constitutional structure, even if it violently resisted such a result at that time. C

Implied Self-determination Status

It is also possible to envisage an implied constitutional self-determination status. This would be the case where a distinct ‘nation’ or ‘people’ inhabit a clearly constitutionally defined territory. Where the central government consents to the holding of a referendum on the issue of secession, or where such provision exists according to the constitution in the absence of an express reference to self-determination, there is an expectation that such a referendum would need to be respected by the central authorities. An example is furnished with reference to Scotland. There does not even exist a written UK constitution. Nevertheless, referenda on independence might be possible with the agreement and cooperation of the central authorities. Should the result be in favour of independence, it is likely that that outcome would have attracted a significant element of international legitimacy. This view was very strongly confirmed by the Canadian Supreme Court in a reference concerning the possible secession of Quebec. Despite the fact that there is no express constitutional self-determination status for Quebec in the Canadian constitution, the Court found that: “A clear majority vote in Quebec on a clear question in favor of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.” However, the Court also confirmed that independence is not an automatic result. Instead, both sides would have to engage in good faith negotiations about the implementation of the decision to secede. D

Self-determination Status Generated through Central Government Conduct?

More recently, it has been asserted that a constitutional self-determination status may also be generated through adverse conduct by the central authorities. There are two variants of this argument. One is based in part on the rulings of the Badinter Commission. The Commission appeared to have suggested that independence should be possible for federal-type entities that are being denied effective representation in the legal and political structure of the federation. If negotiations to address this situation have been exhaustively attempted, and if these have been frustrated by the central government, it is proposed that the entity in question should be entitled to secede. However, it has to be admitted that this theory is as yet untested. In the closest case that comes to mind – Kosovo – the organized international community was generally reluctant to disrupt the continued territorial unity of the overall state.

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A second variant of this thesis would address instances where an entity has suffered actual genocide or ethnic cleansing, or a deliberate campaign to destroy a population by denying to it that which is necessary for its survival (such as emergency food aid) on the part of the central authorities. In such instances, some scholars argue that the central government should no longer be entitled to invoke the doctrine of territorial unity in relation to that territory. Again, actual practice does not yet offer any evidence of the acceptance of this view. While armed humanitarian action has been launched in response to such situations, this has generally been coupled with a strong confirmation of the territorial integrity of the state against which the intervention was directed. Iraq furnishes an example, where independence for the long-suffering Kurdish North has not been contemplated. Overall, therefore, constitutional self-determination has developed as a conservative doctrine. It does not purport to broaden the scope of the right to selfdetermination in international law. Nevertheless, states will be increasingly mindful of the constitutional situation in their response to self-determination claims. Given the need for an express establishment of constitutional self-determination, however, this situation will remain rare. Most instances are likely to concern what may be best termed unprivileged entities seeking to establish statehood not on the basis of a legal entitlement, but on the basis of effectiveness. III Effective Entities What happens where an entity cannot lay claim to any self-determination status, be it colonial or constitutional, but it nevertheless manages to exhibit the facts that fulfill the criteria of statehood (territory, population, effective government)? Most cases of secession or dissolution have occurred with the consent of the relevant central authorities (United Arab Republic, Mali Federation, MalaysiaSingapore, Yemen), or in the colonial context. There are hardly any examples of unilateral opposed secessions that were effective in the long term. As was noted above, the case of Bangladesh appears to be truly exceptional, given the special role played by India in that instance. In that case, state practice did initially mainly reject the result, as is evidenced in the records of the UN General Assembly, but this position was not maintained over time. It might be argued that Somaliland constitutes an effective entity. After some fifteen years of effective independence, it is tempting to argue that this entity should now at least enjoy pre-state rights. That it to say, it should be protected through the doctrine of territorial integrity from forcible attempts at re-incorporation. However, that case is as yet unsettled and its status remains precarious until it is confirmed through an internationalized agreement. The hesitancy with which it has been addressed by the international community confirms the caution that is still being exercised in favour of the maintenance of the doctrine of territorial unity. Similarly, the outcome of the Kosovo issue is also still open, although there are signs that the international community might be willing to ex-

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ercise a greater degree of flexibility than may have been initially envisaged, given the realities on the ground. It is possible to analyze the situation of effective entities in two ways. One would simply point to the objective criteria of statehood. If an entity manages to exhibit a defined population and territory that is subjected to an effective government, and if the entity also has made manifest the will to be a state, then it is a state. Recognition is generally only seen as declaratory; that is to say, it reflects a status that already exists, rather than creating it. However, with respect to effective entities, declaratory recognition by other states is particularly important. For, until an entity has attracted such recognition, it is not easily possible to confirm whether it has obtained sufficient effectiveness to merit statehood. Prolonged effectiveness, even in the absence of recognition, might also yield statehood according to a second view. If a population makes manifest its desire to act together as an organized political community independent of others on a defined territory, then this manifestation of popular will must ultimately be reflected in some form of legal status. For instance, most governments have recognized the People’s Republic of China’s sovereignty also in relation to the territory effectively controlled by the Republic of China. The PRC claims the right to extend its authority also to Taiwan, by use of force if necessary. However, were it to do so without an invitation from Taiwan, for instance by way of an armed invasion, one might argue this would amount to a violation of the rights of the population. These rights would be derived from a new variant of the doctrine of selfdetermination that is reflective of a separate legal identity that, in this instance, has developed over a period of half a century. However, it has to be admitted that this theory is as yet untested. IV Escaping from the Self-determination Trap through Internationalized Settlements Recent practice has sought to address the self-determination deadlock in other innovative ways. The termination of the Cold War not only resulted in the fighting of new wars of secession and purported liberation. A number of others were concluded, either because the parties had fought themselves to a stage of mutually hurting stalemate, or due to external political or even armed intervention. Several new techniques have been deployed in this context. In Europe itself, there has been an attempt to defend at least the principle of territorial integrity of the successor states of the dissolution of the USSR and the former Yugoslavia. This technique has attempted to trade often wide-ranging self-government of secessionist units, coupled with power-sharing mechanisms, for the continued existence of the threatened state. At Dayton, therefore, very extensive powers of self-government were granted to the constituent entities in order to retain the overall state of Bosnia and Herzegovina. Attempts are being made at present by international agencies to advance settlements in Moldova (Trandniestria) and Georgia (Abkhazia, or more likely Southern Ossetia) along similar lines. A less pronounced, modest autonomy settlement appeared sufficient in the attempts to

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terminate the conflict in Macedonia through the Ohrid agreements of 2001. The attempt to draw Kosovo back into the ambit of Serbia and Montenegro through the passage of time, on the other hand, has failed and international actors are now preparing to negotiate a solution to the status issue that would be more accommodating to the wishes of the ethnic Albanian population. Hence, Kosovo may well become one of the new types of settlements that question the previously unshakable view that the territorial integrity of the central state must be restored under all circumstances that do not qualify under the doctrines of classical colonial or constitutional self-determination. Indeed, even the earlier attempt to address the Kosovo conflict through the Rambouillet process also resulted in a formula that is not free of ambiguity. The text, to which Resolution 1244 (1999) of the UN Security Council makes reference, foresees the establishment of an internationalized mechanism that will set up a process for the settlement of the status issue. That process was intended to take account of, inter alia, the ‘will of the people’. In fact, a more flexible approach is evidenced in several recent settlements around the world. It was already noted that a number of governments are willing, often after prolonged conflict, to give in to demands for external self-determination. As was already mentioned, this situation obtained in relation to Eritrea, after the change in government in Ethiopia (and before a formal new constitution was adopted, providing for the right to self-determination to all nations and nationalities in Ethiopia). A formal agreement had been struck between rebel forces prior to the overthrow of the Mengistu regime, which granted to Eritrea self-determination status and the right to hold a referendum on independence after the expiry of an interim period. After that referendum confirmed the overwhelming wish of the population to secede, the central authorities implemented this decision. In terms of a new generation of self-determination settlements, the experience of Chechnya, on the other hand, was less encouraging. In August 1996, Chechnya concluded an agreement with the Russian Federation, restated in 1997, which expressly recognizes Chechnya’s status as a self-determination entity and foresaw a resolution of the issue according to that principle, and according to international law, by 31 December 2001. However, after alleged Chechen terrorist attacks in Moscow, the Russian Federation unilaterally annulled that agreement and forcibly re-incorporated Chechnya. This example highlights the desirability of seeking to internationalize any agreement granting self-determination status at the point of the termination of a self-determination conflict. Of course, even if Chechnya had taken greater care to entrench the settlement at the international level, this might not have dissuaded Moscow from a forcible incorporation. Still, it would have made it more difficult for international actors to remain silent. Despite this negative experience, there are now a significant number of instruments, generally arrived at with international involvement, that address the self-determination status of an area of conflict in innovative ways. Through such internationalized settlements, an attempt is made to escape from the self-determination trap. One of the first examples was provided by the Northern Ireland

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agreement. The agreement confirms in Article 1 that that territory is a self-determination entity, whose status can only be changed on the basis of the wishes of the majority of its population: The two Governments … (i) recognize the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland.

At the same time, the Article also recognizes the legal identity of the island of Ireland, confirming that it is “for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South …” In this way, a formula was found that could potentially satisfy both sides. The majority population is reassured that no territorial change can occur without its consent. The republican communities on both sides of the border, on the other hand, are assured of the fact the United Kingdom would accept a decision to change the status of the territory, if it is taken concurrently by both units. Hence, there is an alternative to an armed struggle: a change in status can be achieved through gradual demographic change coupled with political persuasion and reassurance of reluctant constituencies. The Bougainville Peace agreement of 30 August 2001 assigns wide-ranging autonomy to Bougainville. However, it also provides for a referendum to be held among Bougainvilleans on the future status of the territory, although, somewhat confusingly, this decision is subject to the review of the central government. The referendum is to be held no sooner than ten years and no later than fifteen years after the elections of an autonomous Bougainville government. Interestingly, the holding of the referendum is conditioned on a holding of the ceasefire and disarmament of the armed formations. There are also requirements that Bougainville must demonstrate its capacity to deliver good self-governance before a referendum can be held. This example offers another way of replacing the former monodimensional logic of the armed struggle. Here, the act of self-determination is conditioned on a genuine renunciation of violence, instead of being the product of violence and victory of the one side in an armed struggle. In addition, energy needs to be focused on achieving an actual capacity of self-government according to standards of rule of law and genuine democracy if the referendum is to come about. Another example of conditional self-determination was already noted above. This is provided by the Gagauz settlement within Moldova. According to the Law on the Special Status of Gagauzia of 23 December 1994, that autonomous entity “shall have the right of external self-determination” should Moldova cease being an independent state, for instance through a merger of its larger part (excluding Gagauzia and Transdniestria with Romania. Present negotiations seeking to establish a federal-type structure for Moldova, including Transdniestria and

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Gagauzia foresee a similar reserve for Gagauzia in a future comprehensive constitutional settlement. The Sudan settlement is of a different type again. In a radical departure from classical practice, the settlement clearly determines that the Southern unit will be entitled to the exercise of the right to self-determination, no conditions attached. The settlement is contained in the Machakos Protocols of 2002, and a series of further protocols adopted since then. However, in a new twist, the settlement requires that both sides cooperate to their utmost capacity over an interim period of six years to make the option of continued unity attractive in advance of the holding of a referendum in the South. Hence, interim governance is to be used to reduce the thirst for independence, however unlikely that may be in practice. In this face-saving way, the central government can consent to an agreement that, in the end, is likely to result in the independence of the South, without having to admit it to its constituents. It will be convenient to examine these attempts to address the underlying selfdetermination conflict in greater detail in the second part of this book. V

Conclusion

The right of self-determination was established in the late 1950s and 1960s, when the major instances of decolonization had in fact been completed. It therefore became acceptable to transform this doctrine into a right, given that it would only be enforceable in relation to a small number of governments that continued to cling to colonial rule at that time. The broadening of the application of the right to cases like South Africa also caused no problems, given the pariah status of the targets. The right to self-determination was conceived in a way that made it very potent in relation to the few instances of colonialism or analogous situations that remained. However, even where these cases were concerned, the right to self-determination was constructed in a way to yield results that would favour stability of the ensuing result over restorative justice in relation to colonialism. This is particularly evident in the doctrine of uti possidetis and in the view that self-determination in the sense discussed in this article is a one-time-only event. The existence of the right of self-determination therefore served as a convenient legitimizing myth for the existing state system. It made it possible to argue that the economic, social and political status of all states other than colonies must be reflective of the will of the people. The actual representativeness of those exercising a hold over the state structure was of course not questioned. Their status could be retrenched through the application of the doctrine of non-intervention and territorial integrity (preventing challenges from outside) and the doctrine of territorial unity (preventing challenges from inside). Others, struggling for what they perceived to be self-determination, were left outside of the system. Only a very limited corpus of humanitarian and human rights laws (never effectively enforced) would apply to them. In a sense, the state was given a carte blanche in dealing with groups seeking to assert their separate

2  Why the Legal Rules on Self-determination Do Not Resolve: Self-determination Disputes

identity. This principle was only disrupted when the rump Yugoslavia was denied the right to use force against Croatia and Slovenia, bringing about the discovery of the doctrine of constitutional self-determination. However, this entitlement, too, was construed in such narrow terms that it did not really cover a significant number of other conflicts that have been raging around the world for decades. Self-determination, therefore, can be seen as something of a curse. It appears to offer a promise of independence to populations. However, governments have ensured that this promise is a hollow one. Naturally, the system has been rigged to ensure that central governments will prevail in self-determination conflicts. Over sixty years after the establishment of the post-Second World War international system, self-determination conflicts have remained endemic. It has become clear that this system is not likely to generate the peace and stability it is meant to achieve. By privileging stability over ‘justice’ (at least as seen by those struggling for ‘liberation’), peace has been sacrificed. While the post-Cold War realignments have resulted in the outbreak of a number of additional catastrophic self-determination conflicts, there have also been a number of positive results. In a number of instances of mutually hurting stalemates, settlements are being achieved. These either circumvent the underlying self-determination issue by offering wide-ranging self-government (autonomy or even federal status) and power-sharing, or they do provide a possibility of separation, often after a prolonged interim period. The latter settlements tend to be obtained with strong international involvement, sought by the conflict parties or imposed on them. There is, therefore, emerging a sense that it is necessary to escape from the current self-determination trap, either by engineering new forms of co-governance within states, or by accepting that secession cannot in the end be ruled out if other options do not suffice.

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Chapter 3 The Logics of Power-sharing, Consociation and Pluralist Federations* Brendan O’Leary

Power-sharing, rightly, is a standard prescription for protracted national, ethnic and communal conflicts in deeply divided territories, especially ones focused on antagonistic self-determination claims. But no sensible advocate of powersharing assumes it is a universal panacea. Commending power-sharing has to be feasible as well as desirable. And power-sharing is not simple, obvious, or onedimensional. To avoid confusion, a distinction needs to be made between ‘the division of power’, ‘competition for power’, and ‘power-sharing’. In the liberal tradition, influenced by the arguments of Montesquieu and Madison and strongly present in American federalism, dividing political power is critical to preventing despotism. It commends separating executive, legislative and judicial institutions. Inhibiting a monopoly of power, especially in the executive, avoids dictatorship. The separation of civilian from military power, of nomination from appointment, of police powers to arrest and interrogate from the judicial power to prosecute, of local governments from central governments, are less recognized, but just as important parts of the same logic. To divide power is to prevent its abuse; to check power with power controls public officials. Some think that organizing the division of power is what really matters in deeply divided territories. A well-structured division of power, they say, inhibits national, ethnic or communal majorities – or minorities – from dominating others. Proponents of integration and assimilation make this claim. For them, representative government is power-sharing as well as power-division, because it obliges power-holders to work in anticipation of the checking and balancing capacities of the others. They say that they are supporters of sharing power, but not among communities. The competition for power, by contrast, focuses on how officials ‘win’ positions, be they executive, legislative, judicial or bureaucratic. In the liberal tradition, competition for executive and legislative power should occur through elections; liberals are more doubtful about elections to judicial and administra*

My thanks to John McGarry and Shane O’Neill.

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 47-58

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tive positions, for which they favour competitive meritocratic appointment. The minimal definition of representative government is a political system in which officials compete for authoritative positions in free and fair elections for citizens’ votes; in which elected officials hold office for limited terms, make laws, and give orders to unelected officials within constitutional norms that ensure accountability – both through the ballot box and recourse to the courts. The division of power, and competition for power, are intelligent principles. But, on their own, they are unlikely to calm deeply divided territories. Indeed, the combination of the division of power and the competition for power may be conducive toward the oppression of national, ethnic and religious communities. The competition for power expresses or creates majorities – and such majorities may be constructed from national, ethnic or communal cleavages. Majorities from the same community may win control over all major offices and governments – even if the powers of those offices and governments are divided and checked – and then propose discriminatory public policy and conceptions of merit. Integrationists and assimilationists too easily presume that a nation of individuals is in existence, or that one should be built. But most states are multi-ethnic and multi-confessional, and many are pluri-national. For this reason, integrationist and assimilationist politics, even when motivated by high-minded considerations, and however historically vindicated elsewhere, are recipes for conflict in deeply divided territories. To commend integration, and especially, assimilation where there are rival national self-determination claims is partisan or, alternatively, utopian. It is partisan when one community seeks to nationalize the state or region in its image on no better claim than might (numbers) makes right, it is utopian when (potentially or actually) antagonistic communities are instructed to fuse. Partisans and utopians succeeded many times in the last two centuries, too often after bloodbaths. That is why many contemporary liberals commend power-sharing as a supplementary approach to avoiding the worst in pluri-national, multi-ethnic and multi-religious states. Power-sharing commends the sharing of power as well as the division of power and the competition for power. It commends ‘coalition’ as a considered way of doing things, but not as a substitute for the division of power and competition for power. Advocates of power-sharing might personally favour integration or assimilation, in which all citizens have a primary loyalty to the nation-state, but have learned that they cannot guarantee that outcome, at least not without risking ‘internal’ war. They might prefer a strong programmatic government pushed by a single-minded party, but think the costs too high. They might think it best if their state had ‘normal’ institutions, but know that potential conflict between national, ethnic and religious communities warrants systematically sharing power as well as dividing it and subjecting it to competition. Proponents of power-sharing start from the recognition that political or cultural homogenization can lead to genocide, ethnic expulsion, imposed partition, and coercive assimilation. Their best argument is therefore very simple: power

Why we still call internal wars ‘civil’ is a testimony to irony.

3  The Logics of Power-sharing, Consociation and Pluralist Federations

holders and their challengers have often pursued extremist and exterminist strategies with grim results, sometimes to their mutual ruin, and power-sharing is preferable. If Rudolf Rummel’s (1994)calculations in Death by Government are even approximately correct the last century was the most lethal in human history. The argument for power-sharing is, however, more sophisticated than acknowledging that what cannot be won on the battlefield is best allocated through a common forum. Power-sharers follow Rousseau’s (1762) declared method in The Social Contract that commends taking “men as they are, and laws as they might be,” but, because they do not seek just one community they reject Rousseau’s particular proposals as disastrous: namely, inalienable, indivisible, and absolute sovereignty, the rejection of partial associations, and one vigourous homogenizing civic religion. Power-sharers seek social contracts between two or more peoples, or between two or more territorial governments. The first of these possibilities leads to what are called ‘consociational’ directions; the second toward territorial or federative power-sharing. These two possibilities can be combined in complex forms, where the complexity refers both to their institutional formats and their contexts. Here the focus is on the prerequisites for consociations and pluralist federations. I

Consociation

The concept of consociation has been traced to Johannes Althusius (1557-1638). He coined the formula consociatio consociationum for his vision of a cooperative commonwealth. The etymology is suggestive: ‘con’, from cum, Latin for ‘with’, and ‘societas’, society. A consociation therefore is a society of societies. The word’s roots imply separate societies that nevertheless cooperate in peaceful coexistence. A political consociation, it follows, exists in a state or region within which two or more cultural or ethnic or national communities peaceably coexist, with none being institutionally superior to the others, and in which the relevant communities’ leaders cooperate politically through both self-government and shared government. Equality between the consociational partners is supposed, and there are elements of both autonomy and of integration. No caste-like, colonial or racist relations can exist between the partner peoples. The consociational idea has been re-invented many times by philosophers and politicians. Reformers in the Habsburg Empire thought each nationality should be treated as a full cultural equal (as autonomous Kulturgemeinschaften), and that each citizen, on the basis of ‘the personality principle,’ should be able to declare to which nationality or linguistic community they belonged, and enjoy rights (including voting rights) wherever they lived. “Nations,” Karl Renner argued, should be constituted as “associations of persons instead of as areas of domination.” Arend Lijphart, the key contemporary consociational thinker, published The Politics of Accommodation: Pluralism and Democracy in the Netherlands in 1968, defining accommodation as the “settlement of divisive issues and conflict, where only a minimal consensus exists.” He thought that the secret of Dutch political stability – after a history of religious disputes – was a spirit of accommoda-

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tion amongst its political leaders, who cooperated to avoid violent conflict in a benign self-denying prophecy. They had developed four capacities: the ability to accommodate the divergent interests and demands of their respective collective communities; to transcend cleavages to create common interests; to commit to maintain and improve the system; and, lastly, a prudent appreciation of the perils of fragmentation. Later Lijphart, reasoned that democracies could be differentiated by the style of their political elites, which could be competitive or collaborative, and by their overall political culture, (fragmented or divided). These two dimensions generate four types of democracy: 1. “Centripetal democracy,” in which politicians compete within a homoge­ neous national culture (the received image of how liberal democracies do and should work in the Anglo-American world); 2. “Centrifugal democracy,” in which politicians compete within a fragmented multi-cultural environment, threatening system-breakdown (as in Fiji); 3. “Cartel democracy,” in which politicians collaborate within a homogeneous and depoliticized national culture; and 4. “Consociational democracy,” in which political elites cooperate within a heterogeneous political culture, and sustain a politics of accommodation. The last type serves as a general definition of democratic consociation, subject to two provisos: cooperation need not preclude political competition for power; and the forms of cooperation encompass the division as well as the sharing of power. Lijphart, unfortunately, declared that “consociational democracy means government by an élite cartel designed to turn a democracy with a fragmented culture into a stable democracy.” A cartel is anti-competitive, and the outlawing of competition (and opposition) cannot be part of any consociation that is democratic. There can, of course, be non-democratic consociations – when political leaders cooperate and conduct themselves according to consociational but not democratic practices. Power may be shared among elites with little or no reference to their communities. But the fact that there can be undemocratic consociations does not, however, mean that consociation is inherently undemocratic. There can be democratic and undemocratic presidents; likewise there can be democratic and undemocratic consociations. In Democracy in Plural Societies (1977,) Lijphart analyzed places that he thought had displayed some consociational characteristics: Belgium, Switzerland and Austria in Europe; Canada in the Americas; Israel (among Jews), and Lebanon in the Middle East; and Surinam and the Netherlands Antilles in the Dutch post-colonial world. He identified four consociational practices: cross-community executive power-sharing, proportionality, cultural self-government, and blocking powers, each of which requires further analysis. 

This wording amends Lijphart’s original – he has accepted it as friendly amendment.

3  The Logics of Power-sharing, Consociation and Pluralist Federations

A

Cross-community Executive Power-sharing

Executives can share power through ‘complete’, ‘concurrent’ or ‘minimal’ means. When the elected political leaders of all significant communities are represented in the executive (e.g., in a collective presidency) we have a complete consociational executive, or a grand coalition. But an ‘all-encompassing’ coalition is not essential for consociation; jointness in decision-making is more critical than comprehensive inclusion. In a concurrent consociation, each significant community has over half of its voters supporting parties in the government. An executive is minimally democratically consociational if one or more community merely gives its plurality assent to its leaders in the executive. (This distinction between complete, concurrent, and minimally consociational executives is equally fruitfully applied to legislative procedures, and constitutional amendment procedures). This clarification of complete, concurrent and minimally consociational power-sharing resolves a recurrent misunderstanding. Consociation does not require the absence of opposition (or competition), as some critics suggest. A ‘catch-all’ and ‘cross-community’ party that wins control of the executive may sometimes function consociationally: if it draws support from each major community of voters at plurality levels or above; if it is descriptively representative of the state or region it governs; if its internal party organizational characteristics are consociational (i.e., it practices internal executive power-sharing, autonomy, proportionality and blocking rights); and, lastly, if it follows consociational practices to manage crises that have national, ethnic, linguistic or religious roots. What type of executive is best for consociational power-sharing? Many follow Lijphart in preferring parliamentary government, in which premiers and cabinets comprise a collegial executive, believing that executive presidencies are majoritarian rather than consociational institutions. That certainly seems true of single-person executive presidencies directly elected by all the citizens under winner-takes-all single ballot contests: ‘one’ person cannot be a ‘mixed’ or ‘grand’ coalition. But it is a fallacy to assume that executive presidencies must be single person institutions, or necessarily directly elected by the citizens. There have been a significant number of presidential executive systems, especially collective and rotating presidencies, which are compatible with consociational principles: Bosnia and Hercegovina, Switzerland, the Italian region of Trentino-Alto Adige, and the European Union furnish examples. Nothing about presidencies per se prevents them from being designed or run in a consociational manner. Indeed a strong premiership may be problematic from the perspective of consociational decision-making. Where a premier heads a party with a legislative majority, he or she has the capacity to determine cabinet positions, and their relative salience. If the parliament is elected by proportional representation and multi-party government is more likely, then the likelihood that a premier has control over the composition of the cabinet is reduced. Consociational cabinets are usually ‘over-sized’, i.e., there are either more parties in the executive and/or more legislators supporting those parties than would be needed to control the legislature with a minimum winning coalition.

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B

Proportionality

In fully-fledged consociations, each community expects to be represented (either descriptively or through choice) in political bodies that govern its members, in at least rough accordance with its share of the citizenry. The representation may be either descriptive, appropriately mirroring shares of groups, or substantive, with persons expected to act for (or at least not against) the interests of their groups. Proportionality can be partially applied, just to formal political institutions, or it can be applied to all common institutions in a state and civil society (excluding those in which each community has self-governing autonomy – the appointment of Protestants to Catholic school boards would be against the spirit of consociation if education is supposed to be a domain of community self-government). Proportionality in political institutions is most appropriately underpinned by well-designed electoral systems. Whole families of such systems ensure that legislative bodies are composed so that parties are represented in proportion to their vote-shares. The most commonly used are closed and open party list systems, and hybrid or mixed systems (which generally combine winner-take-all systems at the district level with compensatory proportional allocations of top-up seats for parties). There cannot be any uncontroversial notion of proportionality, given that human beings do not come in fractions, that voters are very unlikely to divide their votes in neat easily convertible shares, and that each method for achieving proportionality “minimizes disproportionality according to the way it defines disproportionality” (Gallagher 1991: 49). All proportionality systems necessarily require mathematical rules to deal with the necessary ‘rounding off ’ or ‘sequencing’ of votes into seats. Each rule will have an explicit or tacit notion of what minimizing disproportionality involves. These rules or formulae, however, may be rank-ordered as to whether, when bias is inevitable, they favour larger parties over smaller ones. The merits of using PR systems to achieve proportional outcomes are obvious. Provided district magnitudes are not too small and relatively evenly sized, and provided that there has not been significant gerrymandering of electoral districts, PR methods will produce outcomes that are usually seen as technically fair and consistent, even though each may each have distinct quirks of their own. Using such systems on a common roll has the merit of enabling voters to decide whether they want to be represented by ethnic, trans-ethnic or non-ethnic parties, i.e., voters enjoy self-determination (rather then the pre-determination of corporate systems). It is a common mis-belief that consociations invariably stop free electoral competition by forcing voters to vote for ‘their’ national, ethnic, religious or tribal candidates. Not so. Where a political system deliberately obliges voters to vote only within their own community for their own leaders then, to that degree, the system may be called corporately consociational: separate electoral registers for each group do that. But in liberal consociational arrangements, all voters are on a common electoral register for the key governmental posts and are not required to vote for leaders from their own community of origin. It is therefore untrue that consociation necessarily privileges prior collective identities.

3  The Logics of Power-sharing, Consociation and Pluralist Federations

In countries which use non-proportional electoral systems, such as the winner-takes-all method in single member districts, it may still be possible to achieve proportional representation of communities, though it may be more difficult to guarantee, and will usually involve separate rolls or corporate representation. Reserved seats may be kept for certain groups – e.g., the Maoris of New Zealand were reserved seats when New Zealand used plurality rule, broadly in line with their share of the citizenry. The territorial concentration of communities may facilitate proportional representation of legislators by ethnic, racial, religious or linguistic origin. The Quebecois are proportionately represented in Canada’s parliament, although Canada uses a single member plurality electoral system. After 1943, seats in the Lebanese Chamber of Deputies were divided in the ratio of six Christians to five Muslims, or 54.5:46.5, which supposedly reflected the shares of the two communities in the 1932 census. In fact, the actual ratio of residents was 50:49 and of citizens 52:47, so parity or a ratio of 9:8 would have been more just. A ratio of 6:5 was also inflexible. In Lebanese politics before its internal war, it gradually became impossible to hold a fresh census. When Muslims, presumed to be expanding demographically, demanded a fresh census, Christians riposted by demanding that the Lebanese diaspora, presumed disproportionately Christian, be included in any count. This led to a stalemate and was one of the grievances that provoked the outbreak of the Lebanese civil war. Systems of reserved seats, or informal norms, are less likely to achieve proportionality smoothly than proportional electoral formulae. They may also involve pre-empting people’s identities and preferences, or adopting corporate (predetermined) rather than liberal (self-determined) principles of representation. One-shot fixed quotas create obvious difficulties. Much the least controversial quota allocation is to give a community a guaranteed share of positions in the executive or legislature that is broadly proportional to its demographic or electoral weight. By contrast, the over-representation of significant minorities automatically creates serious tensions, especially if the over-represented minority already has other protections or has historically been privileged. In one famous example, the Cypriot constitution of 1960 guaranteed 30% of the seats in the Cypriot parliament, and three of the ten seats in the Council of Ministers to Turkish Cypriots (Article 46), even though they comprised less than 20% of the population. This is one reason why this constitutional arrangement collapsed in 1963. Parity of representation amongst demographic unequals creates predictable objections amongst majority communities who, correctly, argue that proportionality is a different principle from parity. The new Belgian constitution requires that the federal cabinet be comprised of equal numbers of Flemish and French speakers, even though Flemish speakers are now a clear demographic and electoral 

This situation should be distinguished from one where affirmative action is required to rectify historical imbalances (usually the result of discrimination). Affirmative action policies may temporarily over-represent the under-represented in new cohorts of appointees, but are intended to achieve overall proportionality, not to deliver longrun over-representation!

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majority. Disproportional representation may well be conceived of as a method of minority protection, and may be demanded by minorities on various grounds, but such representation may be, and is legitimately, criticized as departing from the norm of proportionality (to each according to their numbers) and therefore from strict consociational logic. The conjunction of over-representation or parity amongst unequals with blocking rights (see below) creates obvious problems for majorities. Majorities may well accept blocking rights on matters of national, ethnic, cultural or religious significance for minorities, but they do not appreciate why they additionally have to accept under-representation or parity. The idea of proportionality also serves as a standard for the disbursement of public funds by a regional or sovereign consociation. Indeed, departures from proportionality may occasion dissatisfaction, unless one community is demonstrably poorer than another. The Constitution of Cyprus of 1960 guaranteed funding for the Turkish communal chamber at 1/4 of the sums to be provided for the Greek communal chamber, even though Turkish Cypriots comprised less than 1/5 of the population. Proportional allocation of public expenditure is relatively easy to achieve technically among groups that are sharply differentiated and relatively equal in endowments, though the politics of such allocation cannot be presumed to be unproblematic. Lastly, in consociations, proportionality is used as a standard for the allocation of public sector and sometimes private sector positions. In 1958, the Lebanese president introduced a principle of strict parity between Christian and Muslim appointees to the civil service. This calmed communal relations, though tensions remained because of Maronite ‘preserves’ in the security sector; later, Muslims, convinced of their increased numbers and educational uplift, started to demand the end of the quota and the proportionality principle. Examples of the use of proportionality rules or quotas to allocate administrative and judicial positions abound: Northern Ireland, Canada, and Belgium are all regions or countries with rigorous fair employment laws, including the use of affirmative action, and in some cases quotas, to achieve proportionality in public life. The principle of proportionality, in short, does not occasion any fundamental conceptual or operational difficulties. C

Cultural Self-government

Consociations share political power between communities on matters agreed to be of common concern. They do so in executives and legislatures, and, in principle, in judiciaries. There is also policy integration. In independent sovereign consociations, security institutions (the armed forces, intelligence organizations, and central policing services) and economic institutions (such as central banks) are usually integrated. But, equally, successful consociations delegate decision-making or grant autonomy (self-government) to communities on matters deemed appropriate. Tacitly, consociations work with a principle of ‘subsidiarity’: making it inappropriate to seek autonomy over what are matters of common concern, and

3  The Logics of Power-sharing, Consociation and Pluralist Federations

equally inappropriate to try to make a matter of common concern what has been decreed to be within a segment’s autonomous rights. The core idea of self-government from the perspective of minorities is “rule by the minority over itself in the area of the minority’s exclusive concern” (Lijphart 1977: 41). But the idea applies to all communities, including majorities that have autonomy. The idea of autonomy is easy to state in principle but its institutional and regulatory manifestations are complex and very varied. It is not the same as independence or sovereignty (though there can be co-sovereign federative units in a state that enjoy autonomy). The idea, however, requires minimally constitutionalized (or statutory or normative) arrangements, which regulate the level of discretion enjoyed by the authorities with autonomy. The key contrast in self-governnment, for our purposes, differentiates territorial and non-territorial autonomy. Territorial autonomy in federations will be discussed shortly. Non-territorial autonomy is distinctively consociational. Under non-territorial, also known as personal or group, autonomy, members of communities may exercise their community rights wherever they reside or work in a state or region. So, for example, they may publicly profess their religious beliefs or hold religious meetings in public no matter wherever they happen to be. Under personal autonomy, each person may opt to be recognized, or to receive services, in accordance with their group membership. So, for example, a person living in Brussels, Belgium, may opt to receive information about public services in either French or Flemish. The provision of separate broadcasting networks for different linguistic users throughout the entirety of a state, especially if each network is run by its own community’s political institutions or civil society, is a good example of non-territorial autonomy. Striking examples of ‘corporate legal autonomy’ are the separate civil law and personal status arrangements of the communities of Lebanon, and India’s separate personal laws for its Muslim and Christian minorities. No less consociational, but more liberal, are the fully funded and separate educational systems of the Netherlands, Belgium and Northern Ireland. The feasibility of personal or corporate principles of autonomy is not in doubt, but it is not without its difficulties. While ethnic, religious and linguistic associational life is prima facie unproblematic, modern states cannot dispense with common territorial jurisdiction, either within a state, or within a province. In some matters – the usual examples given are criminal or business law – a single code of behaviour and a single regime of sanctions will usually be rational. Nevertheless, distinctively consociational self-government is administratively cogent for territorially dispersed communities, and to communities that are extensively geographically mixed, as has been demonstrated at various junctures in the histories of Belgium, Cyprus, Lebanon, and Northern Ireland. D

Blocking Rights

The last element of consociational practice is partly implied by the existence of the other three. If there is cross-community executive power-sharing, then each community has at least weak and perhaps vigourous protection against majori-

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tarian executive discretion, and legislative agenda-setting. If there is proportional representation, then the capacity of each group to block dominance by others is enhanced – though not guaranteed. If there is consociational self-government, then minorities can stop other minorities or majorities from exercising executive or legislative dominance over them within the functions and spaces where autonomy applies. But formal blocking rights may be sought and institutionalized to ensure the guaranteed protection of minorities. Veto rights may exist within the constitution. Within the executive, collective presidents or dual premiers may share agenda-setting and agenda-blocking powers, and vice-presidents may be granted veto-rights. Within the legislature, the consent of all the affected communities may be required before constitutional change can take place. This can take the form of requiring unanimity within the executive, a concurrent majority within the legislature, or a weighted or super-majority that ensures concurrent or significant cross-community support – as in the ‘cross-community consent provisions’ of the 1998 agreement in Northern Ireland. Similar restrictions to standard majority rule in the legislature may apply to ordinary legislation if minorities have the right to petition that such matters be deemed of national, ethnic or communal significance. Courts may be charged with protecting group autonomy in bills of rights and charters that effectively place constitutional constraints on majorities that are equivalent to entrenched veto rights; ombudsmen may be given similar quasi-judicial roles. Veto-rights create obvious difficulties for majoritarian democratic theory: minority ‘tyrannies’ may block desirable change; deadlock, immobilism, or policy stagnation can flow from the deployment of vetoes by all groups; and minorities that over-use their veto rights may destabilize a consociational settlement. That said, these difficulties should not be exaggerated. In consociational systems, formal veto rights should mostly apply in the domains of the politics of identity and security, i.e., in ethnic, religious or national domains, and not to every policy sector. In effect, in these domains, groups require parity of power, rather than proportional power. II

Pluralist Federations

There is less controversy about the meaning(s) of territorial power-sharing. It involves a division of powers between territorial units, i.e., with spatially focused self-government in at least some specific functions (executive, legislative, judicial, or administrative), and shared rule between the territorially autonomous unit(s) of government and the confederal, federal, or central government. Two ways of organizing territorial power-sharing are well known: federations and confederations. Another is less well known: constitutionally entrenched autonomy, in which any change in the status and powers of the autonomous unit requires joint consent and parallel procedures by both the autonomous and the central (or federal) authorities – also known as a system of ‘federacy’ (Elazar 1977). Each of these distinct modes of organizing territorial government has multiple, and in principle infinite, variations (see Hannum 1996; Lapidoth 1997).

3  The Logics of Power-sharing, Consociation and Pluralist Federations

They vary, for example, over whether they grant rights of exit (secession), fusion (unification with other units), or opt-outs, or over their degree of symmetry in dividing powers. The Forum of Federations sensibly advocates federation as the best means of sharing power where there are deep national, ethnic and other cultural divisions. But two polar types of federation are not always properly considered in this debate. One type of federation is integrative. It builds on the liberal logics of dividing power and of organizing competition for power. It recognizes one nation. It is centralized: the federal government and judiciary have significant powers over citizens and over the member-units of the federation. Lastly, it facilitates a strong majoritarian federal government (in the executive or legislature or both). This kind of federation may work with an already homogenized people, or a federation with an overwhelmingly dominant people, and may occasion no complaints from immigrants willing to be integrated or assimilated. But it will not work with multiple national peoples, where there is no overwhelmingly dominant people, and where there are rival homeland (self-determination) claims. The USA and the federations in Latin America resemble integrated federations. They tend to recommend what they have to others. The other model of federation, better suited to the circumstances of deep divisions, is pluralist (O’Leary, McGarry and Salih 2005). It is consistent with the liberal logics of dividing power and organizing competition for power but also insists on the prudence and merits of power-sharing. It recognizes more than one nation or people. It is decentralized: the member-states have significant policymaking and legal powers and can resist encroachments by the federal branches of government. And, lastly, it tends to be consociational in the federal executive, legislature and judiciary: presidencies and cabinets are broadly representative; the decision-making and representation rules in the house of representatives and the house of the member-states are consensual; the federal judiciary is representative of the member-states and cautious about interfering in the self-government of the member-states. Belgium and Switzerland and Canada (in practice if not in constitutional texts) resemble the pluralist model. They tend to recommend what they have to others. Some critics of pluralist federation recognize its appeal and the appeal of consociational decision-making. But, regretfully or otherwise, they claim that pluralist federations and consociations are precarious, recipes for the break-up of states, and certainly insufficient to hold them together. The recognition of nationality or ethnicity is but the prelude to secession or discriminatory conflict. Decentralization facilitates local abuse of power. Consensual or consociational decision-making is a recipe for gridlock. Pluralist federations have indeed often broken down (and consociations have had a limited track-record of success). But it is not clear that the critics have better alternatives, other than letting one group win. And it is unclear that they have understood what factors lead to the breakdown or success of pluralist federations. We have sought to explain what makes a pluralist federation work by seeing what makes one fail (McGarry and O’Leary 2003; O’Leary 2001; O’Leary,

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McGarry and Salih 2005). Careful analysis should not lead people to reject pluralist federations. Pluralist federations are more likely to break down if they are put together coercively (e.g., the USSR and Yugoslavia). They need to be built as ‘voluntary unions’, or rebuilt as voluntary pacts if they were put together coercively. It is usually centralizers who threaten the federation’s founding pact, and who endanger stability – secession is less common as a first move than as a reaction to maltreatment. Pluralist federations that are undemocratic are vulnerable to breakdown at the moment of democratization, but if established as democracies and maintained as democracies are more likely to hold together. The maltreatment of minorities, especially compact minorities on the geographical perimeter of the federation, is an incitement to break-up. Conversely, equal treatment and consociational treatment give nationally compact and dispersed minorities reasons to stay. Pluralist federations will break down if severe distributive conflicts arise over natural and fiscal resources, but may survive if they manage those conflicts equitably (proportionally). A generous dominant people can live with the concessions made to national minorities and treat them as equal partners, knowing that there is both prudence and self-interest in such conduct. A dominant people that coerces others, maltreats them, or exploits them, will reap what it sows. Naturally, the preconditions of a successful pluralist federation are not all domestic. Pluralist federations will do better if they do not have interventionist neighbours, or if they lack irredentist neighbours. Conclusion A last word on international norms and interventions is needed. There are international proscriptions against genocide and expulsion, and norms of some significance that reward states that are democratic – and make discriminatory control regimes potential pariahs. There are additional proscriptions against coercive assimilation, and strong biases against secession and partitions. The conjunction of these norms leave international organizations and great powers, when they intervene in national, ethnic, and communal conflicts, confined to promoting one of three repertoires of democratic design: (i) federations (and variations on territorial power-sharing); (ii) consociation; or (iii) integration. In some places, to prescribe integration, in say Bosnia and Herzegovina, Macedonia, Northern Ireland, Cyprus, or Iraq, is simply to prescribe the partisan victory of one community over another. In short, the exclusion of certain options that were once available to interventionist powers has created additional leverage in favour of pluralist federations and consociational arrangements. Since these logics of power-sharing may reduce the tides of national, ethnic, and communal blood that flow in our times, exploring their productive possibilities has a pressing political and intellectual urgency.

Part Two Case Studies

Chapter 4 Complex Power-sharing in and over Northern Ireland: A Self-determination Agreement, a Treaty, a Consociation, a Federacy, Matching Confederal Institutions, Intergovernmentalism, and a Peace Process* Brendan O’Leary

I

The Sources of Conflict

A

The Territory, Its Claimants, Its Peoples

Conflict in and over Northern Ireland had deep external and internal roots. It has been matched by a ‘meta-conflict’, i.e., intellectual controversy over what the conflict is fundamentally about (McGarry and O’Leary 1995a: 1). But the primary historic antagonism is simply stated: Ulster unionists want Northern Ireland to remain part of the United Kingdom; Irish nationalists want it to become part of the sovereign Irish nation-state. The social cleavage underlying this political antagonism is also clear: within Northern Ireland, Ulster unionists and Irish nationalists are overwhelmingly the political expressions of largely endogamous descent-groups, i.e., ethnic communities. Each of these respective communities has been partially mobilized into the British and Irish nations; each seeks the succour of its respective co-nationals and their sovereign states; each is partially distanced from its co-nationals by historic, political and geographic separations. The historical roots of the conflict are equally evident: “Northern Ireland was and is a legacy of settler colonialism” (O’Leary and McGarry 1996: 101). The precise political unit is of recent vintage, created in 1920 by the United Kingdom parliament, through the Government of Ireland Act, unsupported by any MPs from Ireland. Irish nationalists regarded its formation, and its borders, as *

The author thanks all the participants in the Resolving Self-determination Disputes Through Complex Power-sharing project, but is especially grateful to Angela Hegarty, John McGarry and Paul Mitchell. The Carnegie Corporation of New York’s funding, the United States Institute of Peace, the London School of Economics, the University of Pennsylvania and the Rockefeller Foundation’s Bellagio fellowship assisted in research and composition. This chapter draws upon but extensively modifies previous analyses (O’Leary and McGarry 1993; O’Leary 1999d; 1999e; 2001b; 2001c; 2001d; 2001g; 2002a; 2002b).

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 61-124

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a coercive, fresh and unnatural cut across the homeland of the Irish people and the historic province of Ulster. Ulster unionists, by comparison, regarded its creation as a ‘second-best’ option. They would have preferred all of Ireland, or at least all of historic Ulster, to have remained in the UK. Northern Ireland was forged from six of the nine counties of historic Ulster, which in the seventeenth century had been the site of extensive colonial plantations by Scots and English settlers encouraged by King James I and his successors. These plantations were more successful than others in the rest of the island (see map below). The settlers and their descendants were originally extensively differentiated from the native Irish by their language, culture and religion. Of these markers of difference, religion has been the most durable. ULSTER

Crown sponsored plantations of James I Private plantations of Chichester, Hamilton and Montgomery

Lo

nd

Donegal

Antrim

on

de

rry

Tyrone Fe

rm

an

ag

h

Armagh D o w n

Cavan

CONNAUGHT

LEINSTER

MUNSTER

0

miles 0

Source: O’Leary and McGarry 1996: Ch 2, 58.

km

50 50

4  Complex Power-sharing in and over Northern Ireland

Northern Ireland was the by-product of both British and Irish nation-building failures. In the sixteenth and seventeenth centuries, Ireland was re-conquered for the English Crown. The Catholic religion of its natives and the ‘old English’ was repressed, and outlawed. Massacres and mass starvation through the deliberate destruction of crops accompanied the mid-seventeenth century Cromwellian reconquest. In two large-scale ‘settlements’, one under the aegis of Cromwell, the other later in the century under William of Orange, the land of Irish Catholics, native and old English, was almost entirely confiscated on behalf of the ‘New English’, led by what became an Ascendancy caste of Protestant aristocrats who controlled the Irish parliament. The Gaelic civilization of the native Irish was crushed, its aristocrats were dispossessed, and many departed into exile (Carty 1996). In the eighteenth century, the position of Irish natives and Catholics gradually improved, though the century ended with significant peasant forces participating in a Jacobin-inspired insurrection against British rule in 1798, which prompted William Pitt to create the Union of Great Britain and Ireland in 1801. British nation-building in the nineteenth century failed to integrate Ireland as a co-equal unit of the Union. Its form of government combined integration and colonial administration. The Westminster parliament failed to integrate the Irish, especially the Catholic Irish, as co-nationals of the British: the formal emancipation of Catholics did not take place until 1829. British nation-building failed in significant measure because Irish Protestants, predominantly of settler origin, resisted the reversal of the seventeenth century conquests implicit in treating Irish Catholics as equals (Lustick 1993; 1985). In the ethnic memory of Irish nationalists, British management of the catastrophic Great Famine of the 1840s was proof of the indelibly inferior moral status of the Irish in English eyes. The diaspora produced by the Famine scattered, and would include a new and large Irish American stock (later an important resource for the nationalists of Ireland). Subsequent land reforms initiated attempts to kill Irish nationalism with belated kindness. But this history of conquest and catastrophe explains why Irish nationalist movements mobilized with considerable mass popularity, especially from the late eighteenth century onwards. They failed, however, to mobilize uniformly across the peoples of Ireland. Irish Protestants, especially Ulster Protestants, were not universally regarded as full co-nationals of the re-emergent Irish nation. Irish nationalism encompassed movements to reverse the conquest of the land, to revive the ancient Gaelic culture, and to win sovereignty for the island. Though it numbered some Protestants amongst its political and cultural elites, its mass base was overwhelmingly Catholic (Hutchinson 1987). Historic Ulster had the greatest spread and concentration of Protestants and descendants of settlers in Ireland. They identified with the Crown and the British state, given the Protestant nature of the kingdom and union with Great Britain (Colley 1992). In Ulster, Protestants were found in all social classes, whereas in the rest of the island, generally, they were disproportionately in the higher strata. Not surprisingly, Ulster’s Protestants were most resistant to the demands of Irish nationalists for the repeal of the Act of Union, for home rule, or for a sovereign independent Ireland. When the democratization of the UK began in earnest in

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the 1880s, Ulster unionists, in coalition with the Conservatives and their aristocratic supporters in the House of Lords and the military, successfully resisted proposed legislation to grant home rule or autonomy to Ireland, bringing the UK to the brink of a regime breakdown on the eve of the First World War. The partition of Ireland in 1920, creating ‘Northern’ Ireland, with a population of one and a half million, and ‘Southern’ Ireland, with a population of less than three million, was justified by British policy-makers as a way of dealing with the rival identities, interests and demands of Irish nationalists and Ulster unionists. Whatever the merits of these arguments, there was little normative or cartographic merit to the chosen partition. Irish nationalists noted a double standard: “to avoid imposing on Ireland a system rejected by a quarter of its population” British governments “created and defended an artificial Northern Ireland rejected by one third of its population” (Laffan 1983: 123). The Government of Ireland Act was the result of the decisions of the UK cabinet, which wanted to keep Ireland within the empire and to satisfy Conservative and unionist demands on Ulster. The Act was not an act of self-determination on the part of any of the peoples of Ireland (Gwynn 1950; Laffan 1983; Carty 1996; McGarry and O’Leary 1995a: Ch 1; O’Leary and McGarry 1996: Ch 2; Mansergh 1997). The UK government acted from a mixture of imperialist and paternalist motivations, claiming to be responding to majority and minority sections of Irish opinion. But, in the preceding five centuries of British rule, Ireland had been regarded as an entity, in earlier centuries with a parliament of its own, and since 1800 as one of the kingdoms joined in the United Kingdom of Great Britain and Ireland, with a separate administration and legal system. Even considering matters solely from a British constitutional perspective, the unit of self-determination should have been Ireland, since it was as such a unit that the Irish parliament had approved the Union (Mansergh 1997). Irish nationalists, especially militant republicans, rejected the Government of Ireland Act. It was, by contrast, accepted by Ulster Unionists as the best available means of protecting their connection to Great Britain. B

The Scale and Duration of Conflict

Irish nationalists, North and South, resisted Northern Ireland’s formation. They were, however, eventually forced to accept partition, albeit as a temporary fact. In 1921, a treaty, negotiated between Sinn Féin and the UK government, recognized the domestic independence of the territory of what the British had initially called ‘Southern Ireland’, as the Irish Free State (Pakenham 1935; Lyons 1973; Fair 1972; Laffan 1999; Lawlor 1980-1981). Its independence was circumscribed: the treaty obliged the Free State to remain in the British Empire, according to the model of dominion autonomy, and the British insisted on the recognition of their Crown, an oath, and on provisions requiring Ireland to provide naval bases “in time of war.” The newly established Northern Ireland parliament was given the right to opt-out of the Irish Free State, a right promptly exercised. The treaty was accompanied by the promise of a Boundary Commission, because the UK’s negotiators realized that the new border was scarcely politically or ethically defensible.

4  Complex Power-sharing in and over Northern Ireland

But, its terms of reference were ambiguous, and its composition (a nominee each from Northern Ireland, the Irish Free State, and the UK government) gave Belfast and London a controlling majority. The Treaty prompted a civil war within the new Irish Free State. Anti-Treatyites rejected the Crown and partition as denials of the Irish people’s right to national self-determination. Pro-Treatyites believed the settlement was the best available. They won the civil war. They hoped for a positive outcome from the Boundary Commission, but when its proposals became evident and were plainly tilted towards Ulster unionists, they pragmatically accepted the 1920 partition. Within the Irish Free State political competition focused on establishing full sovereignty and state-building. The anti-Treatyites, the losers of the Civil War, eventually mobilized behind the Fianna Fáil party, which in the 1930s became the dominant electoral and then governmental power in independent Ireland. Its political programme, including bilingualism and asserting Ireland’s freedom from Britain, meant that Irish nation-building was regarded by Ulster unionists as inimical to their interests and identity – even though independent Ireland treated its major cultural minorities, the Anglo-Irish and Irish Protestants, better than Ulster unionists treated its much larger minority. Fianna Fáil designed a new Irish Constitution, promulgated and popularly endorsed in 1937, which repudiated the 1920 Act and the 1921 Treaty, and asserted the right of the Irish state to govern all of the island, and defined the entire island as national territory. But it also committed the state to seeking Irish unification according to the principles of international law, i.e., through peaceful diplomacy (Bunreacht na hÉireann 1937: Articles 2, 3 and 29). Within Northern Ireland, running a miniature version of the Westminster model of parliamentary government, the Ulster Unionist Party (UUP) built a system of majoritarian control, using political, legal, economic, cultural, policing and discriminatory administrative mechanisms to organize the new majority and to disorganize the new minority (O’Leary and McGarry 1996: Ch 3, modifying Lustick 1979). The UUP governed without interruption from 1921 until 1972. The system was built because Ulster Unionists feared the irredentism of Irish nationalists, North and South, and that British governments might betray them. It was underwritten by the cultural legacy of settler colonialism, in which Irish nationalists and Catholics were regarded as (and treated as) inferiors. The impact of the system was palpable: Catholics emigrated in significantly disproportionate numbers. Having constituted approximately 35% of Northern Ireland’s population in 1921 they composed approximately 60% of its emigrants between 1921 and 1981 (O’Leary and McGarry 1996: 131). Emigration offset the higher Catholic birthrate and stabilized unionist dominance. The system proved durable until the late 1960s, successively defeating a series of efforts by the paramilitary organization, the Irish Republican Army (IRA), to conduct guerrilla warfare as a national liberation strategy, and successfully marginalizing constitutional Irish nationalist opposition. But, in the late 1960s, the system broke down under the political and moral pressure of a civil rights movement, modelled on that in the USA, and focused on achieving an end to discrimination.

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The re-organization of most Northern nationalists was manifest in the formation of the Social Democratic and Labour Party (SDLP), which recognized Northern Ireland, but sought equality, reconciliation and Irish unification – in that order. In the late 1960s the (then Labour) UK government intervened to promote reforms widely resisted within the dominant UUP, and in 1969 sent in the British Army to uphold security because the Royal Ulster Constabulary (RUC) had proved both highly partisan and incapable of maintaining order. In 1970 a Conservative UK government, more sympathetic to the UUP, authorized a crackdown, and in 1971 oversaw the re-introduction of internment without trial and other measures targeted against a new breakaway and militant organization, the Provisional IRA (PIRA). The latter argued that Northern Ireland could not be reformed, and embarked upon an extensive campaign of political violence with significant support amongst a minority of the minority. In 1972 the UK abolished the local Northern Ireland Parliament and ruled the region directly from London (Westminster and Whitehall). Subsequently it would combine direct rule both with intermittent attempts to organize a power-sharing and political and military efforts to repress republican violence. There was extensive political violence within Northern Ireland from the late 1960s until 1994. A three-sided conflict was waged between the forces authorized by the UK, namely, the British Army, including locally recruited regiments (overwhelmingly comprised of Ulster Protestants), and the police, the RUC; and opposing paramilitaries, republican and loyalist. The largest and most effective republican organization was PIRA, now known simply as the IRA. Its political party was Sinn Féin. The largest and most effective loyalists became the Ulster Volunteer Force (UVF), and the Ulster Defence Association (UDA). The latter, operating under various front organizations, remained legal until 1991. Their political parties became the Progressive Unionist Party (PUP) and the Ulster Democratic Party (UDP). The conflict’s epicentre was in Northern Ireland, but republicans spread it to Great Britain, especially London, and also targeted British military bases on the European continent, while loyalists made occasional incursions into Ireland. The death toll, over 3,600, was felt most deeply in Northern Ireland. Republicans were responsible for the largest number of deaths, nearly twice as many as loyalist organizations. Loyalist organizations were responsible for killing more than twice as many people as the state’s security forces. Though the state’s forces were restrained, especially by comparison with state agents in some other ethno-national conflicts, there were extensive abuses of power, and the law was not effectively applied to state-authorized killings (Ní Aoláin 2000). 

The first full-scale audit of the human and economic costs of conflict between 1969 and 1989 was sketched by the author with others (O’Leary and McGarry 1993: Ch 1; first sketched in O’Duffy and O’Leary 1990). Subsequent research has confirmed the relevant patterns, but with better confirmed and verified data (Sutton 1994; Fay, Morissey, and Smyth 1999; Fay, Morrisey, and Smyth 1997; Ní Aoláin 2000). McKittrick et al. provide the definitive treatment of deaths (McKittrick et al. 1999; 2001; reviewed by O’Leary 2000a).

4  Complex Power-sharing in and over Northern Ireland

The deaths-to-citizens ratio was very high given the region’s small population, parliamentary conditions, and the absence of inter-state war (O’Leary and McGarry 1996: Ch 1). The most extensive phase of violence ended in 1994 when the IRA called a ceasefire, later reciprocated by the major loyalist organizations. The IRA broke its ceasefire in 1996 after a Conservative government failed to fulfil its pledge to deliver speedy negotiations, but it was resumed when a new Labour government took power in 1997. Despite intermittent break-downs and acts suggesting poor discipline, the paramilitaries’ ceasefires are still formally in place at the time of writing, and facilitated the construction of a comprehensive negotiated inter-governmental and multi-party political settlement in 1998. C

Previous Attempts at Conflict Management

Three conflict-management regimes in and over Northern Ireland have existed since its construction – each of which has had multiple contradictions. The first, ‘divide and partial quit’, was embedded in the Government of Ireland Act and the 1921 Treaty and lasted until 1969–1972. The UK gave control to two new majorities – to Irish nationalists in independent Ireland and to Ulster Unionists in Northern Ireland – and divested itself of direct responsibility for most domestic governance in the island. It was happy to see cooperation between the two new political units – both the Act and the Treaty envisaged the possibility of the Council of Ireland linking the two units. And it would have been content with Irish unification within the Empire. The settlement had right-protections for both of the new minorities, but not as national minorities. Overall, it was biased in favour of Britain’s geo-political interests, fettered the sovereignty of independent Ireland, and enabled the Ulster unionists to abuse their local power. The systems of rights-protection worked better in independent Ireland, with its small minority, than in Northern Ireland, with its much larger minority. The settlement was, eventually, more successful in independent Ireland, because its minority was small, integrated, and eventually extensively assimilated, and because independent Ireland established its full constitutional and international sovereignty and personality in 1937, becoming a Republic in 1949. The settlement in Northern Ireland was much less successful because it facilitated majority dominance through its local version of the Westminster model of parliamentary government, because there was a much larger minority, and because that minority generally sought neither integration nor assimilation with the UK. The second system of conflict-management, ‘arbitration with intermittent efforts to promote power-sharing’, was in effect throughout most of the period between 1972 and 1985. The UK government, through its Northern Ireland Office, presented itself as a neutral authority above the rival sub-cultures of Protestants and Catholics. The intervention and presence of the British Army was justified in this manner. There would be, despite some occasional reconsiderations, no re

More nuanced and detailed accounts of British policy-making after 1969 are available (Cunningham 2000; Mitchell and Wilford 1999; O’Leary 1997a; 2002b).

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turn to simple majority dominance of the type exercised by the stormont Parliament – a vista unacceptable to Northern nationalists, the Irish government, and international opinion, especially Irish Americans. Northern Ireland would be reformed: discrimination against Catholics would be effectively remedied. Security policies, it was said, would be impartial, directed against both anti-state republican and pro-state loyalist paramilitaries, whose actions would, it was eventually decided, simply be criminalized. Arbitration was a partial success. Though direct rule denied self-government to Northern Ireland, the region was partly reformed. The agenda of the civil rights movement was implemented. Cultural Catholics began to vote and to stay in greater numbers. Funding of Catholic education gradually improved (McGrath 2000). Security policy was no longer run at the direct behest of UUP politicians. But, in two respects, arbitration was a failure. First, UK security policies – internment without trial followed by criminalization regimes, and the use of shoot-to-kill policies – were initially incompetent, subsequently counter-productive, and always involved human rights abuses (and sustained – and convincing – allegations of collusion between state agencies and loyalist paramilitaries). UK security policies helped build a significant core of support for the IRA and the political party that spoke for it, Sinn Féin, which started to grow significantly in the early 1980s after Mrs Thatcher’s government mismanaged its response to republican hunger-strikers. Second, efforts to promote power-sharing or consociational initiatives were persistently unsuccessful (McGarry 1990; O’Leary 1989). A brief experiment in voluntary power-sharing within Northern Ireland, linked to an all-island Council of Ireland, known as the Sunningdale agreement, collapsed in 1974 after a general strike organized by loyalist paramilitaries and the withdrawal of unionist support for the initiative (for details of its content and collapse, see Wolff 2000; 2001). A voluntary consociational settlement amongst moderates was inhibited by several factors (O’Leary 1989). Hardliners opposed such a settlement: republicans wanted Irish national self-determination and a withdrawal of the UK state; hardline unionists either wanted a return to local majority-rule or full-scale integration into the UK, i.e., no local power-sharing. Hardliners constrained moderates who feared losing electoral support within their respective ethno-national blocs (Mitchell 1991; 1995; 1999). Second, moderate nationalists wanted any settlement to be internationalized, i.e. to have a linkage to Ireland, and a role for the Irish government, a position that moderate unionists opposed. Moderate unionists preferred voluntary power-sharing devolution, exclusively within the UK, i.e., with no all-Ireland dimension; others preferred Northern Ireland’s full ‘integration into the UK’, though they differed on what this meant. Third, the preconditions of a voluntary consociational settlement were absent: namely, appropriately motivated political elites with sufficient predominance within their blocs to make a settlement, and with sufficient stability within their blocs to maintain such a settlement (O’Leary 1989). Underlying the stalemate was the unresolved national self-determination dispute.

4  Complex Power-sharing in and over Northern Ireland

The third type of conflict management, ‘inter-governmentalism and coercive consociation’, emerged in 1985 (O’Leary 1987). It established the institutional and policy environment that made the complex-power sharing agreement of 1998 possible. In the Anglo-Irish Agreement, the two sovereign states created an intergovernmental conference which gave the Irish government the right of regular consultation and deliberation over all public policy affecting Northern Ireland (McGarry and O’Leary 1990b Appendix A; Hadden and Boyle 1989). They did so for several reasons. They wanted to stop the growth in support for Sinn Féin, and to create appropriate incentives for moderate nationalists and unionists to share power. The Agreement made it easier for the SDLP to negotiate an internal agreement because an Irish dimension was in place. The Agreement was, however, coercively consociational toward unionists. They were told (Article 4) that if a power-sharing devolved government was established then in the devolved functions, there would be no role for the Intergovernmental Conference. Unionists responded with widespread hostility to the Agreement, but failed to bring down its key institution. They sought the termination and then the suspension of the Intergovernmental Conference and its Secretariat before they would consider entering negotiations on an agreed settlement. Eventually, such negotiations began in 1991-1992, though without immediate success. Nevertheless, the processes attached to the negotiations, and the substantive content of the future agreement, were foreshadowed in these discussions (O’Leary 1995b; 1995c; 1995a). II

The Making of the Belfast and the British-Irish Agreements

The two sovereign governments had gradually improved their cooperation, despite regular difficulties (especially during Margaret Thatcher’s long premiership (1979–1990). Their shared interests in stability and a political settlement provided incentives to consider a comprehensive settlement. But, until 1991–1992 inter‑governmental initiatives were premised upon building settlements with moderates and marginalizing hardliners. In the 1990s, this environment was changed, largely at the initiative of nationalists. Isolated by the Anglo-Irish Agreement, 

Professor Paul Bew claims to have refuted this argument through ‘earlier research’ that he published with others (Bew 2000: 40; citing Bew, Gibbon, and Patterson 1996: Ch 6, 213-217). The cited sections provide no obvious refutation. Bew thinks the 1985 Agreement had as its logical agenda joint authority, in which lip-service was paid to devolution (for which he cites one British official), whereas in fact the 1985 Agreement was the result of; (a) the failure of the Irish government to achieve joint authority; and (b) a joint determination of both British and Irish officials to force unionists to choose between power-sharing devolution (consociation) and increasing Irish governmental influence in the North (de facto joint authority). The officials I interviewed in 1986 (British and Irish), confirmed my interpretation, though of course they did not use the terminology of consociation. Bew and I appear to share a common understanding of Northern Ireland’s recent institutional trajectory, from a system of ‘control’ (which he calls ‘ethnic democracy’) to one of (attempted) consociation (Bew 2000: 48).

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Sinn Féin sought to build a pan-nationalist alliance, and put out feelers to the Irish government, the SDLP and the Catholic Church. Determined to encourage the politicization of republicans, and to have negotiations in which all nationalists could be present, the SDLP leader John Hume argued that Irish national selfdetermination could be exercised through two referendums, North and South, to endorse a comprehensive agreement that addressed all the relevant relationships within the North; between the North and the South; and between the East and the West, i.e., within Northern Ireland, across Ireland, and between Ireland and the UK. This agenda would become Strand One, Strand Two, and Strand Three, respectively, of the 1991–1992 negotiations, with separate chairs for each strand of negotiations, including an international chair for Strand Two, and an agreement that “nothing would be agreed until everything would be agreed.” Republicans and nationalists built support for peacemaking and a negotiated settlement amongst influential Irish Americans, including key figures in the Clinton administration (O’Clery 1997 (1996)). Secret negotiations, denied at the time, and misrepresented later, took place between the IRA and the UK government. Republicans sought to ensure that an IRA ceasefire would quickly lead to Sinn Féin’s inclusion in free-ranging negotiations. A joint prime ministerial statement, the Downing Street Declaration of December 1993, issued by Taoiseach Albert Reynolds and Prime Minister John Major, outlined the agreed principles to govern a negotiated settlement. They contained Hume’s agenda, enabled each party with a democratic mandate and a peaceful agenda to negotiate for its preferences, but assured unionists that agreement would require the support of a majority within Northern Ireland. In August 1994, after a delayed response, the IRA ceased all its ‘military operations’. Six weeks later, the major loyalist paramilitaries reciprocated, promising a ‘no first strike policy’. In February 1995, the two governments published two sets of documents. The first, based on Strand One of the failed 1991–1992 negotiations, set out an agenda for a devolved government in Northern Ireland, splitting the differences between the known preferences of the SDLP and the UUP. The second, written by the two governments, and covering Strands Two and Three of the previous failed negotiations, set out an agenda for the creation of a strong multi-functional North-South Ministerial Council across Ireland. They also indicated how the UK and Ireland might resolve their dispute over sovereignty in the region. The ideas in the documents were consociational and confederal in character and had an implicit model for the double protection of the relevant majorities and minorities (O’Leary 1995b; 1995a). They anticipated much of what would be agreed in 1998. In February 1996, the IRA ended its ceasefire. It did so, it said, in response to the UK government’s refusal to convene promised comprehensive all-party negotiations. The UK government, hamstrung by a diminishing parliamentary majority, had insisted that decommissioning of weapons by paramilitaries precede the entry of their parties into negotiations – an insistence known as ‘Washington 3’, after its elaboration among other preconditions by the then Secretary of State Sir Patrick Mayhew at a conference in the USA. The insistence on prior decommissioning was motivated by a desire to get unionists to engage in negotiations, and

4  Complex Power-sharing in and over Northern Ireland

to appease Tory backbenchers, hostile to Irish republicanism. To resolve the impasse, the two governments requested US Senator George Mitchell to head an international commission. It reported in January 1996 (Mitchell, de Chastelain, and Holkeri 1996). It recommended that decommissioning take place during and parallel to negotiations, but that parties be required to sign up to exclusively peaceful and democratic principles in and outside negotiations. In response to the Mitchell Commission, Prime Minister Major proposed either prior decommissioning, as before, or calling an election for a Peace Forum to mandate negotiators. This was the immediate context in which the IRA broke its ceasefire. Major’s policy seemed to play fast and loose with Mitchell’s recommendations, and to legitimate a Northern Assembly before negotiations. Nevertheless, Sinn Féin participated in the elections to the Forum. Elections to the Forum took place, and negotiations about negotiations began, without Sinn Féin, but with the Mitchell Commissioners chairing them. Progress was tortuous. One innovation emerged: a unionist proposal for a Council of the Isles to which the North-South Ministerial Council would be subordinate. The glacially paced negotiations were interrupted by the UK general election of 1997, which brought a new Labour government to power with an overwhelming parliamentary majority. The Blair government sought and obtained a renewal of the IRA’s ceasefire, and parked the issue of decommissioning into a separate forum for negotiations. As Sinn Féin entered the negotiations, hardline unionists in the Democratic Unionist Party (DUP) and other parties left, accusing the Labour government of appeasing terrorists. Negotiations nevertheless proved agonisingly slow until the spring of 1998. There were negotiations about negotiations – where the negotiations would take place, who would chair them, and what procedures would be followed. Negotiations were interrupted by walk-outs and intermittent suspensions of parties because of breaches in ceasefires. It had been agreed, however, to proceed by “sufficient consensus”, following the model of the South African peace process, the negotiating rule was that whatever was supported by a majority of nationalist and unionist negotiators would become part of the Agreement. In the end, the two governments and Senator Mitchell created a pressure-cooker atmosphere, with a specified deadline, to finalize a settlement (Mitchell 2000). Full multilateral negotiation on everything did not occur. The UUP and the SDLP largely negotiated the details of internal power-sharing. The two governments and the SDLP and the UUP made the running in designing the NorthSouth Ministerial Council and the British-Irish Council. The two governments agreed how they would handle their respective commitments to constitutional change. The UK and Irish governments negotiated with Sinn Féin and the loyalist parties, the PUP and the UDP, over arrangements for prisoner release programmes, decommissioning, and demilitarization. NGOs and others were consulted over proposals made to address questions of human rights protection, and a range of equality provisions. The administration of justice and policing arrangements were left to special commissions to be appointed by the UK government, in consultation with the Irish government. After several sleepless nights, on 10

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April 1998 a text was not opposed by the negotiators from eight of the ten parties elected to the Forum. Later, the text won the official endorsement of the two nationalist parties, the moderate ‘others’, and a majority of the unionist representatives. In a referendum a month later, the Agreement was endorsed in simultaneous referendums by 71% of those voting in Northern Ireland, and 95% of those voting in the Republic of Ireland. III Complex Power-sharing: The Belfast or Good Friday Agreement and The British-Irish Agreement A

The Name(s) of the Agreement(s)

The Agreement of 10 April 1998 is called the ‘Belfast Agreement’ by the UK government. Its most popular name, especially amongst nationalists, is the ‘Good Friday Agreement’ – because it was finalized on the alleged anniversary of Christ’s crucifixion. This name gives too much credit to Christianity, both as the key source of conflict and as a source of resolution. It might best be called the ‘British-Irish Agreement’, because it fulfils and supersedes its predecessor, the Anglo-Irish Agreement of 1985, but that name is now given to the 1999 intergovernmental treaty that incorporates the 1998 Agreement. From, here reference is made simply to ‘the Agreement’, distinguishing where necessary, the negotiated text, the UK’s legislative enactment, the Northern Ireland Act 1998, and the treaty, even though the three documents might be considered separate agreements. B

An Internal Consociation

The Agreement is consociational, i.e., it meets all the criteria: (1) cross-community executive power-sharing; (2) proportionality rules throughout the governmental and public sectors; (3) community self-government – or autonomy – and equality in cultural life; and (4) veto rights for minorities (Lijphart 1977). A consociation may be built without any explicit theory to guide it. Most often consocia-

   

The conflict is primarily ethno-national rather than religious, contrary to the perceptions of many outsiders (McGarry and O’Leary 1995a: Ch 5 & 6; 1995b). References to the negotiated text are to The Agreement: Agreement reached in the multi-party negotiations (No place of publication, No date, UK Government), 30, distributed to all households in Northern Ireland before the May 1998 referendum. Cross-community executive power-sharing (rather than the rarer case of a comprehensive grand coalition) is the necessary hallmark of a full consociation (O’Leary 2005). Lijphart claims that consociational rules were invented by Dutch politicians in 1917, and by their Lebanese (1943), Austrian (1945), Malaysian (1955), Colombian (1958), and Indian – in the 1960s – and South African (1993–1994) counterparts later in the century. One does not have to agree with the citation of any of these cases to accept

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tions are the outcomes of pacts between politicians; this Agreement was also the product of tacit and explicit consociational thought. But the Agreement was not just consociational. It has important external dimensions that reflect its status as a national self-determination settlement. It was made with the leaders of national, and not just ethnic or religious, communities; and majorities in two simultaneous and separate referendums endorsed it. It is the first consociation endorsed in referendums that required concurrent consent in jurisdictions in different states. The consociation was designed within overarching confederal and federalizing institutions, has elements of co-sovereignty in the arrangements and oversight agreed between its patron states, and it promises a novel model of ‘double protection’. These propositions are elaborated below. 1 Competencies and the Division of Functions The Agreement proposed, and the 1998 Northern Ireland Act established, a single-chamber Northern Ireland Assembly and an Executive. The Assembly and Executive have full legislative and executive competence for economic development, education, health and social services, agriculture, environment, and finance, including the local civil service. The Assembly may not legislate in contravention of the European Convention on Human Rights or European Union law, modify a specific entrenched enactment, discriminate on grounds of religious belief or political opinion, or ‘deal with’ an excepted power except in an ‘ancillary way’ – which roughly means that it may not enact laws that modify UK statutes on excepted matters, such as the Crown. The internal security functions of the state – policing and the courts – are retained by Westminster for now, but may be devolved in principle (the meaning of ‘devolution’ is addressed below), and there are proposals now published for the transfer of policing competence. Through ‘cross-community agreement’ – defined below – the Assembly may expand these competencies; and, again through such agreement and with the consent of the UK Secretary of State for Northern Ireland and the Westminster parliament, it may legislate for any currently non-devolved reserved function. Within a traditional UK constitutional perspective, maximum feasible devolved self-government is therefore within the scope of the local decision-makers. According to the Northern Ireland Act 1998, the Assembly can expand its autono-



that politicians are very capable of doing theory without the aid of theorists (Lijphart 1990b: viii; 1996). Consociational thinking was reflected in the drafting of the Framework Documents of 1995 (O’Leary 1995a), and the ‘novel’ executive design in the Agreement, based on the d’Hondt rule, and reflected coalition principles used elsewhere in Europe and in the European Parliament (O’Leary, Grofman, and Elklit 2001). Consociational thinking had had local resonance since the Sunningdale Agreement. The SDLP was especially interested in power-sharing devices, and was the prime initiator of proposals in the internal negotiations (O’Leary 1999e; 1999d; 1999a; Horowitz 2001). Dr Mowlam, the UK Secretary of State for Northern Ireland in 1997–1999, had an academic consociational heritage, and at least one of her former academic advisers has had an abiding interest in the subject.

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my only with regard to reserved, not excepted, matters. Reserved matters, most importantly, include the criminal law, criminal justice, and policing. Excepted matters include the Crown and the currency. A convention may arise in future in which the Secretary of State and Westminster ‘rubber stamp’ the legislative measures of the Assembly. Indeed, if the Agreement is fully implemented, most public policy in Ireland, North and South, may eventually be made without direct British ministerial involvement, though the British budgetary allocation will be crucial as long as Northern Ireland remains in the UK. 2 Assembly Rules and Procedures The Agreement required the 108 elected Assembly members (MLAs) to designate themselves as ‘nationalist’, ‘unionist’, or ‘other’. In this respect, Lijphart’s injunctions in favour of “self-determination rather than pre-determination” are violated (Lijphart 1985: 108ff; 1995). After the first Assembly was elected in June 1998, this requirement posed difficult questions for the Alliance Party (APNI) and other ‘cross-community’ parties, such as the Women’s Coalition (NIWC), who have both cultural Catholic and cultural Protestant leaders and voters. They determined that they were ‘others’, though they were free to change their classifications once in each Assembly, and, of course, in future Assemblies. Through standard legislative majority rule, the Assembly may pass ‘normal laws’ within its devolved powers, though there is provision – the petition procedure – for 30 of the 108 MLAs to trigger special procedures that require special majorities. But ‘key decisions’ – that is, the passage of controversial legislation, including the budget – automatically have these special procedures that require ‘cross-community’ support. Two rules have been designed for this support and flowed from the negotiating procedures used to make the Agreement. The first is ‘parallel consent’, a majority that encompasses a strict concurrent majority of registered nationalists and unionists. It requires that a law be endorsed, among those present and voting, both by an overall majority of MLAs and by majorities of both its unionist and its nationalist members respectively. The second is the ‘weighted majority’ rule, described below. The UK legislation implied that the parallel consent procedure must be attempted first, followed by the weighted majority procedure, though in the original Agreement the election of the premiers may only be effected by the parallel consent rule (see below). Table 1 records the numbers in each bloc returned in the June 1998 and November 2003 Assembly elections. Parallel consent with all members present requires in both Assemblies the support of twenty-two nationalists and thirty unionists, as well as an overall majority in the Assembly. Under parallel consent laws may pass dependent upon the support of the ‘others’ – twenty-two nationalists, thirty unionists, and three others enable the passage of a key decision. In short, it does not automatically render the ‘others’ unimportant, though plainly their position is not as pivotal as that of nationalists or unionists. The ‘weighted majority’ rule requires, among those present and voting, that to become law a measure must have the support of 60% of members. But it also requires the support of 40% of registered nationalist members and 40% of unionist members, i.e., in both

4  Complex Power-sharing in and over Northern Ireland

Table 1 Bloc Performances in the June 1998 and November 2003 Northern Ireland Assembly Elections Bloc Nationalists Unionists ‘Yes’ Unionists ‘No’ Unionists Others

1998 2003 1998 2003 1998 2003 1998 2003 1998 2003

V (1st preference vote) % 38.8 40.8* 50.5 51.3+ 25.0 23.9 25.5 27.4 8.4 7.9

Seats

42 42 58 59 30 28 28 31 8 7



S (seats %) 38.9 38.9 53.7 54.6 27.8 25.9 25.9 28.7 7.4 6.5

V–S

-0.1 -1.9 +3.2 +3.3 +2.8 +2.0 +0.4 +1.3 -1.0 +1.4

Source: O’Leary 1999d updated Notes: * includes Eamon McCann as a Socialist candidate in Foyle; + includes the Conservatives. The whole of the UUP in 1998 and 2003 is counted as ‘Yes Unionist’ because the party’s official platform was pro-Agreement.

Assemblies at least seventeen nationalists and at least twenty-four unionists had to consent. All nationalists (forty-two) and the minimum necessary number of unionists (twenty-four) had the combined support for any measure to pass in this way – without support from the ‘others’. By contrast, combinations of all the others (eight or seven) and the minimum number of nationalists (seventeen) and the minimum number of unionists (twenty-four) could not deliver a majority, let alone a weighted majority. The operation of the rules obviously depend not just on how parties register, but also on their internal discipline within the Assembly. The outcome of the 1998 elections suggested that pro-Agreement unionist MLAs (thirty) would be vulnerable to pressure from anti-Agreement unionists (twenty-eight). Within the ranks of the pro-Agreement UUP were MLAs who were de facto anti-Agreement. Indeed, one UUP MLA subsequently resigned his party’s whip and later became a member of the DUP. But his rebellion left room for the Agreement to function. The UUP could deliver a workable portion of a cross-community majority under the weighted majority rule, even with six dissidents, provided that party leader David Trimble could rely on the two pro-Agreement Progressive Unionist Party (PUP) MLAs. The relative weakness of the pro-Agreement unionists would prove very damaging to the stabilization of the Agreement. In the 2003 elections, the numbers of formally pro- (twenty

There is one important exception to this possibility: the death or the resignation of either premier required that both be replaced under the parallel consent rule, see below.

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eight) and anti-Agreement (thirty-one) unionists were almost exactly reversed – though the UUP once again contained anti-Agreement MLAs within its ranks. At the time of writing, it was unclear whether the strength of the DUP would terminate the Agreement, lead to its re-negotiation (what it had campaigned for), or generate a fresh intra-Agreement compromise, led by the more robust representatives of each national tradition. There is one additional ‘supermajority’ rule. The Assembly may, by a twothirds resolution of its membership, call an extraordinary general election before its statutory four-year term expires. This rule was agreed by the parties, after the Agreement, in preference to a proposal that the UK Secretary of State should have the power to dissolve or suspend the Assembly – a sign of the local parties’ commitment to their self-government. Subsequently, to suspend the Assembly in February 2000, the Secretary of State for Northern Ireland, Peter Mandelson, had to pass new primary UK legislation, the Northern Ireland Act 2000, through the Westminster parliament, and outside the remit of the Agreement – which is why Irish nationalists and others regarded the suspension as a breach of the Agreement, and indeed of the 1999 intergovernmental treaty (O’Leary 2000d; and see below). 3 Executive Power-sharing: A Dual Premiership and D’Hondt Executive The Agreement established a novel Executive Committee, and, at its head, two quasi-presidential figures, a diarchy: a First Minister (FM) and a Deputy First Minister (DFM), who are equal in powers. Once elected, this diarchy have presidential characteristics, because it is almost impossible to depose them, provided they remain united as a team, until the next general election. The essence of ‘presidentialism’ is an executive that cannot be destroyed by an assembly except through impeachment. The FM and DFM are elected together by the parallel consent procedure. This rule gives very strong incentives to unionists and nationalists to nominate a candidate for one of these positions that is acceptable to a majority of the other bloc’s Assembly members. In the first elections for these posts, in designate form, pro-Agreement unionists in the UUP and the PUP voted solidly for the combination of David Trimble of the UUP and Seamus Mallon of the SDLP. Naturally, so did the SDLP, which enjoyed a majority among registered nationalists. The ‘No’ unionists voted against this combination, while Sinn Féin abstained. The rule ensures, though it does not officially require, that a unionist and a nationalist share the top two posts: it does not specify which must be First Minister. The Agreement and the Northern Ireland Act 1998 make clear that the two posts have identical symbolic and external representation functions. In the negotiations, the SDLP conceded the difference in dignity in title between the positions but successfully insisted on no differences in their respective powers (confidential sources). The sole difference between the premiers is their titles: both preside over the Executive Committee of Ministers and have a role in coordinating its work. Clause 15 (10) of the Northern Ireland Act 1998 also enables the top two ministers to hold functional portfolios. This dual premiership critically depends upon the cooperation of the two office-holders and upon the coopera-

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tion of their respective majorities – or pluralities under the weighted majority rule. Article 16(7) of the Northern Ireland Act 1998 reinforced their interdependence by requiring that “if either the First Minister or the deputy First Minister ceases to hold office, whether by resignation or otherwise, the other shall also cease to hold office.” The Act also specified in Article 32(3) that if the Assembly fails to elect two premiers within six weeks that “the Secretary of State shall propose a date for the poll for the election of the next Assembly.” The outcome of the November 2003 Assembly elections produced a scenario that many had foreseen, namely majorities for Sinn Féin and the DUP within the nationalist and unionist blocs respectively, and with the DUP formally determined not to share the premierships with Sinn Féin (though Sinn Féin is fully prepared to share power with the DUP). At the time of writing, it was unclear how this crisis would be resolved – though technically Article 32(3) requires fresh elections within six weeks if the DUP refuses to share the premiership with Sinn Féin (or a Sinn Féin-endorsed SDLP premier). The formation of the rest of the Executive Committee, according to the procedure described below, did not go smoothly in the first Assembly. In the summer of 1999, Seamus Mallon resigned as Deputy First Minister (designate), complaining that the UUP was “dishonouring” the Agreement and “insulting its principles” by insisting upon the decommissioning of paramilitaries’ weapons before executive formation.10 He did so to speed an intergovernmental review of the implementation of the Agreement. The question arose, did Mallon’s resignation automatically trigger Trimble’s departure from office and require fresh elections to these positions within six weeks (a question rendered critical by the defection of the UUP MLA mentioned above)? The (Initial) Presiding Officer’s answer to this question was that it did not, because the Assembly was not yet functioning under the Northern Ireland Act.11 This answer was accepted. It implied that if the review of the Agreement succeeded and the Agreement’s institutions came into force, either that there would have to be fresh elections of the FM and DFM under the parallel consent rule or that Mallon’s resignation would have to be rescinded. When the review succeeded and the Agreement’s institutions came on line, the Assembly adopted the expedient of voting to nullify Mallon’s resignation, there10 11

See statement by the Deputy First Minister (Designate), Northern Ireland Assembly, 15 July (1999: 325). “Members will recall that the First Minister (Designate) and the Deputy First Minister (Designate) were elected, and I use the common parlance, ‘on a slate’, when we were in a post-devolution situation. That means that under the Northern Ireland Act, both positions would fall when one resigned, but the remaining individual would remain in a caretaker capacity for up to six weeks. Before the end of that period the Presiding Officer would call for a further election. However, we are still functioning under the Northern Ireland (Elections) Act for these purposes and, therefore, the position of the First Minister (designate), as I understand it – and you have simply asked me for an immediate view – is unchanged. It is possible that some Standing Order, or other arrangement, may already be on the way, but I have no knowledge of it.” (Northern Ireland Assembly 1999: 326–327).

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by preventing a vote under the parallel consent rule that might have prevented Trimble’s and Mallon’s (re)installation in office. Later, it would not prove so easy to elect the premiers when Mark Durkan replaced Seamus Mallon as the nominee of the SDLP. The premiers have implicit and explicit coordinating executive functions, as approved by the Shadow Assembly in February 1999 (Wilford 2001). The Department of the First and Deputy First Ministers was created to fulfill them. It has an Economic Policy Unit and an Equality Unit, and is tasked with liaising with the other institutions of the Agreement, namely, the North-South Ministerial Council, the British-Irish Council, the Secretary of State on reserved and excepted UK powers, and EU/international matters, and, of course, with cross-departmental coordination. Unlike executive presidencies, and unlike most prime ministers, neither the FM nor the DFM formally appoints the other ministers to the Executive Committee. Instead, posts in the Executive Committee, or cabinet, are allocated to parties in proportion to their strength in the Assembly, according to the d’Hondt rule (O’Leary, Grofman and Elklit 2001). Under this rule, posts in the rest of the Executive Committee are allocated to parties in proportion to their strength in the Assembly. The rule’s consequences are clear: any party that wins a significant share of seats and is willing to abide by the new institutional rules has a reasonable chance of access to the executive, a subtly inclusive form of executive formation, one that permits but does not mandate a ‘grand coalition government’. It is a voluntary arrangement because parties are free to exclude themselves from the Executive Committee. No programme of government has to be negotiated in advance between the parties entitled to portfolios. The design, in principle, creates strong incentives for parties to take up their entitlements to ministries, because, if they do not, then the portfolios go either to their ethno-national rivals, or to their rivals in their own bloc.12 The d’Hondt allocation procedure means 12

The rules of executive formation do not require any specific proportion of nationalists and unionists. In the course of the crisis over executive formation in 1999, Dr Mowlam introduced a new rule requiring that a well-formed executive consist of at least three designated nationalists and three designated unionists. On 15 July 1999, in a hand-written note to the Initial Presiding Officer, she added an additional Standing Order to the running of d’Hondt: “On the completion of the procedure for the appointment of Ministers (designate) under this Standing Order, the persons appointed shall only continue to hold Ministerial office (designate) if they include at least 3 designated Nationalists and 3 designated Unionists.” This order, authorized under the Northern Ireland (Elections) Act 1998, in my view, was the first technical breach of the letter of the Agreement. Given that the parties had previously agreed that the executive should consist of ten ministers, in addition to the First and Deputy First Ministers, the standing order gave a veto power to the UUP (and the SDLP) over executive formation, because each party was entitled to three seats on the basis of its strength in seats won. The standing order was introduced in a hurry to stop a running of the procedure for executive formation leading either to an all-nationalist executive, as actually transpired – given the decision of the UUP to fail to turn up to the Assembly when the process was triggered and the decision of the ‘No’ unionists

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that democratic parties get the absolute right to nominate ministers according to their respective strength in seats; that is, no vote of confidence is required by the Assembly either for individual ministers or for the Executive Committee as a whole. A party as a whole may be excluded from a right to nominate if it is deemed by the Assembly, through cross-community consent procedures, to be in breach of the requirements of the Pledge of Office (see below). Efforts by unionist MLAs to have Sinn Féin so deemed foundered in the first Assembly because the moderate nationalists in the SDLP did not support them. Parties choose, in order of their strength, their preferred ministries – which leads to fascinating strategic decision-making (O’Leary, Grofman, and Elklit 2001). The Assembly under the cross-community rules may depose an individual minister from office, but the party that held the relevant ministry is entitled to appoint his or her successor from amongst its ranks. In the course of 2000 the anti-Agreement DUP decided to take advantage of this provision to rotate some of its MLAs through its two ministerial portfolios. Its critics observed that they did not, however, resign their entitlements to the two ministries. Crises over executive formation and maintenance have been the major signals that the Agreement might fail. The first crisis arose for political and constitutional reasons. Politically, because Trimble insisted that the IRA organize some decommissioning of its weapons before Sinn Féin members could take their ministries in the Executive Committee. ‘No government before guns’ became his catchphrase. Otherwise, he threatened he would refuse to cooperate in the running of the d’Hondt procedure. Constitutionally, that is, under the text of the Agreement, Trimble had no warrant to exercise this veto. No party is entitled to veto another party’s membership of the Executive, though the Assembly as a whole, through cross-community consent, may deem a party unfit for office; the Agreement did not specify a starting date for decommissioning, though it did require parties to use their best endeavours to achieve its completion within two years of the referendum, that is, by 22 May 2000; and any ‘natural’ reading of the text of the Agreement mandated executive formation as a necessary step to bring all the Agreement’s institutions ‘on line’. Trimble rested his case on a communication he had received from the UK prime minister on the morning the Agreement was made, indicating that it was Blair’s view that decommissioning “should begin straight away.” Communications of opinions from UK premiers do not, of course, have the force of law and the ‘should’ in Blair’s text was in the subtle subjuncnot to take their ministerial entitlements – or to an executive in which there would have been no pro-Agreement unionists (Northern Ireland Assembly 1999: 317). This panic measure subtly changed the executive’s incentive structures as previously agreed in the negotiation of the Agreement. It was consociational in spirit, but it was not negotiated by the parties, was not endorsed in the referendums, and encouraged moderates to over-bargain, knowing that they could veto executive formation. The Standing Order no longer has force, so by implication, in future any boycott of the executive by a party entitled to representation should lead to the re-allocation of its ministries.

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tive mood rather than a mandatory reading of the Agreement. Trimble’s concern was to appease critics of the Agreement within his own party. His negotiating team had split, with one of his Westminster MPs, Jeffrey Donaldson, walking out on the morning of 10 April – he would later join the DUP; a majority of his party’s Westminster MPs opposed the Agreement; and his new Assembly party contained critics of aspects of the Agreement. The UK and Irish governments, sympathetic to his exposed position, initially facilitated Trimble in exercising his veto; and he took advantage of the fact that the SDLP did not make the formation of the rest of the executive a precondition of its support for the TrimbleMallon ticket for FM and DFM. One provision in the Agreement gave Trimble further room for manoeuvre. The Agreement implied that there would be at least six other Ministers apart from the premiers, but that there could be “up to” ten (Government of the UK 1998: Strand One, paras. 14 (explicitly) and 3 (implicitly)). The number of ministries was to be decided by MLAs through cross-community consent, and that gave Trimble the opportunity to delay executive formation. It would be December 1998 before the parties reached agreement on ten ministries, when the UUP finally abandoned its demand for seven rather than ten departmental ministries: with seven, unionists would have had an overall majority in the Executive Committee (for details of the ministries, see Table 3). Most of 1999 saw protracted bargaining, including a failed running of the d’Hondt procedure to fill the executive in July, but no consensus on proceeding to formation. Mallon’s resignation triggered a review of the Agreement, as permitted by its terms, under US Senator George Mitchell. In mid-November, the crisis looked as if, in principle, it would be resolved. The UUP accepted that executive formation would occur – with the IRA appointing an interlocutor to negotiate with the International Commission on Decommissioning – while actual arms decommissioning, consistent with the text of the Agreement, would not be required until after executive formation. In concluding his review, and with the consent of the pro-Agreement parties, Senator Mitchell stated that: “Devolution should take effect, then the executive should meet, and then the paramilitary groups should appoint their authorized representatives, all on the same day, in that order.” This appeared an honourable resolution to what appeared a fundamental impasse. The d’Hondt procedure was followed, and Northern Ireland had its novel powersharing Executive Committee – though the Ulster Unionist Council of the UUP would later render problematic this settlement within the settlement. Viktor d’Hondt devised a method of proportional representation used for many purposes, including allocating political offices in the European Parliament. The method works by iteration, using a simple series of divisors, 1, 2, 3, … n, that are divided into a party’s share of votes or seats. Tables 2 and 3 show how the allocation worked for the Northern Ireland Executive Committee in 1999. The seats won by the largest political parties and the order in which ministries were allocated are displayed in Table 2. (The principal change from Table 1 is that the UUP had lost one member to the ‘No’ unionists, reducing the party’s membership in the Assembly to twenty-seven).

4  Complex Power-sharing in and over Northern Ireland

Table 2 The Allocation of Ministerial Portfolios by d’Hondt, 1999 Divisor 1 2 3 All M

S 27 14 9

UUP M (1) (5) (8) 3

S 20 10 6.6

DUP M (3) (7) 2

S 24 12 8

SDLP M (2) (6) (10) 3

S 18 9 6

SF M (4) (9) 2

The numbers in brackets in the M columns indicate the order in which parties won ministries of their choice; S is the number of seats each party has during each stage of the allocation. In 1999, all parties entitled to ministries were willing to take them. The party with the largest number of seats, the UUP, obtained the first ministry, and then its seat share was divided by two, leaving it with 13.5. The next largest remaining number of seats was held by the SDLP; it chose the second ministry, and its seat share was divided by two, leaving it with 12. The next largest remaining number of seats was held by the DUP; it chose the third ministry, and its seat share was divided by two, leaving it with 10. The next largest remaining number of seats was held by Sinn Féin; it chose the fourth ministry, and its seat share was divided by two, leaving it with 9. The next largest remaining number of seats was the UUP, with 13.5; it chose the fifth ministry, and its total seat share was divided by three, leaving it with 9. And so on. Great foresight was shown in the legislative enactment of the Agreement: where there is a tie in the number of seats held by parties during any stage of the allocation, precedence is given to the party with the higher share of the first-preference vote. The tie-breaker was required at stage 8, when both the UUP – 27/3 seats – and Sinn Féin – 18/2 seats – had a remaining seat total of 9. In accordance with the rule, the UUP was given precedence in portfolio choice. Unionists therefore obtained five ministries (three UUP and two DUP ) and nationalists obtained five (three SDLP and two SF), a mild disproportionality by bloc, but not by party. After the 2003 elections, by contrast, unionists were entitled to six ministries, and nationalists four, a result that is more proportional by bloc as well as party. In 1999, unionists did not fare as well as nationalists in strategic decision-making over portfolio allocation. Nationalists obtained almost the entire welfare state portfolio – education at all levels, health and social services, and agriculture – as well as finance and personnel. What happened? Table 3 shows the actual portfolios chosen by parties at each stage in the allocation.

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Table 3 Party Choices of Ministerial Portfolios, 1999 Portfolio 1. Enterprise, Trade and Investment 2. Finance and Personnel 3. Regional Development 4. Education 5. Environment 6. Higher and Further Education, Training and Development 7. Social Development 8. Culture, Art and Leisure 9. Health, Social Services and Public Safety 10. Agriculture

Nominee Empey Durkan Robinson McGuinness Foster Farren

Party UUP SDLP DUP SF UUP SDLP

Dodds McGimpsey de Brun Rogers

DUP UUP SF SDLP

There was no coordination between the UUP and the DUP, or between the SDLP and Sinn Féin, but, since the negotiation of the Agreement, relations between the SDLP and Sinn Féin have been more amicable than those between the UUP and the DUP. The UUP did not, as expected, take the Finance and Personnel portfolio with its first choice. This decision may have been affected by Empey’s own preferences – as Trimble’s right-hand man during the negotiations he may have had a free hand – or by the fact that Enterprise, Trade and Investment would mesh well with the Economic Policy Unit in the First and Deputy First Ministers’ Office. More likely, the UUP may have calculated that it would be best to give the SDLP the lead negotiation and arbitration role over the budget, knowing that the SDLP would be better able to face down Sinn Féin’s suggestions. The SDLP’s choice of Finance and Personnel was no surprise given that the post was available. The DUP then had the choice of the third ministry. The party had decided to take office while refusing to interact with Sinn Féin ministers. It appeared to be seeking to wreck the Agreement from within, while obtaining some of the perks of office to which it was entitled. Its leader, Ian Paisley, nominated his deputy leader, Robinson, to the Regional Development portfolio, consisting largely of transport. Whether this was to prevent vigourous cross-border initiatives in this area, or because the ministry could offer patronage and pork barrel opportunities is not known. This choice did, however, leave Sinn Féin free to pick the Education portfolio, which plainly shocked many unionist Assembly members. Sinn Féin’s choice made strategic sense for a radical nationalist party. The education ministry gave it access to a high-profile, big-spending, potentially redistributive and socializing ministry. The UUP then chose Environment, and the party leader nominated a relative unknown, Foster, to the portfolio. The ministry contains Local Government within its remit and Foster is a local government councillor – he was being rewarded by his party leader for delivering him crucial support. The choice may partly have been motivated by a desire to block unwelcome changes that might be proposed for local government. Whatever its rationale, it left the

4  Complex Power-sharing in and over Northern Ireland

SDLP free to pick the Higher and Further Education, Training and Development portfolio. The DUP then claimed that the UUP’s decisions had left nationalists in full control of education throughout Northern Ireland – this was not true because of the checks and balances in the Assembly, and in any case the DUP could have picked either education portfolio for itself, but did not do so. It is not known whether it wanted to benefit from unionists’ anxieties over nationalists’ grip on the education portfolios – the Machiavellian view – or whether it prioritized other matters. The DUP then chose the Social Development portfolio, a choice that left the UUP with a major headache. If it took either of Health, Social Services and Public Safety or Agriculture then it would leave one nationalist in charge of the Ministry of Culture, Arts and Leisure, with its potential agenda-setting control over items such as parades and binational and bilingual matters. The UUP chose to sacrifice access to a big-spending ministry for this reason. Sinn Féin and the SDLP then took the remaining portfolios, appointing women to the last two ministries in a display of progressive politics. This story suggests some major ideas for power-sharing. The d’Hondt rule – and variations on it, such as a Saint-Laguë rule – is an efficient way of solving coalition-making problems, one that saves on the transactions costs of bargaining over coalition government. The Northern Ireland Act stops parties from forming post-election coalition pacts for the purpose of improving on their total number of portfolios and the pecking order in which they receive ministries, but plainly in other systems such pacting might be permitted. The consociational criterion of cross-community executive power-sharing is clearly met in the negotiated Agreement and its UK legislative enactment, but there are special features of the arrangements that differ from other consociational experiments. Ministers take a ‘Pledge of Office’, not an ‘Oath of Allegiance’. This cements what nationalists see as the binationalism at the heart of the Agreement: nationalist ministers do not have to swear an Oath of Allegiance to the Crown or the Union. The Pledge requires ministers to: • discharge their duties in good faith; • follow exclusively peaceful and democratic politics; • participate in preparing a programme of government; and • support and follow the decisions of the Executive Committee and the Assembly. The duties of office include a requirement to serve all the people equally, to promote equality, and to prevent discrimination – which means, according to the UK’s doctrine of ministerial responsibility, that civil servants will be bound to run their departments consistent with these obligations (McCrudden 1999a; 1999b; 2001). They include a requirement that the ‘relevant Ministers’ serve in the North-South Ministerial Council, a duty that, in conjunction with other clauses, intended to prevent parties opposed to this aspect of the Agreement, such as the DUP, from abusing their offices or taking offices in bad faith. The UUP and the SDLP, in the negotiations over the Northern Ireland Act 1998, agreed that junior ministers could be created. They were put in place only in

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the Office of the FM and DFM, one from the UUP and one from the SDLP; more could be allocated places under the d’Hondt process, though they are not obliged to be appointed in this way.13 Most of the leading members of the major parties willing to participate in the executive, in consequence, ‘win prizes’ of one sort or another – something intended to provide incentives for a shift of posture on the part of ambitious anti-Agreement Assembly members. These incentives have worked, at least in part. The anti-Agreement DUP took its seats in the Executive and in the Assembly’s Committees, and fought the 2001 Westminster general election not on a pledge to scrap the Agreement but to renegotiate it (Mitchell, O’Leary, and Evans 2001; 2002); it fought the November 2003 Assembly elections on the same platform. At the time of composition it remained to be seen whether these incentives would operate further – the DUP now has an entitlement to the First Minister position, but if, and only if, it accepts a Sinn Féin-approved Deputy First Minister. This inclusive executive design, of course, means that the new Assembly has a rather small part of its membership free to function as an opposition for standard adversarial parliamentary debating in the classic Westminster mould, though the inter-party rhetorical engagement in the Assembly is sometimes difficult to reconcile with the fact that the four largest parties – the UUP, the SDLP, the DUP, and Sinn Féin – share the cabinet positions. The standard complaint of critics of consociation – that it weakens the effectiveness of parliamentary opposition – must, however, surely be tempered in this case by the fact that the backbenchers from other parties in the government are likely to hold the relevant minister vigourously to account. Moreover, mechanisms for rigourous accountability exist because ministers face an Assembly Committee in their jurisdiction that is headed by a representative of another party. How should we appraise the executive design that is at the heart of the Agreement? The special skill of the negotiators, building on their past experience and comparative knowledge, was to create strong incentives for executive power-sharing and power-division, but without requiring parties to have any prior formal coalition agreement – other than the institutional agreement – and without requiring any party to renounce its long-run aspirations. The dual premiership was designed to tie moderate representatives of each bloc together and to give some drive towards overall policy coherence. It was intended to strengthen moderates and to give them significant steering powers over the rest of the executive. The d’Hondt mechanism, by contrast, ensures inclusivity and was carefully explained to the public as achieving precisely that: “The purpose is to ensure confidence across the community … so that people know that their parties will, if they receive a sufficient mandate in the election, have the opportunity for their Members to become Ministers and play their part in the Executive Committee.” (House of Commons 1998: col. 1023). It also saves on the transaction costs of bargaining over 13

Section 19 of the Northern Ireland Act 1998 permits the First and Deputy First Ministers to determine, subject to Assembly approval, the number of junior ministers and procedures for their appointment.

4  Complex Power-sharing in and over Northern Ireland

portfolios. Distinctive coalitions can form around different issues within the Executive, permitting flexibility but inhibiting chaos – given the requirement that the budget be agreed by cross-community consent. The Executive successfully agreed a budget and a programme of government through inter-ministerial bargaining during 2000–2001. The DUP ministers agreed it, though they then supported their colleagues in voting against it in the Assembly (secure in the knowledge that the other parties would pass it)! These creative incentives to keep parties in the executive despite strong disagreements means the Agreement differs positively from the Sunningdale power-sharing experiment of 1973 that sought to maintain traditional UK notions of collective cabinet responsibility. What was not foreseen was that failure to timetable the formation of the rest of the Executive immediately after the election of the FM and DFM could precipitate a protracted crisis. Trimble availed himself of this loophole to prevent executive formation until November 1999. If the Agreement survives, a future review might agree amendments to the Northern Ireland Act 1998 that could be adopted by the UK parliament or by the Assembly and that would be consistent with the Agreement to prevent any recurrence of this type of crisis. In future, candidates for FM and DFM could be obliged to state the number of executive portfolios that will be available, and the formation of the executive should be required immediately after their election. That would plug this particular constitutional hole. It may, however, be unnecessary. It is not likely that future candidates for FM and DFM will agree to be nominated without a firm agreement on the number of portfolios and the date of cabinet formation. In the author’s view, it would be best that the rest of the Executive were formed before the election of the premiers (after all, the text of the Agreement created no necessary link between the election of the premiers and the allocation of all other ministerial portfolios). What was also not foreseen was that the dual premiership might prove the most brittle of all the new institutions. Recall that the two large moderate parties separately negotiated its creation, in which they had very direct stakes. Other possibilities were excluded, such as filling all the top positions, including the premiers, by the d’Hondt rule, or by another allocation rule. Also, the posts were later made tightly interdependent: the resignation or death of one triggers the other’s formal departure from office, and requires fresh elections within six weeks. One consequence has been that all inter-communal tension has been transmitted through these posts: Mallon deployed his resignation power before the executive was fully formed; Trimble later deployed the resignation threat to precipitate a unilateral suspension of the Agreement’s institutions by the UK; and was to do so again in 2001, just before the Westminster general elections: a resignation that became operative on 1 July 2001.14 The November 2003 elections have created a 14

The relationship between the first two premiers progressively worsened after a promising beginning, and culminated in Trimble giving Mallon two minutes notice of his intention to repeat his use of a post-dated resignation letter. One sage reporter describes the Mallon-Trimble relationship as “poisonous,” compounded by Trimble’s character traits – “unpredictable and mercurial, often bewildering, sometimes im-

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fresh crisis, showing that the dual premiership has been a lightening rod for deep tensions at least as much as it has been a mechanism for joint coordination and creation of calm. 4 Proportionality Rules Consociational arrangements are built on principles of proportionality. The Agreement meets this test in four ways: i) in the d’Hondt procedure for executive formation discussed above; ii) in the Assembly’s committees; iii) in the electoral system for the Assembly; and iv) and in the recruitment and promotion policies within the public sector. a The Assembly’s Committees The Assembly has committees scrutinizing each of the departments headed by ministers. Committee Chairs and Deputy Chairs are allocated according to the d’Hondt rule. Committee composition is in proportion to the composition of the Assembly. Each committee must approve any proposed new law within its jurisdiction tabled by ministers, and the committee can itself initiate legislative proposals. Consequently, a committee dominated by other parties may block the legislative initiatives of a dynamic minister, and it may initiate legislation not to that minister’s liking – though the success of such proposals is subject to crosscommunity special procedures. So the committee system combines the two consociational principles of proportionality and veto rights. In the passage of the Northern Ireland Act 1998, the committees were explicitly prevented, by law, from being chaired or deputy-chaired by ministers or junior ministers, and are required, where feasible, to be organized in such a way that the Chair and Deputy Chair be from parties other than that of the relevant minister. This ensures the accountability of ministers at least to MLAs from other parties and inhibits fullscale party fiefdoms in any functional sector. It also refutes the suggestion of consociation’s critics that a power-sharing system precludes effective accountability. b The Electoral System for the Assembly Elections to the 108-member Assembly must be conducted under a proportional representation (PR) system, using the single transferable vote (STV) method, in six-member constituencies – though the Assembly may choose, by cross-community consent procedures, to advocate change from this system (subject to ratification by Westminster). The ‘Droop’ quota used in STV is V/(N+1)/1, where V = total valid votes, and N = number of Assembly members to be elected. The Droop quota in each constituency is therefore one seventh or 14.3%, which squeezes the very small parties, or, alternatively, encourages them to form electoral alliances. Thus the smaller of the two loyalist parties, the UDP, won no seats in the first Aspossible” – and by the nature of his career – “a mixture of dashes and longeurs, alternatively crisis-ridden and becalmed, of tacks towards moderation interspersed with lurches to the confrontational” (McKittrick 2001: 27).

4  Complex Power-sharing in and over Northern Ireland

sembly election. Very small parties that can gather lower-order preferences from across the unionist and nationalist blocs, such as the Women’s Coalition, have shown that the system need not preclude representation for small parties (they had two MLAs elected in 1998, though none in 2003). This system, STV-PR, is not what Lijphart recommends for consociational agreements (Lijphart 1990a). He is an advocate of party-list PR systems, principally because he believes they help make party leaders more powerful and better able to sustain inter-ethnic consociational deals.15 Those who would like to have seen Trimble in greater control of the UUP might hanker after Lijphart’s preferred form of PR. The 1998 Northern Ireland Assembly suggests that a modification of the consociational prescriptive canon is in order. Had a region-wide party-list system been in operation in June 1998, the UUP would have ended up with fewer seats, and with fewer seats than the SDLP. As a consequence, the implementation of the Agreement would have been even more problematic. There is a further, and less contingent, argument against party-list systems in consociations that is especially important where the relevant ethnic communities are internally democratic rather than sociologically and politically monolithic. A region-wide partylist election gives incentives for the formation of a wide variety of micro-parties. It would have fragmented the votes of the major parties that made the Agreement. Hardliners under party-list systems have every reason to form fresh parties knowing that their disloyalty will penalize more moderate parties, but without necessarily reducing the total vote and seat share of the relevant ethno-national bloc. This objection to Lijphart’s favoured prescription is not merely speculative. The 1996 elections to the Northern Ireland Peace Forum used a mixture of a party-list system and ‘reserved seats’. Party proliferation and the erosion of the UUP first-preference vote were among the more obvious consequences (Evans and O’Leary 1997).16 STV, of course, does not guarantee party discipline, as mul15

16

Lijphart argues for this system rather than STV because it: (1) allows for a high district magnitude, making possible greater proportionality; (2) is less vulnerable to gerrymandering; and (3) is simpler for voters and organizers (Lijphart 1990a). By contrast, I think high thresholds help reduce fragmentation, as a trade-off against ‘better’ proportionality. Contra Lijphart, I think that STV, legislatively enacted with uniform district magnitudes and supervised by independent electoral commissions charged with creating uniform electorates, is not more vulnerable to gerrymandering than regional party-list PR. I concede that STV is suitable only for numerate electorates, but otherwise its complexities are not especially mysterious – no more so than the formulas used for achieving proportionality in party-list systems. The nature of executive formation in the Agreement should act as one possible check on the possibilities of fragmentation under party-list PR, because only large parties are likely to win ministries under d’Hondt, but that is true of any electoral system combined with this executive. In the November 2003 elections, the unification of anti-Agreement unionist voters behind the DUP not only reduced fragmentation but increased all unionists entitlements to ministries from five to six (what mattered was the reduction in small unionist parties not the net increase (one) in unionist MLAs).

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tiple candidates for the same party in a given constituency may present, tacitly or otherwise, slightly different emphases on party commitments, as indeed happened in Northern Ireland in 1998 and 2003. But I suggest that STV, combined with higher effective thresholds than under most forms of party-list PR, makes it more likely that parties will remain formally unified and therefore able to make and maintain consociational deals if they want to do so. At the very least, the prescriptive superiority of the party-list system for these purposes is unproven, and Lijphart’s consistent counsel in this respect should be modified.17 As well as achieving proportionality, STV has the merit of facilitating inter-ethnic ‘vote-pooling’ (Horowitz 1985: 628 ff ). In principle, voters can use their lowerorder preferences – ‘transfer papers’ – to reward pro-Agreement candidates at the expense of anti-Agreement candidates. In this respect, STV looks tailor-made to achieve the ‘interethnic’ and ‘crossethnic’ voting favoured by Donald Horowitz, a vigorous critic of consociational thinking, but an advocate of institutional and policy devices to facilitate conflict-reduction (Horowitz 1985; 1989a; 1989b; 1991). However, Horowitz believes that STV damages the prospects for interethnic cooperation because the relatively low quota required to win a seat in six-member constituencies makes it too easy for hardline parties and their candidates to be successful (Horowitz 2001). He also thinks that the Agreement’s institutions, biased towards the key consociational partners, nationalists and unionists, compound this effect by weakening the prospects of cross-ethnic parties, such as the Alliance, which he believes is likely to impair conflict-reduction. The Northern Ireland case challenges Horowitz’s reasoning (Horowitz 1991; 2001). Horowitz would prefer the use of the Alternative Vote (AV) in single-member constituencies, because its quota – 50% plus 1 – would deliver strong support to moderate ethno-national and cross-ethnic candidates. But, this prescription is incoherent. First, the outcomes it would deliver would be majoritarian, disproportional, and unpredictably so. They would be disproportional both within blocs and across blocs. They would, additionally, have much more indirectly ‘inclusive’ effects than STV. In some constituencies, there would be unambiguous unionist and nationalist majorities (Mitchell, O’Leary, and Evans 2001) – and thus AV would lead to the under-representation of minority voters within these constituencies, and to local fiefdoms. Second, while candidates would often have to seek support for lower-order preferences under AV, it would not be at all obvious that their best strategy would be to seek lower-order preferences across the ethno-national divide. Instead, the imperative of staying in the count would dictate building as big an initial first and second preference vote tally as possible.18 Third, AV would never be agreed to by hardline parties entering a constitutional settlement if they 17 18

John McGarry and I used to assume the superiority of the party-list system (McGarry and O’Leary 1990a: 297). Facts and reflection have made me reconsider the merits of STV (O’Duffy and O’Leary 1995; O’Leary 1999c). It may be that AV’s presumptively moderating effects materialize better in multi-ethnic political systems with no actual or potentially dominant group in given districts – a situation that does not obtain in Northern Ireland.

4  Complex Power-sharing in and over Northern Ireland

believed it would be likely to undermine their electoral support. Since the Agreement was made possible by encouraging ‘inclusivity’, by facilitating negotiations which included Sinn Féin (the party that had supported the IRA) and the PUP and the UDP (the parties that had supported the loyalist Ulster Defence Association (UDA) and Ulster Volunteer Force (UVF)), it would have been perverse for their leaders to agree to an electoral system that minimized their future prospects. Indeed, STV arguably worked productively both before and after the Agreement. It helped to moderate the policy stance of Sinn Féin. After its first phase of electoral participation in elections in Northern Ireland in the 1980s and in the Irish Republic in the latter half of the 1980s, the party discovered that it was in a ghetto. Its candidates in some local government constituencies would pile up large numbers of first-preference ballot papers but then sit unelected as a range of other parties’ candidates passed them to achieve quotas on the basis of lower-order preferences.19 They received very few lower-order preferences from SDLP voters. However, once the party moderated its stance, promoted the IRA’s ceasefire(s), and became the champion of a peace process and a negotiated settlement, it found that its first-preference vote, its transfer vote, and its seats won all increased. The relevant constitutional design argument advanced here is this: where there has been party fragmentation within ethno-national blocs, then STV can assist accommodating postures and initiatives by parties and candidates, both intra-bloc and inter-bloc.20 The primary normative objection to Horowitz’s position is that proportionality norms better match both parties’ respective bargaining strengths and their conceptions of justice. Once party pluralism has already emerged, some form of proportionality is more likely to be legitimate than a shift to strongly majoritarian systems, such as AV, or to systems with ad hoc distributive requirements that will always be – correctly – represented as gerrymanders. Horowitz’s electoral integrationist prescriptions are most likely to be pertinent only at the formation of a competitive party system. Once party formation and party pluralism within blocs have occurred, there will be few agents with the incentives to implement Horowitz’s preferences; and if a third party or outside power does so it would be a provocation to the less moderate parties, and might re-ignite ethno-national tensions. These arguments in defence of STV are, of course, qualified. STV alone 19

STV has been used in local government elections and European parliamentary elections in Northern Ireland since 1973 and 1979, respectively. Interestingly, the hardline unionist Ian Paisley has been most successful in the three-member district used to elect Northern Ireland’s MEPs; in the more proportional five- or six-member local government or Assembly constituencies the DUP did not fare as well before 2003. 20 The corollary is that STV’s positive effects apply to already polarized and pluralized party systems in ethno-nationally divided societies. If there has been no prior history of ethnicized party polarization within a state, or of pluralization of parties within ethno-national blocs, the merits of its implementation may be reasonably doubted. This consideration raises the key problem with Horowitz’s electoral integrationist prescriptions: they apply best to forestalling or inhibiting ethnic conflict and are less effective remedies for cases of developed, protracted, and intense ethnic and ethnonational conflict.

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is not enough, and it may not be appropriate everywhere. But it can help promote accommodative moves and consolidate consociational deals in ways that the region-wide party-list systems and the AV in single-member district cannot.21 There has been some empirical confirmation of the merits of STV since the Agreement was made. Some ‘vote pooling’ occurred within the first Assembly elections, as we can surmise, from actual counts and from an opinion poll (Mitchell 2001; Evans and O’Leary 2000). Some of the SDLP’s and Sinn Féin’s voters found it rational to reward the UUP for making the Agreement by giving its candidates their lower-order preferences. Likewise, in 1998, some of the UUP’s and the PUP’s voters transferred their lower-order preferences to pro-Agreement candidates within their own bloc, among the others and among nationalists. Of course, large-scale transfers took place among the ‘No’ unionists and between ‘Yes’ unionists and ‘No’ unionists. Within-bloc rewards for moderation also occurred: Sinn Féin won lower-order preferences from SDLP voters, and the PUP had candidates elected on the basis of transfers from other candidates. Table 4 reports the outcome of the June 1998 elections to the first Assembly, and the November 2003 elections – which may eventually produce a functioning second Assembly. The proportionality of the results is evident with respect both to blocs and to parties. In 1998, the deviations in seats won compared with the first preference vote primarily benefited the pro-Agreement parties; in 2003, the deviations primarily benefited the UUP and the Alliance, but not the nationalist pro-Agreement parties. In both 1998 and 2003, the UUP was the principal beneficiary of the transfer of lower-order preferences among the large parties, which in 1998 took its seat share (25.9%) significantly above its first-preference vote-share (21.3%). Its lower-order transfers came from voters who voted ‘No’ as well as those who voted ‘Yes’ to the Agreement, as was evident in ballot papers and a survey (Mitchell 2001; Evans and O’Leary 2000). In 1998, the Women’s Coalition was the greatest beneficiary of lower-order preferences, winning two seats despite a very low first-preference vote. In 2003, the Alliance party kept its six seats with almost half the first-preference vote it had won in 1998. The net transfers by voters to the pro-Agreement candidates, though not dramatic, helped perform one very im21

The Northern Ireland Act 1998 and the Northern Ireland (Elections) Act 1998 opened one novelty in the practice of STV in Ireland. Both acts left it open to the Secretary of State to determine the method of filling vacancies: this may be done through by-elections, substitutes, or whichever method the Secretary of State deems fit. By-elections are anomalous in a PR system (Gallagher 1987). A candidate who wins the last seat in a six-member constituency and who subsequently resigns or dies is unlikely to be replaced by a candidate of the same party or persuasion in a by-election, which becomes the equivalent of the alternative vote in a single-member constituency. The Northern Ireland Assembly (Elections) Order of 1998 has provided for a system of alternates or of personally nominated substitutes with a provision for by-elections if the alternates system fails to provide a substitute. The disproportionality possibly induced by by-elections, with its consequent ramifications for the numbers of registered nationalists and unionists and the cross-community rules, needed to be engineered out of the settlement, and it was a good sign that the parties cooperated with this concern in mind.

4  Complex Power-sharing in and over Northern Ireland

portant task in 1998. They converted a bare ‘anti-Agreement’ majority of the first preference vote (25.5%) within the unionist bloc of voters into a bare ‘pro-Agreement’ majority (27.7%) among seats won by unionists, a result that may have been essential for the Agreement’s (partial) stabilization. In 2003, transfers may have dampened the swing to anti-Agreement unionists, but confirmation of that possibility awaits a full count by researchers. Co-ordination failures are evident also: in 2003, the failure of Sinn Fein voters to transfer to the SDLP in West Belfast was probably decisive in letting the DUP win a seat. Table 4 Party Performances in the 1998 and 2003 Elections to the Northern Ireland Assembly Party

First Preference Vote % 1998 2003

Seats % (Number) 1998 2003

SDLP Social Democratic & Labour Party

22.0



17.0

22.2 (24) 16.7 (18)

SF Sinn Féin



17.7



23.5

16.7 (18)

Other nationalists



0.1



UUP Ulster Unionist Party



21.0



22.7

PUP Progressive Unionist Party



2.5



1.2

UDP Ulster Democratic Party



1.2

–

– (–)

– (–)

Other ‘Yes’ unionists



0.3

–

– (–)

– (–)

DUP Democratic Unionist Party



18.0



25.7

UKUP UK Unionist Party



4.5



0.8



4.6 (5)

Other ‘No’ unionists



3.0



0.5+

2.8 (3)

APNI Alliance Party



6.4



3.7



5.5 (6)

NIWC Women’s Coalition



1.7



0.8



1.9 (2)

Other others



1.3



3.5

0.3*

22.2 (24)

– (–)

– (–)

25.9 (28) 25.0 (27)

1.9 (2)



0.9 (1)

18.5 (20) 27.7 (30)

– (–)



0.9 (1)



5.5 (6)

– (–)

– (–)

0.9 (1)

Source: O’Leary 1999e updated). * Socialist Environmental Alliance candidate McCann counted as an independent nationalist. + Conservatives counted as ‘No Unionists’.

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c Proportional Recruitment and Representativeness in the Public Sector The Agreement accepted past and future measures to promote fair employment and affirmative action in the public sector that are likely to eventually ensure a fully representative and non-discriminatory civil service. The civil service and the rest of the public sector have already been subjected to fair employment legislation, but in the entirety of posts in the public sector the principles of representativeness or proportionality are to be applied, either in the form of party representatives holding others to account or of ascriptively representative bureaucracies and public services. There was one initial exception: the judiciary. That significant omission was eventually rectified by the report of the Criminal Justice Review that commended a judicial appointments commission to ensure a more representative judiciary, a proposal that is being given legislative effect in 2003–2004.22 Most significantly, the Agreement envisaged a representative police force. Democratic consociation cannot exist where those of military age in one community are almost the sole recruitment pool for policing all of those in another community – a trait characteristic of control systems (Lustick 1979). Over 300 police officers were killed after 1969 – for whom there is significant sympathy, especially amongst unionists. But nationalists remember that the outbreak of armed conflict in 1969 was partly caused by an unreformed police responsible for seven of the first eight deaths. Policing was so controversial that the parties to the Agreement could not concur on future arrangements, and it was not made a devolved function (McGarry and O’Leary 1999). They did agree the terms of reference of a Commission, eventually chaired by Christopher Patten. The Report of the Independent Commission – the ‘Patten Report’ – published in September 1999 fulfilled the Commission’s mandate under the Agreement (Patten 1999; O’Leary 1999b). Eight criteria were explicitly and implicitly mandated in the Commission’s terms of reference. Policing arrangements were to be impartial; representative; free from partisan political control; efficient and effective; infused with a human rights culture; decentralized; democratically accountable “at all levels”; and consistent with the Agreement. The Commission’s Report was a thorough, careful, and imaginative compromise between unionists who maintained that the existing RUC met the terms of reference of the Agreement and those nationalists, especially republicans, who maintained that its human rights record required its disbanding. The Report declared that responsibility for policing should be shared by citizens and their representatives. This logic was apparent in the title and composition of the recommended Policing Board – bringing together ten elected politi22

The Agreement’s terms of reference for the Criminal Justice Review incorporated the provision that “the arrangements for making appointments to the judiciary and magistracy, and safeguards for protecting their independence.” The commissioners were able to use this provision to commend an appointments commission and a judiciary “reflective of Northern Ireland society.” Its key proposals are dependent on the devolution of the administration of justice to the Assembly and Executive (Livingstone 2001).

4  Complex Power-sharing in and over Northern Ireland

cians, drawn from the parties that comprise the new Executive according to the d’Hondt rule, with nine appointed members representative of civil society, “business, trade unions, voluntary organizations, community groups and the legal profession” to be nominated by the FM and DFM. The elected members were not to be ministerial office-holders. The Board was to be representative, but at one remove from direct executive power. The Report intended to let police managers manage, but to hold them ex post facto accountable for their implementation of the Board’s general policing policy, and to enhance the audit and investigative capacities of the Board. It recommended giving directly elected local governments opportunities to influence the Board though their own District Policing Partnership Boards. The Report displayed coherent communitarian, democratic and pluralist ideas, and was informed by rigourous management practices. Segmental policing, in which each community would be policed by ‘its own’, was not considered, nor seriously proposed. Instead, a representative but integrated service was advocated, appropriate for a region with a high combination of both territorial segregation and mixing. The Commission proposed recruiting Catholics and non-Catholics in a 50:50 ratio from the pool of qualified candidates for the next decade. This matches the population ratios in the younger age cohorts. Given early and scheduled retirements of serving officers, this policy would ensure that 30% of the service would be of Catholic origin after ten years and between 17% and 19% within four years – above the critical mass claimed essential to change the police’s character. This is a slower pace of change than some advocated (McGarry and O’Leary 1999). The Commission proposed feasible policing arrangements consistent with the spirit of the Agreement, including on recommendations for better-structured cross-border cooperation with the Garda Síochana in the Republic, including secondments. Significantly, the Report’s recommendations mostly did not depend upon the Agreement’s institutions for their implementation. The commissioners explicitly recommended most of their changes, come what may. However, the Police Bill presented as the implementation of the Report to the Westminster parliament in the spring of 2000 by Secretary of State Mandelson was an evisceration of the Commission’s work. It was condemned as such by the SDLP, Sinn Féin, the Women’s Coalition, the Catholic Church, human rights organizations (such as the Committee on the Administration of Justice), the Irish government, the US House of Representatives (H. Res 447, 106th Congress), and Irish-Americans, including President Clinton (O’Leary 2000e; 2000c; 2000b). The veracity of the critics’ complaints can be demonstrated by comparing some of Patten’s recommendations with the original bill 1. Names and Symbols. Patten recommended a neutral name, the ‘Northern Ireland Police Service’. The Royal Ulster Constabulary’s non-neutral name was to go. Patten recommended that the display of the Union flag and the portrait of the Queen at police stations should also go. Symbols should be ‘free from association with the British or Irish states’. The original police bill, by contrast, proposed that the Secretary of State have the power to decide on the issues of names and emblems.

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2.

3.

4.

5.

6.

Affirmative action. Even critics of affirmative action recognized the need to correct the existing imbalance in which over 90% of the police are local cultural Protestants. But the original bill reduced the period in which the police would be recruited on a 50:50 ratio of cultural Catholics and cultural Protestants from ten years to three, requiring the Secretary of State to make any extension, and was silent on ‘aggregation’, the proposed policy for shortfalls in recruitment of suitably qualified cultural Catholics. Policing Board and Political Control. Patten proposed a Policing Board consisting of ten MLAs from political parties in the Executive allocated according to the d’Hondt process, and nine members nominated by the FM and DFM. These recommendations guaranteed a politically representative board in which no bloc would have partisan control. The original bill required that the Board should operate according to a weighted majority when recommending an inquiry, tantamount to giving unionist or unionist-nominated members partisan political control. Efficiency and downsizing. Patten recommended downsizing the service, advocated a strong Board empowered to set performance targets, and enabling local District Policing Partnership Boards to market-test police effectiveness. The original bill empowered the Secretary of State, not the Board, to set performance targets, made no provision for disbanding the police reserve, and deflated the proposed District Policing Partnership Boards. Rights Protection. Patten proposed that new and serving officers should have human rights training and re-training, and observe new codes of practice. In addition to the European Convention on Human Rights, due to become part of UK domestic law, the Commission held out international norms as benchmarks (Patten 1999: para 5.17). Patten’s proposals for normalization – through merging the Special Branch into Criminal Investigations – and demilitarization met the Agreement’s human rights objectives. The original bill, by contrast, confined the new oath to new officers. No standards of rights higher than those in the European Convention were to be incorporated into training, and Responsibility for a Code of Ethics was left with the Chief Constable. Patten’s proposed requirement that the oath of service “respect the traditions and beliefs of people” was excluded. Normalization and demilitarization procedures were left unclear in the bill and the implementation plan. Decentralization. Patten envisaged enabling local governments to influence the Policing Board through their own District Policing Partnership Boards and giving the latter powers “to purchase additional services from the police or statutory agencies, or from the private sector,” and matching police internal management units to local government districts. The original bill, by contrast, maintained or strengthened centralization: the Secretary of State obtained powers that Patten proposed for the FM and DFM and the Board, and powers to issue instructions to District Policing Partnership Boards; and neither the bill nor the implementation plan implemented Patten’s proposed experiment in community policing (Hillyard 2000).

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7.

Accountability. Patten envisaged a strong, independent and powerful Board to replace the discredited Police Authority (Patten 1999: para 6.23). The police would have “operational responsibility” but be held to account and required to interact with the Human Rights Commission, the Ombudsman, and the Equality Commission. The Bill watered down Patten’s proposals, empowering the Secretary of State to oversee and veto the Board, and allowing the Chief Constable to refuse to respond to reasonable requests from the Board, and preventing the Board from making inquiries into past misconduct.

The radical discrepancy between the Report and the original Police bill stemmed from Northern Ireland Office’s officials drafting the bill under Mandelson’s supervision. They took the views of the RUC and British security specialists more seriously than those of the Patten Commissioners, treating theirs as a nationalist report that they had to modify as benign mediators. They simply left aside what they found unacceptable, premature, or likely to cause difficulties for pro-Agreement unionists or the RUC. The original bill suggested that the UK government was determined to avoid the police being subject to rigourous democratic accountability, was deeply distrustful of the capacity of the local parties to manage policing at any level, and, lastly, concerned to minimize the difficulties that the implementation of Patten would occasion for Trimble’s party. Under enraged nationalist pressure, Mandelson beat a partial retreat. The UK government accepted more than sixty SDLP-driven amendments to bring the bill more into line with Patten’s Report. The quota for the recruitment of cultural Catholics became better protected. The Board was given power over the setting of short-run objectives, and final responsibility for the code of ethics. Consultation procedures involving the Ombudsman and the Equality Commission were strengthened, and the FM and DFM were to be consulted over the appointment of non-party members to the Board. The weighted majority provisions for an inquiry by the Board went. While the Police (Northern Ireland) Act 2000 fell significantly short of ‘the whole Patten’, it rectified some of the original bill’s more overt deviations. But, on the two crucial issues of symbolic neutrality and police accountability, vital for a new beginning, it remained at odds with Patten’s explicit recommendations. The Police Act, because of a government decision to accept an amendment tabled by the UUP, styles the service ‘The Police Service of Northern Ireland (incorporating the Royal Ulster Constabulary)’, surely one of the longest names of a police service in the English-speaking world. The Secretary of State promised an amendment to define the name ‘for operational purposes’, and to ensure that the full title would rarely be used, but broke this commitment. Mandelson declared he was following Patten’s wishes that the new service be connected to the old and avoid suggestions of disbanding, but Patten had proposed an entirely new and fresh name, and proposed linkages between the old and new services through police memorials, and not by the renaming adopted by the government. Patten unambiguously recommended that the police’s new badge and emblems be free of association with the British or Irish states,

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and that the Union flag should not fly from police buildings. The Act postponed these matters. The UK government ‘passed the parcel’ to the local parties to reach agreement while providing reassuring but vague words in Hansard. Since Mandelson had already ruled that only the Union Jack, albeit only on specified days, should fly over the buildings of the devolved administration, nationalists lacked faith that he would deliver on cultural neutrality and impartiality. Why have these symbolic issues mattered? Because they do in ethno-national conflicts, and because the best strategy to win widespread acceptance for police reform would have been to confirm Patten. Full renaming and symbolic neutrality spell out a double message: that the new police are to be everyone’s, and the new police are no longer to be, as they were, primarily the unionists’ police. To achieve effective accountability, Patten recommended an Oversight Commissioner to “supervise the implementation of our recommendations.” The UK government – under pressure – put the commissioner’s office on a statutory basis, which it did not intend to do originally, but confined his role to overseeing changes “decided by the Government.” Patten had recommended a Board that could initiate inquiries into police conduct and practices. The Police Act 2000 prevented the Board from inquiring into any act or omission arising before the eventual act applies, tantamount to an undeclared amnesty for past police misconduct. Many have no objections to an open amnesty, especially as paramilitaries have received de facto amnesties (see below), but the government’s chosen method appeared driven by concerns to avoid state officials being held to account for their responsibilities for the last thirty years of conflict (Ní Aoláin 2000). Additionally, the Secretary of State has the authority to approve or veto the person appointed to conduct any present or future inquiry (clause 58(9)). Whereas Patten recommended that the Ombudsman should have significant powers (Patten 1999: para 6.42) and “exercise the right to investigate and comment on police policies and practices,” in the Act, the Ombudsman may make reports but not investigate – so it is not a crime to obstruct her work. The Ombudsman was additionally restricted in her retrospective powers (clause 62), again circumscribing the police’s accountability for past misconduct. The proposed arrangements sealed off avenues through which the police might be held to account for misconduct – for example, in colluding with loyalist paramilitaries or covering up assassinations – and appeared recipes for leaving the police outside the effective ambit of the law. Failure to deliver fully on police reform in the promised manner heralded possible disaster for the Agreement. The SDLP, Sinn Féin, and the Catholic Church were unlikely to recommend that their constituents consider joining the police, and considered boycotting the Policing Board and District Policing Partnership Boards. The mismanagement of Patten Report’s meant that in 2000 the pressure eased on Sinn Féin to require the IRA to go further in decommissioning than arrangements for international inspections of its arms dumps. The argument was made that the UK government had reneged on a fundamental part of the Agreement, so the IRA was under no obligation to start disarming. In turn, this led to a renewal of unionist calls for the exclusion of Sinn Féin from ministerial office, leading to Trimble’s second resignation threat in the spring of 2001.

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Mandelson’s conduct was partly motivated by the need to help Trimble and the UUP, in a precarious and divided condition, and fearful of being outflanked by the DUP on a critical issue. But while ‘Saving Trimble’ may account for the tampering with Patten’s proposals on symbolic matters, it hardly accounts for the blocking of the efforts to have a more accountable service. The decision to dilute the content and the pace of Patten’s recommendations meant that policing reform, a core dimension of the Agreement, become a serious source of continuing antagonism, and an excuse for delays on decommissioning. It was only later that the UK would pedal back and come very close to the full implementation of the Patten Report, a task rendered easier by Mandelson’s departure from office. 5 Communal Autonomy and Equality Consociations seek, through bargaining, to manage differences equally, justly, civilly. Liberal consociations do not prevent voluntary integration or assimilation, and protect those who wish to have their identities counted differently or not as collective identities. The Agreement is such a liberal consociation. The Agreement left in place the arrangements for primary and secondary schooling in Northern Ireland in which Catholic, Protestant, and integrated schools are to be equally funded. In the past, Catholic schools received less capital funding, and before that had to raise a significant proportion of their own staffing resources (McGrath 2000). In this respect, Northern Ireland is now consociational but liberal: one can avoid Catholic and Protestant schools. Only the very small minorities of non-Christian religious believers, amounting to less than 1% of the population, lack full and equal funding for culturally distinctive schools. The Agreement made new provisions for the educational use, protection, and public use of the Irish language, along the lines used for Welsh within Wales, thereby adding linguistic to the educational protections of Irish nationalist culture. It made analogous provisions for ‘Ulster Scots’. Most significantly, the Agreement completes the equalization of both major communities as national communities, that is, as British and Irish communities, and not just, as is so misleadingly emphasized, as Protestants and Catholics. The opening section of the Agreement’s ‘Constitutional Issues’ specifies that: Whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions, and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos and aspirations of both communities (Government of the United Kingdom n.d.: ‘Constitutional Issues’, 1. (v), p. 2).

Two words merit isolation here, viz, ‘ethos’ –“the characteristic spirit or attitudes of a community, people, or system,” and ‘aspirations,’ “strong desires to achieve an end; ambitions” (definitions from the Concise Oxford English Dictionary, 8th Edi-

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tion). Judges and others must, in time, treat these words as requiring them to interpret the Agreement as respecting the respective communities’ national identities, core parts of their respective ethos and aspirations, provisions that go beyond those found in the European Framework Convention on National Minorities. The European Convention on Human Rights, now incorporated in the UK’s domestic law, is weak on the protection of collective rights, national minority rights, ethnic rights, and equality rights. The new Northern Ireland Human Rights Commission (NIHRC) was tasked with advising on the defining of Westminster legislation supplementary to the Convention “to reflect the particular circumstances of Northern Ireland” (Government of the United Kingdom, n.d.: ‘Rights Safeguards and Equality of Opportunity’, 4: 16-17). Such provisions must protect both national groupings and individuals, and ensure that none of the institutions of the Agreement or the proposals of its commissions acting directly under its terms of reference are rendered invalid by such provisions (O’Leary 2001g). The Agreement, sensibly interpreted, effectively makes Northern Ireland binational (even though it did not make it bi-statal, i.e., under the joint sovereignty of both states). It has opened up the prospect of a fascinating and difficult jurisprudence, not least in the regulation of the use of flags and emblems, and of public parades and marches. So far, the courts, with no nationalists on the most senior Northern Ireland bench, have chosen to be conservative on this matter, but this stance will not be sustainable over time – especially if the courts become more widely representative. The Agreement did not neglect the non-national dimensions of local politics, nor does it exclude the ‘others’ from effective political participation. All aspects of unjustified social equalities, as well as inequalities between the national communities, are recognized in the text of the Agreement and given some means of institutional redress and monitoring. The Agreement addresses national equality, the allegiances to the Irish and British nations, and social equality, i.e., dimensions that differentiate groups and individuals in Northern Ireland; including religion, race, ethnic affiliation, sex, and sexuality. Equality issues, be they national or social, are not left exclusively to the local parties to manage and negotiate, which might be a recipe for stalemate. Instead, under the Agreement and Section 75 of the Northern Ireland Act 1998, the UK government has created a new statutory obligation on public authorities. They must carry out all their functions to promote equality of opportunity in relation to people’s religious background and political opinions, and with respect to their gender, race, disabilities, age, marital status, and sexual orientation. This commitment “mainstreams equality” (McCrudden 1999a; 1999b). The new Human Rights Commission is charged with a role that is extended and enhanced, compared with its predecessor, though it is still arguably deficient in resources. Its role includes monitoring, the power to instigate litigation, as well as drafting the elements of a tailor-made local bill of rights. In its consultations and deliberations, the Commission has “‘established working groups in … social and economic rights; children and young people; criminal justice; cultural rights and community identity; language; victims’ rights; equality; education; and implementation” (Harvey 2001: 129).

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6 Minority Veto Rights The final dimension of a full consociation is the protection of minorities through explicit or tacit veto rights. The Agreement achieved this through the Assembly’s design, through the prospect of a new human rights regime, through a Civic Forum, and through enabling political appeals to both the UK and the Irish governments. The Assembly has procedures (parallel consent, weighted majority, and the petition) that protect nationalists from unionist dominance. Indeed, they do so in such a comprehensive manner that the rules designed to protect the nationalist minority have been and may be used by hardline unionist opponents of the Agreement to attempt to wreck it. The ‘others’ are less well protected in the Assembly, as they can be out-voted by a simple majority or by any nationalistunionist super-majority, and their numbers leave them well short of being able to trigger a petition. Since the ‘others’ have not been at the heart of the conflict, it is not surprising if they are not at the heart of its pacts – though it is not accurate to claim that they are excluded. If they win sufficient electoral mandates their power will be enhanced accordingly.23 In the courts, the others, as well as disaffected nationalists and unionists, will have means to redress breaches of their human and collective rights. The package of collective rights that the NIHRC has recommended for legislative enactment by Westminster has followed recommendations to include proportional electoral rights (O’Leary 2001g), but the rest of their proposals in controversial areas are largely modelled on the European Framework Convention – less than that entailed by the plain words of the Agreement on ‘ethos’ and ‘aspirations’. Whether the Westminster parliament will enact legislation according to its counsel, improve upon it, or worsen it, remains to be seen. The implications for the rest of the UK may weigh heavily on the Westminster government. It is still likely that the new policing arrangements will be infused with a much better rights culture, and that the absence of legal personnel within the RUC with expertise in human rights will be remedied. The composition of the local judiciary who will supervise the new systems of rights-protection, however they are fleshed out, is obviously a key issue. The proposal for a new judicial appointments commission seems likely to achieve this goal. Non-national minorities were not forgotten or excluded. Mechanisms have been established to ensure that ‘others’, outside the local ethno-national blocs, will be able to express their voices and ensure that the new ‘rights culture’ does not exclude them: in the Civic Forum created in the North and inaugurated on 9 October 2000, with a prospective southern counterpart; and through the Inter‑governmental Conference of the British and Irish governments.

23

John McGarry and I argue for changes to the voting rules to make ‘designation’ less obviously favourable to unionists and nationalists, and fairer to the others (McGarry and O’Leary 2004b).

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C

A National Self-determination Settlement and an Implicitly Autonomous Federacy

Complex power-sharing is not exhausted by the preceding description and analysis of the elaborate consociational provisions in the Agreement. It also directly and crucially addressed the core national self-determination dispute. 1 Recognition The Agreement was based on multiple forms of recognition. It was an act of recognition between states and national communities. The people of Ireland, through a referendum that changed their constitution, recognized Northern Ireland’s status as part of the United Kingdom, subject to the implementation of the Agreement, while continuing to express their firm will to see Irish unity achieved through the future majority consent of both jurisdictions. The sovereign governments of each state recognized each other’s official names for the first time, ‘Ireland’ and the ‘United Kingdom of Great Britain and Northern Ireland’, respectively. The United Kingdom has recognized, in a treaty, the right of the people of Ireland, meaning the whole island, to exercise their self-determination, albeit conjointly and severally as ‘North’ and ‘South’, to bring about a united Ireland if that is their wish. It has confirmed that Northern Ireland has the right to secede, by majority consent, to unify with Ireland. Ireland has recognized unionists’ British political identity. The UK has recognized Irish northern nationalists as a national minority, not simply as a cultural or religious minority, and as part of a possible future Irish national majority. The two states have, in effect, recognized the paramilitaries that have organized ceasefires as political agencies expressing the violent antagonism of the previously unresolved national self-determination dispute. They have not required them to surrender themselves or their weapons to their respective authorities, and have organized the release of their respective prisoners on the assurances of their organizations’ ceasefires. Unionists who made the Agreement recognized nationalists as nationalists, not simply as Catholics or as the minority. Nationalists recognized unionists as unionists, and not just as Protestants. Nationalists and unionists have recognized ‘others’, who are neither nationalists nor unionists. If ethno-nationalist conflicts are rooted in identity politics then this one has at last moved to the multilateral and institutional recognition of the identities at stake. 2 Constitutional Change: The Foundations of a Federacy In the Agreement, both governments agreed to balanced constitutional change. That required Ireland to modify Articles 2 and 3 of its Constitution, which made a claim of sovereign right over all of Ireland, irrespective of the wishes of the local majority in Northern Ireland. It reciprocally required that the UK government repeal the Government of Ireland Act 1920 – which had violated the right of the people of Ireland to self-determination – while affirming Northern Ireland’s place as part of the UK as long as a majority so wished.

4  Complex Power-sharing in and over Northern Ireland

UK commentators and unionists generally interpret the Agreement merely as a form of ‘devolution within a decentralized unitary state’. Arguably, this is quite wrong. Arguably, the Agreement means that two distinct unions make up the UK: the Union of Great Britain and the Union of Great Britain and Northern Ireland. The Northern Ireland Act 1998 created an open-ended mechanism for the Northern Ireland Assembly, by its consent, to expand its law-making autonomy from the rest of the UK, albeit with the consent of the Secretary of State and the approval of Westminster. No such open-ended provision was granted to the Scottish Parliament or the Welsh Assembly. More importantly, the Agreement, unlike Scottish and Welsh devolution, was incorporated in a treaty between two states, based on the UK’s and the makers of the Agreement’s formal recognition of Irish self-determination – the right of: [T]he people of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland (Government of the United Kingdom, n.d.: ‘Constitutional Issues’, 1 (ii), p. 2).

The UK officially acknowledged that Northern Ireland has the right to join the Republic, on the basis of a local referendum, and recognized, in a subsequent treaty, the authority of Irish national self-determination throughout the island of Ireland. The critical constitutional question is this: in the meantime, must the United Kingdom of Great Britain and Northern Ireland be understood as a state in which Westminster’s sovereignty is absolute? Arguably not. The UK’s treaty signature cannot simply be construed as meaning that Westminster’s sovereignty overrides the Agreement itself. The Agreement’s institutions were brought into being by the will of the people of Ireland, North and South, in concurrent referendums, and not just by the people of Northern Ireland. The functioning of the Assembly was made interdependent with the functioning of the North-South Ministerial Council, a cross-border and all-Ireland body, which is in the joint and co-equal jurisdiction of the Irish government, by treaty. So, the UK’s relationship to Northern Ireland, as long as it remains within the UK, and as long as the Agreement is the basis of that membership, should be read as having an explicitly federal character. More precisely, the makers of the Agreement were implicitly making Northern Ireland into what Elazar (1987) terms a federacy. A federacy is an autonomous unit of government whose relationship with its host state is federal, even if the rest of the state is organized in a unitary fashion. A federal relationship exists when there are at least two units of government over the same territory and when neither can unilaterally alter the constitutional capacities of the other. This definition is a necessary element of a federal system. A federation normally has multiple federated units that are co-sovereign with the federal government throughout most of the territory of the state. The notion of a federacy, by contrast, emphasizes that any system of constitutionally entrenched autonomy,

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entrenched in a manner that constrains the central government, makes the relationship between that region and the centre functionally equivalent to a federal relationship. It is my contention that the Agreement makes Northern Ireland such a federacy, though not officially by that name, as long as it remains within the UK. The Westminster parliament and executive cannot, except through breaking its treaty obligations, and except through denying Irish self-determination, and the referendum process, exercise power in Northern Ireland inconsistently with the Agreement. Northern Ireland’s membership of the Union of Great Britain and Northern Ireland, in plain language, is subject to the Agreement, and not to the uninhibited sovereignty of Westminster. Westminster’s unconstrained authority applies solely to explicitly excepted and reserved functions. Any changes in the exercise or division of competencies envisaged by the Agreement requires due Review, by the two governments and the Assembly parties, as provided under the Agreement, and appropriate legal processes in both the Assembly and Westminster.24 This discourse is not merely academic. Its substance became critical when the UK parliament decided to arrogate to itself the power to suspend the institutions of the Agreement in 2000. 3 The First Moment of Suspension In late 1999 and early 2000, to obtain the support of his party’s Ulster Unionist Council, Trimble offered his party chairman a post-dated resignation letter, leaving his position as First Minister, to become operative if the IRA did not start decommissioning within his own specified timetable. The IRA did not deliver on this unilateral deadline, at least not in the way that Secretary of State Mandelson believed was required to stop Trimble making effective his resignation threat – though the IRA did appear to clarify that decommissioning would occur. In February 2000, Mandelson obtained emergency statutory powers to suspend the Assembly and Executive and did so at 5.00 p.m. on 11 February 2000. In doing so, he acted in classic Diceyan fashion, using the doctrine of parliamentary sovereignty to arrogate to his ministry a power that had not been negotiated in the making of the Agreement or granted in its legislative enactment in the UK. The UK government’s officials knew that the power of suspension would breach the formal treaty incorporating the Agreement, because in the summer of 1999, when both governments contemplated a suspension mechanism, they proposed that the treaty that was about to be signed by the two governments, which incorporated the Belfast Agreement, should be amended to make it compatible with suspension. No such amendment was made. The Secretary of State’s jus24 Intra-UK federalizing processes would have been enhanced if the UK and Northern Irish courts were to have treated Northern Ireland’s relationships to Westminster as akin to those of the former dominions, which had a federal character, as they did in the period of the Stormont Parliament (1921–1972). But legal colleagues advise me that the UK’s legislative enactment of the Agreement may have modified the pertinent precedents in this previous jurisprudence by changing the nature of the ‘vires’ test that the courts will use to deal with jurisdictional disputes.

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tification for suspension was that it was necessary to save Trimble: his threat to resign would have become operative in an environment in which ‘Yes’ unionists no longer commanded an absolute majority of the registered unionists in the Assembly. Therefore, it was feared, Trimble could not have been resurrected as First Minister if he did resign. This reasoning was partial. The Assembly, by weighted majority, was entitled to pass any measure to amend its current rules for electing the dual premiers and to send this measure, after an agreed review of the Agreement, to Westminster for statutory ratification. It could, for instance, propose that when deadlocked under the parallel consent procedure the Assembly adopt the weighted majority procedure for electing the premiers. So there was a mechanism, through review and legal change within the terms and institutions of the Agreement, under which Trimble could have regained the position of First Minister. And if not, there could have been fresh Assembly elections (the most obvious intra-Agreement mechanism for resolving crises in agreeing the premiers). Mandelson’s justification was widely criticized,25 and in Irish eyes the suspension was regarded as an unconstitutional and partisan act. The suspensory power had not been endorsed with cross-community consent through the negotiation of the Agreement, or in the referendums, or in the UK’s legislative enactment of the Agreement. Neither the Agreement, nor the Mitchell Review of the Agreement that took place in late 1999, had required Sinn Féin to deliver decommissioning by the IRA by a deadline set by the leader of the UUP. The then formally agreed deadline for decommissioning required all political parties to use their best endeavours to achieve full decommissioning by 22 May 2000. One passage of the Agreement referred to procedures for review if difficulties arose across the range of institutions established on the entering into force of the international treaty, the British-Irish Agreement: If difficulties arise which require remedial action across the range of institutions, or otherwise require amendment of the British-Irish Agreement or relevant legislation, the process of review will fall to the two Governments in consultation with the parties in the Assembly. Each Government will be responsible for action in its own jurisdiction (Government of the United Kingdom n.d. 1998; ‘Review Procedures Following Implementation, 7, p. 26’, emphasis added).

The italicized passages, read in conjunction with the whole Agreement, suggest that the UK government was obliged to consult the parties in the Assembly and the Irish government over obtaining any power of suspension, and that any remedial action required the joint support of the two governments, especially as regards their treaty. That did not happen. That each government would be “responsible for action in its own jurisdiction” did not mean that the Westminster parliament had unilateral discretion to alter, amend, suspend, or abolish the institutions of the Agreement; it merely meant that for agreed remedial action there 25

For a critical dissection see ‘The Blame Game’, Spotlight BBC Northern Ireland, produced by Justin O’Brien, reporter Andy Davies, 22 February 2000.

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would be parallel legislative procedures. For these reasons, the Irish government did not officially recognize the suspension. The suspension had at least three messages. First, it meant that every aspect of the Agreement was vulnerable to Westminster’s sovereignty. Its institutions, its confidence-building measures, its commissions, the promise that Irish unification will take place if there is majority consent for it in both parts of Ireland, are all revisable by the current UK parliament, and any future parliament, and parliament’s Secretaries of State, irrespective of international law or the solemn promises made by UK negotiators. Even had the Secretary of State’s motives been entirely benign – and that has been questioned – his decision to obtain the power of suspension destroyed the assumptions of nearly a decade of negotiation. Second, the suspension suggested to some official Irish negotiators, and northern nationalists, the necessity in future negotiations of both achieving the repeal of the Suspension Act and entrenching Northern Ireland’s status as a ‘federacy’, perhaps in the same manner as the UK’s courts are instructed to make European law supreme over law(s) made by the Westminster parliament, through full domestic incorporation and entrenchment of the relevant treaty. Third, unionists may one day rue the constitutional consequences of the Northern Ireland Act 2000, the Suspension Act. What Westminster did on unionists’ behalf it may take from them tomorrow – including membership of the Union. The suspension act means that in UK public law the Union does not rest on the consent of its component parts. Westminster, despite the referendums, is free, according to its constitutional norms, to modify the Union in any way it likes: for example, through full-scale joint sovereignty over Northern Ireland with the Irish government or through expelling Northern Ireland from its jurisdiction. Therefore, both in logic and for political reasons, the implementation of the Agreement requires the termination of the suspension power, i.e., the full repeal of the Suspension Act 2000 (O’Leary 2001a). Without that measure, the Agreement cannot be constitutionalized consistently with Irish national self-determination. The Joint Declaration of May 2003 by the UK and Irish governments in which the repeal of the Suspension Act is conditionally promised would seem to suggest that, if successfully implemented, Northern Ireland’s federacy status may be reaffirmed. The first suspension did not completely save Trimble from conflict with some of his party activists, 43% of whom voted for a stalking horse to replace him, the Reverend Martin Smyth MP, a hardliner and former Grand Master of the Orange Lodge. Trimble remained leader of his party, but bound by a mandate for reformation of the Executive that neither the UK government nor republicans seemed likely to deliver. Yet, in May 2000, negotiations between the proAgreement parties and the two governments produced a formula that appeared to break the deadlock. Republicans promised to deliver a ‘confidence-building measure’, which involved the IRA supervising international inspections of the IRA’s arms dumps, the UK government promised to deliver fully on police reform and demilitarization, and the UUP and the UK government agreed respectively to withdraw Trimble’s resignation and to end the suspension. But, as we shall see, the salience of the suspensory power would recur.

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D

Confederalizing and Federalizing Elements of the Agreement

The Agreement was externally confederalizing and federalizing. These assertions rest on these definitions: confederal relations exist when political units voluntarily delegate powers and functions to bodies that can exercise power across their jurisdictions; and federal relationships exist when: (1) there are at least two separate tiers of government over the same territory; and (2) neither tier can unilaterally alter the constitutional capacities of the other. 1 The All-Ireland Confederal Relationship The first confederal relationship is all-Ireland in nature: the North-South Ministerial Council (NSMC). Finally brought on line on the same day as power was devolved to the Northern Ireland Assembly and Executive, 2 December 1999, it brings together those with executive responsibilities in Northern Ireland and in the Republic. Its first plenary meeting was held in Armagh on 12 December 1999; the DUP Ministers did not attend. The NSMC was the product of a bargain. Nationalists were concerned that if the Assembly could outlast the NSMC, it would provide incentives for unionists to undermine the latter. Unionists, by contrast, were worried that, if the NSMC could survive the destruction of the Assembly, nationalists would seek to bring this scenario about. The Agreement was therefore a tightly written contract with penalty clauses. Internal consociation and external confederalism were welded together: the Assembly and the NSMC were made ‘mutually interdependent’; one cannot function without the other. Unionists were unable to destroy the NSMC while retaining the Assembly, and nationalists were not able to destroy the Assembly while keeping the NSMC. The NSMC linked northern nationalists to their preferred nation-state, and is one means through which nationalists hope to persuade unionists of the attractions of Irish unification. The Irish government successfully recommended a change to its constitution to ensure that the NSMC and its delegated implementation bodies would be able to exercise island-wide jurisdiction in those functional activities where unionists were willing to cooperate. The NSMC functions much like the Council of Ministers in the European Union, with ministers having considerable discretion to reach decisions but remaining ultimately accountable to their respective legislatures. The NSMC meets in plenary format twice a year and in smaller groups to discuss specific sectors on a ‘regular and frequent basis’. Provision exists for the Council to meet to discuss matters that cut across sectors and to resolve disagreements. In addition, the Agreement provided for cross-border or all-island ‘implementation’ bodies. The Agreement provided an annex that listed twelve possible areas for implementation26 but left it open for others to be considered. 26 These were: agriculture (animal and plant health); education (teacher qualifications and exchanges); transport (strategic planning); environment (protection, pollution, water quality, waste management); waterways; social security/social welfare (entitlements of cross-border workers and fraud control); tourism (promotion, marketing,

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The scope and powers of these institutions was somewhat open-ended. The Agreement, however, required a meaningful Council. It stated that the Council ‘will’ – not ‘may’ – identify at least six matters where ‘existing bodies’ will be the appropriate mechanisms for cooperation within each separate jurisdiction, and at least six matters where cooperation will take place through cross-border or all-island implementation bodies. The latter were subsequently agreed to be: inland waterways, food safety, trade and business development, special EU programmes, the Irish and Ulster Scots languages, and aquaculture and marine matters. The parties further agreed on six functional areas of cooperation, including some aspects of transport, agriculture, education, health, the environment, and tourism, where a joint North-South public company was established. These zones and modes of cooperation were to be decided during a transitional period between the Assembly elections and 31 October 1998, but were not in fact resolved until 18 December. The NSMC differed from the previous attempt to establish a cross-border body of a confederal kind, namely the Council of Ireland of 1974, which enraged many Ulster Unionists and contributed to the collapse of the Sunningdale settlement. The name change was significant, being a concession to unionist sensibilities: Ireland is not in the title, the equality of North and South is implied. The NSMC is a ministerial rather than a parliamentary council. There was no provision in the Agreement to establish a North-South joint parliamentary forum as there was in the Sunningdale Agreement of 1973, but the Northern Ireland Assembly and the Irish Oireachtas27 are asked ‘to consider’ one. Nationalists wanted the NSMC to be established by legislation from Westminster and the Oireachtas to emphasize its autonomy from the Northern Ireland Assembly. Unionists preferred that the NSMC be established by the Northern Ireland Assembly and its counterpart in Dublin. The Agreement split these differences. The NSMC and the implementation bodies were brought into existence by British and Irish legislation, but in the transitional period it was for the Northern executive and the Republic’s government to decide, by agreement, how cooperation should take place and in what areas the North-South institutions should cooperate. Once these were agreed, the Assembly was unable to change these agreements except by cross-community consent. The Agreement explicitly linked Ireland, North and South, to another confederation, the European Union (EU). It required the NSMC to consider the implementation of EU policies and programmes as well as policy proposals being considered by the EU, and makes provisions for the Council’s views to be ‘taken into account’ at relevant EU meetings.

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research, and product development); European Union programmes (such as SPPR, INTERREG, Leader II, and their successors); inland fisheries; aqua-culture and marine matters; health (accident and emergency measures, and related cross-border issues); and urban and rural development. This is the collective name in Gaelic for the two chambers of the Irish Parliament, Dáil Éireann and Seanad Éireann.

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The signatories to the Agreement promised to work “in good faith” to bring the NSMC into being. There was not, however, sufficient good faith to prevent the first material break in the timetable scheduled in the Agreement occurring over the NSMC, though this was a by-product of the crisis over executive formation and decommissioning. The signatories are required to use “best endeavours” to reach agreement and to make “determined efforts” to overcome disagreements over functions where there is a “mutual cross-border and all-island benefit”. Participation in the NSMC was made an “essential” responsibility for “relevant” posts in the two Administrations. Here “relevant” meant any portfolio which has any part subject to North-South cooperation. This left open the possibility that a politician opposed to the NSMC might take a seat on it with a view to wrecking it, but ministers were required by the Agreement to establish the North-South institutions in “good faith” and to use “best endeavours” to reach agreement. Since these requirements were subject to judicial review it made it unlikely that potential wreckers would be able to take part in the NSMC for long. One of the requirements for membership of the Executive is that ministers must “support … all decisions of the Executive Committee” and they can be removed if they do not – though that pre-supposes decisions being made by the Executive Committee, and votes on exclusion by cross-community consent by the Assembly. In fact, although the DUP boycotted plenaries of the NSMC, it did not perform its ministerial duties illegally. The UUP First Minister David Trimble, by contrast, has twice been found by the Northern Ireland courts and by the House of Lords to have unlawfully exercised his appointment powers (held jointly with the Deputy First Minister) to the NSMC. In late 2000, to compel Sinn Féin to deliver IRA decommissioning, he refused to nominate the two Sinn Féin ministers to carry out their relevant duties on the NSMC. Since the relevant ministers were fulfilling their obligations under the Agreement and the law, the courts found in January 2001, and again in October 2001, that Trimble’s use of his discretion, while relevant for ministers not prepared to engage in “normal participation” in their duties, could not be used for the purposes in which he was engaged. If the implementation of the Agreement succeeds, currently a moot point, economic and sociological developments may underpin this new constitutional confederalism, and the salience of the NSMC. The Republic’s ‘Celtic Tiger’ economy means that Northern Ireland’s ministers and citizens, of whatever background, should see increasing benefits from North-South cooperation. And, if the EU continues to integrate, there will be pressure for both parts of Ireland to enhance their cooperation, given their shared peripheral geographical position and similar interests in functional activities such as agriculture and tourism, and in having regions defined in ways that attract funds (Tannam 1999). Northern Ireland may even come to think that it would benefit from membership of the Eurozone, though the Northern Ireland 1998 Act, unlike the Agreement, made currency matters non-devolved.

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2 The British-Irish Confederal Relationship There is a second, currently weaker, confederal relationship established by the Agreement, affecting all the islands of Britain and Ireland. In the new British-Irish Council (BIC), the two governments of the sovereign states and all the devolved governments of the UK, and the neighbouring insular dependent territories of the UK, can meet and agree to delegate functions, and may agree common policies. This proposal met unionists’ concerns for reciprocity in linkages, and provides a mechanism through which they might in future be linked to the UK even if Northern Ireland becomes part of the Republic. Unionists originally wanted the NSMC subordinated to a British-Irish, or East-West, Council. This was not agreed. There is no hierarchical relationship between the two Councils. Indeed, there are two textual warrants for the thesis that the NSMC is more important and far-reaching than the BIC. The Agreement required the establishment of North-South implementation bodies, while leaving the formation of East-West bodies a voluntary matter; and it stated explicitly that the Assembly and NSMC were interdependent, but made no equivalent provision for the BIC. The development of this confederal relationship may be stunted by an Irish governmental reluctance to engage in a forum where it may be outnumbered by seven other British-based governments – of Westminster, Scotland, Wales, Northern Ireland, Jersey, Guernsey, and the Isle of Man – though rules may develop to ensure the joint dominance of the sovereign governments. The BIC may, however, flourish as a policy formulation forum if the devolved governments of the UK choose to exploit it as an opportunity for intergovernmental bargaining within the UK, or to build alliances with the Irish government on European public policy – in which case it will give added impetus to other federalist or quasifederalist processes. But perhaps the real significance of the BIC, as we shall see, lies in its role as part of a model of double protection. 3 A UK-Northern Irish Federalizing Process It has already been argued that the Agreement was at least tacitly federalizing in as far as it was understood by at least some of its makers to constrain Westminster’s sovereignty by the Agreement, making Northern Ireland a federacy. The Agreement was a further blow to centralized unitary unionism in the UK – already dented by the 1997–1998 referendums and legislative acts establishing a Scottish Parliament and a Welsh National Assembly (Hazell and O’Leary 1999). If the Agreement ‘beds down’, then the political development of a quasi-federal relationship between the UK and Northern Ireland, with a Great Britain itself engaged in quasi-federalizing change within a quasi-federalizing European Union (King 2001), is assured whatever may be said in the drier Diceyian recesses of the UK Constitution’s ancien regime. 4 Irish Federalizing Processes The Agreement also opened federalist avenues in the Republic of Ireland, one of the most centralized states in Europe. Nationalists see the NSMC, North and South, as the embryonic institution of a federal Ireland: first confederation, then

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federation, after trust has been built. This stepping-stone theory is most loudly articulated and feared by ‘No’ unionists’, but they are not wrong in their calculation that many nationalists see the NSMC as ‘transitional’. Sinn Féin says so. Fianna Fáil says so. The Irish people did not abandon their aspiration for unification when they endorsed the Agreement, and modified their Constitution. Instead, it became “the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people expressed in both jurisdictions in the island” (from the new Article 3). The amended Irish Constitution therefore officially recognizes two jurisdictions that jointly enjoy the right to participate in the Irish nation’s exercise of self-determination. Unification is no longer linked to ‘unitarism’, and therefore is entirely compatible with either full confederation or federation. Irish unification cannot be precluded because of present demographic and electoral trends, which have led to a steady rise in the nationalist share of the vote across different electoral systems (O’Leary 1990; McGarry and O’Leary 1995a: Ch 10; O’Leary 1997b; O’Leary and Evans 1997; Mitchell, O’Leary, and Evans 2001; 2002). The unification envisaged in the re-drafted Irish Constitution no longer has anything resembling a programme of assimilation. Respect for “the diversity of … identities and traditions” in the new Article 3 connects with both consociational and (con)federal logic. The Republic is bound by the Agreement to structure its laws and its protection of rights so as to prepare for the possibility of a (con)federal as well as a unitary Ireland. Northern Ireland is recognized as a legal entity within the Irish Constitution. So its eventual absorption or elimination as a political unit is no longer a programmatic feature of Bunreacht na hÉireann (Constitution of Ireland 1937). The Agreement envisages the subjection of both jurisdictions in Ireland to the same regime for the protection of individual and group rights – a situation entirely compatible with a subsequent formal confederation or federation. And, now in accordance with the Agreement, there is an Irish Human Rights Commission tasked with cooperating with its Northern counterpart, and possibly developing a common Charter of Rights for the whole island. What might happen if a majority emerged for Irish unification within Northern Ireland, matched by one in the South ( a possibility that is not, of course, guaranteed)? If nationalists acquired local majority support it would not necessarily be in their considered interests to promote the region’s immediate administrative and legal assimilation into the Republic. They would then have a new interest in preserving Northern Ireland as a political entity within a federated Ireland: after all, they would be a local majority. So too would the governing coalition in the Republic, whose calculations might be disturbed by the entry of northern participants. Conversely, some unionists faced with this prospect might prefer a unitary Ireland as the lesser evil, calculating that their chances of being key participants in government formation in a bigger arena might protect them better than being a minority in Northern Ireland. But that is simply one possible future, one of many.

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Meanwhile, the federalizing dimensions of the Agreement are not merely panIrish or pan-British. They will evolve within a European Union that has its own strong confederal relationships and many ambitious federalists. There will be no obvious organizational or policy-making contradictions – though multiple networking clashes will arise from this extra layer of (con)federalizing – and they might help to transfer some of the heat from binary considerations of whether a given issue is predominantly controlled by London or Dublin. E

Double Protection and Inter-state Institutions

The subtlest part of the Agreement went beyond standard consociational, confederal or federal thinking. This is its tacit ‘double protection model’, laced with elements of co-sovereignty and intergovernmentalism. It is an agreement designed to withstand major demographic and electoral change. The UK and Irish governments promised to develop functionally equivalent protections of rights, collective and individual, on both sides of the present border. In effect, Northern Irish nationalists are promised protection now on the same terms that will be given to British unionists if they ever become a minority in a unified Ireland. National communities are protected whether they are majorities or minorities, irrespective of the sovereign stateholder – hence the expression ‘double protection’. The two governments not only promised reciprocity for the local protection of present and future minorities, possibly through establishing the functionally equivalent protection of rights on both sides of the border, but they have also created two intergovernmental devices to protect those communities. One is the successor to the Anglo-Irish Agreement, the British-Irish Intergovernmental Conference (B-IGC) that guarantees the Republic’s government access to policy formulation on all matters not – or not yet – devolved to the Northern Ireland Assembly or the NSMC. The B-IGC, in the event of the collapse of the Agreement, is likely to resume the all-encompassing role it had under the prior Anglo-Irish Agreement. The other device is the British-Irish Council (BIC). If Irish unification ever occurs then the Republic’s government would find it politically impossible not to offer the British government reciprocal access in the same forums, thereby converting the BIC into a version of what the NSMC is now. This reciprocal set of arrangements to provide for both present and possible future sovereignty arrangements is perhaps the truest novelty in the Agreement’s design. It is important to note what has not happened between the two sovereign governments. Formal co-sovereignty has not been established. Unionists claim that they have gotten rid of the 1985 Anglo-Irish Agreement in return for conceding the formation of the NSMC. This claim is, at best, exaggerated. Under the Agreement, the Irish government retains a say in those Northern Irish matters not devolved to the Northern Ireland Assembly, as was the case under Article 4 of the Anglo-Irish Agreement, and, as with that latter agreement, there continues to be an intergovernmental conference, the B-IGC, chaired by the Irish Minister for Foreign Affairs and the Northern Ireland Secretary of State, to deal with nondevolved matters affecting Northern Ireland, and this conference continues to be

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serviced by a standing secretariat – though the secretariat is no longer located in Belfast. The Agreement promised to “intensify cooperation” between the two governments on all-island or cross-border aspects of rights, justice, prison, and policing, unless and until these matters are devolved to the Northern Ireland executive. There is provision for representatives of the Northern Ireland Assembly to be involved in the intergovernmental conference, but they do not have the same status as the representatives of the sovereign governments. The Anglo-Irish Agreement fully anticipated these arrangements (O’Leary and McGarry 1996: Chs. 6–7), so it is more accurate to claim that the Anglo-Irish Agreement has been fulfilled rather than simply removed. IV Confidence-building and Responses to the Agreements The Agreement was initially greeted with much euphoria. Nationalists overwhelmingly endorsed it. By contrast, unionists were divided both during the negotiations and afterwards. The absence of decommissioning of weapons by paramilitaries before, during, and after the negotiations was the major issue for unionist politicians, especially because they had made it one. Describing constitutional architecture is one thing; informal political reality is often different. What lay behind this Agreement? And can it hold together? Everyone asks, ‘is it a house of cards, vulnerable to the slightest pressures?’ ‘Is it vulnerable to the play of either Orange or Green cards by hardline loyalists or republicans, or to miscalculations by less hard-line politicians?’ These are not foolish concerns, far from it. The annual fracas at Drumcree, when the Orange Order demands to march down the Garvaghy Road against the will of its predominantly nationalist residents; the massacre at Omagh in August 1998 carried out by the Real IRA; intermittent breakdowns in the loyalist ceasefires; continuing punishment beatings by all paramilitaries; and the continuing crisis over weapons decommissioning all revealed continuing high levels of ethno-national antagonism. A

The Agreement on Ending the Armed Conflict

The Agreement was a political settlement that promised a path to unwind armed conflict and thereby create a peace settlement, although, formally speaking, no military or paramilitary organizations negotiated the Agreement. The Agreement encompassed decommissioning, demilitarization, police reform, and prisoner releases. It addressed these issues in this order, and it is plain that although all these issues are inter-linked they were not explicitly tied to the construction or timing of the new political institutions – with one exception.

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B

Weapons Decommissioning

The Agreement was clear on decommissioning, despite the difficulties it occasioned. No paramilitaries that abide by the Agreement have had to engage in formal surrender to those they opposed in war. The Independent International Commission on Decommissioning (IICD), chaired by Canadian General John de Chastelain, assists the participants in achieving “the total disarmament of all paramilitary organizations.” All parties, but particularly those parties that (informally) represented paramilitary organizations in the negotiations, are required to “use any influence they may have to achieve the decommissioning of all paramilitary arms within two years following endorsement in referendums North and South of the agreement and in the context of the implementation of the over-all settlement” (Government of the United Kingdom n.d.: 20, para 3, emphasis added). The italicized passages above clarified the termination point for decommissioning, but not the moment of commencement. They also made it clear that decommissioning was linked to the implementation of the overall settlement, including the establishment of the governance structures (North, North-South, and East-West) and to police reform. That is why Trimble’s demand that Sinn Féin achieve a start to decommissioning by the IRA before executive formation in the North was regarded as a breach of any reasonable interpretation of the text of the Agreement. Without executive formation in the North, none of the formal institutions of the Agreement that required the cooperation of the local parties could get under way. Sinn Féin nominated a representative to the IICD, issued a statement to the effect that the war was over; and for the first time issued an outright condemnation of other republicans – of the ‘Real IRA’, whose members carried out the Omagh bombing. It even assisted the Basque organization ETA in its organization of a ceasefire and efforts to accomplish political negotiations in Spain. But, until November 1999, Trimble and some of his senior colleagues, harried by the DUP, were not prepared to regard this activity as sufficient evidence of good intentions. Each move on Sinn Féin’s part merely led the UUP to demand more, and we have discussed the problems occasioned by the suspension precipitated by Trimble. In response to the first suspension, the IRA withdrew its nominee to the IICD. But, in May 2000, a package deal to restore the Agreement’s institutions and to avoid the decommissioning deadline of 22 May was agreed. The deadline was shifted for a year, the IRA agreed to organize confidence-building inspections of its arms dumps and to put its weapons verifiably and completely beyond use, and the UK government indicated it would honor the Patten Report in full. This scenario was then run, and led to similar blockages and renewed suspensions, which is why the term ‘Groundhog Day’ is now current amongst Northern Ireland journalists. Trimble’s resignation threat led the IRA to withdraw its cooperation with the IICD – and Sinn Féin made it plain that it did not think the UK had honoured its pledges on police reform.

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C

Demilitarization, Police Reform, and Prisoner Release

The Agreement promised, and the UK government began, a series of phased developments to ‘demilitarize’ Northern Ireland. It did not, however, publish any complete demilitarization plan until the Joint Declaration of May 2003. “Normalization” is explicitly promised in the Agreement – reductions in army deployments and numbers, and the removal of security installations and emergency powers, were promised “consistent with the level of overall threat”. They have been delivered, albeit more slowly than some had expected. In the joint declaration, the UK government committed itself to having no more troops in Northern Ireland than was required by the normal defence of the UK, and that such troops would be confined to ‘garrisons’, and most of them were to be located in areas not known for their Irish nationalist sympathies. There was also a commitment to address personal firearms regulation and control as an extraordinary proportion of Northern Ireland’s citizens, mostly Protestants and unionists, have legally held lethal weapons (Government of the United Kingdom n.d.: 21, paras. 1–4). Police reform, as we have seen, was to be addressed through an Independent Commission. It was to report, at the latest, some nine months before decommissioning was scheduled to finish. It is difficult to believe that the choice of this timing on the part of the makers of the Agreement was an accident. The public outline of police reform was to be available as a confidence-building measure for republicans and nationalists before the major part of republican decommissioning could be expected. The early release of paramilitary prisoners sentenced under ‘scheduled offences’, and of a small number of army personnel imprisoned for murders of civilians, has, by contrast with decommissioning, police reform, and demilitarization, been proceeding with less disruption than might have been anticipated.28 Measures to assist the victims of violence have helped ease the pain occasioned in some quarters by these early releases. The early-release scheme has even worked in creating incentives for some loyalist rejectionist paramilitary organizations – such as the Loyalist Volunteer Force (LVF) – to agree to establish a ceasefire in order to benefit their prisoners (a ceasefire dishonoured more than all others combined). D

The Political Nature of the Agreement

The Agreement was an act of statecraft, and was accompanied by warm and generous language of reconciliation, but it was also based on hard-headed calculations, not pious sentiments. The Agreement rested on recognition of a changed balance of power. The Anglo-Irish Agreement of 1985 had led to a new but ulti28

The definitive treatment of the management of paramilitary prisoners in Northern Ireland has been written by a criminologist (McEvoy 2001). He observes that “the prisoners question [i.e., their prospective release] remained the most commonly identified reason for voting against the agreement,” especially by UUP voters (McEvoy 2001: 335 and n. 64).

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mately productive stalemate. Republicans were left with no immediate prospect of significant electoral growth and their objective ‘to sicken the Brits’ into withdrawal proved elusive. Loyalists reorganized in the late 1980s, and by the early 1990s were able to raise the costs of sustaining violence within the republican constituency. Unionists had discovered the limits of just saying ‘No’ as British or bi-governmental initiatives occurred over their heads. There was thus a military stalemate as well as a political stalemate. But underground structural changes, beneath the ‘frozen surface’, were noted by the late John Whyte (Whyte 1993). These included greater equality of opportunity and self-confidence among nationalists, and a shift in the demographic – and therefore electoral – balance of power between the communities. Together these changes underlined the fact that any political settlement could not return nationalists to a subordinate status. The initiatives of John Hume of the SDLP and Gerry Adams of Sinn Féin in the late 1980s and early 1990s constructively responded to this new stalemate. Much work had to be done before their initiative bore fruit (Mallie and McKittrick 1996). There was a bargain at the heart of the Agreement. Nationalists endorsed it because it promised them political, legal, and economic equality now, plus institutions in which they have a strong stake, with the possibility of Irish unification later, provided there is simple majority consent for that in both jurisdictions. They were to co-govern Northern Ireland rather than being simply governed by either unionists or the British government. They obtained this share in government with promises of further reforms to redress past legacies of direct and indirect discrimination. Republicans in Sinn Féin and the IRA therefore traded a long war that they could not win, and could not lose, for a long march through institutions in which they can reasonably claim that only their means have changed, not their end: the termination of partition. Sinn Féin has been extensively rewarded for this decision as its vote has consistently increased with the peace process, culminating in passing the SDLP as the largest nationalist party in the 2001 Westminster and local government elections (O’Leary and Evans 1997; Mitchell, O’Leary, and Evans 2001) and in the November 2003 elections. Nationalist support for the Agreement was not difficult to comprehend. For them, it was a very good each-way bet. But why did the UUP and the loyalist parties make this consociational bargain? It is probably a mistake to overemphasize personality matters, the transformation of Trimble, the charms and latent threats exercised on him by Tony Blair, Bertie Ahern, and Bill Clinton, or the impact of the diplomacy of American Senator George Mitchell – though all had their registers. The mere process of multiparty inclusive negotiations was not enough to account for Trimble’s decision to lead his party colleagues where many of them were most reluctant to go, nor do these factors allow for his intelligence. The unionists who supported the making of the Agreement were concerned not so much to end the IRA’s long war but rather to protect and safeguard the Union. As with their predecessors, they feared British betrayal of the Union and Irish ‘salami tactics’. Their calculus was this: they believed that only by being generous now could they reconcile nationalists to the

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Union and protect themselves against possibly seismic shifts in the balance of demographic and electoral power. Their bet was that unionists would get a share in self-government now, avoid the prospect of a British government making further deals over their heads with the Irish government, and have some prospect of persuading northern nationalists that a newly reconstructed Union offered a secure home for them. They hoped they could work with the moderate SDLP and inhibit the agenda of republicans. They made the Agreement, in short, to stave off something worse. It is not surprising therefore that there has been greater ‘rejectionism’ within the unionist bloc: they were conceding more, and some amongst them maintained there was no need to concede anything, at least not yet (Evans and O’Leary 2000). Nevertheless, significant proportions of supporters of the ‘No’ unionist parties, especially in the DUP, have told pollsters at key times they would like the Agreement to work – which implies they are convertible to its merits, especially if there is IRA decommissioning, and they are strongly in favour of the Assembly rather than direct rule. The making of the Agreement has demonstrated that major shifts in public opinion are possible in ethno-national conflicts (compare O’Leary 1992; Evans and O’Leary 1997; and Evans and O’Leary 2000). Voters, especially unionists, became more willing to accept certain compromises after some of their leaders had endorsed them. Public enthusiasm and support for the Agreement has, however, diminished over time, especially amongst unionists. In one recent quota poll, only 36% of Protestants said they would still vote for the Agreement if the referendum were held again (Irwin 2003: Table 3), and 37% of Protestants said ‘No’ to the question ‘Do you want the Belfast Agreement to work?’ Unionist ‘rejectionists’ believe they have seen nothing but concessions to nationalists flow from the Agreement, but without wholesale decommissioning by the IRA in return. They portray the entire process as appeasement. In return, unionist opposition to the Agreement – despite the fact that the Agreement has led to the formal recognition of Northern Ireland, the IRA’s ceasefire, and the relative weakness of the NSMC – has reinforced hard-line republicans in their conviction that unionists are unreformable supremacists who will not treat them as equals. The beauty of the Agreement appeared to be that both nationalists and unionists had sound reasons for their respective assessments of its merits, that is, for believing that they were right about the long term. They could not be certain they were right, and so they were willing to make this elaborate settlement. But will the Agreement wither and die once it has become apparent who is right about the long term? That possibility cannot be excluded, but that is why the Agreement’s architecture repays careful inspection. It was not a consociation, like that of Lebanon, vulnerable to the slightest demographic transformation in the composition of its constituent communities. The Agreement contains incentives for each bloc to accommodate the other precisely to make its vision of the future more likely. That is, both have had reasons to act creatively on the basis of self-fulfilling prophecies. So near and yet so far.

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V

Implementation

This chapter has deliberately treated implementation matters in the course of outlining the institutional and confidence-building measures in the Agreement. Their successes and difficulties by the autumn of 2003 can now be summarized, differentiating between institutional implementation and the execution of confidence-building measures. We may say that the peace process has been, on balance, more successful than the political settlement, to date. That is to say, the levels of political deaths are remarkably lower than they were before the first IRA ceasefire of 1994 – though some other indicators of violence have remained high (e.g., incidents of intimidation and punishment beatings). That said, the remarkable formal political institutions of the Agreement, albeit with delays in their scheduled timetables, were all eventually established in the course of 1998–1999. Most of them have been shown to be coherent and potentially robust and democratically accountable. But the institutions have been plagued by instability. Four key difficulties have been evident in the running of these institutions. First, the UK government has obtained and used a unilateral power of suspension, not envisaged by the Agreement, a power that damages the Agreement’s autonomy and federacy features. This power has been immensely disliked by nationalists, but sought by unionists, especially in the UUP, as a bargaining chip to compel the IRA to deliver decommissioning. The use of the suspension power eventually bordered on the ludicrous – with the UK Secretary of State postponing scheduled elections under the power, through one-day suspensions (generating six week extensions), through permitting the executive to run despite legal requirements for fresh elections, and finally, in May 2003, through suspending the Assembly and scheduled elections at the same time as his Prime Minister was promising to abolish the power (in the Joint Declaration of May 2003). If the Agreement is to function, the suspension power has to be abolished. Second, the dual premiership has been vulnerable to resignation threats from both the First and Deputy First Ministers, creating reasons for either intra-Agreement Reviews, or for extra-Agreement suspensions. Two features of the dual premiership have made it a brittle institution. One is the interdependence of the premiers, which gives each a ‘nuclear weapon’ resignation threat over the other (especially if the UK’s suspension power weakens the threat posed by elections), and the other is their election under the concurrent majority procedure, which may make filling the posts unduly difficult, as is evident after the November 2003 Assembly elections. For these reasons, John McGarry and I have recommended that the resignation power, which was not in the text of the Agreement, should be qualified, and that a default rule (d’Hondt, modified by the requirement that the two premiers should not come from the same bloc) should be applied if a concurrent majority does not exist. Third, both unionists who reject and unionists who support the Agreement have tried to create difficulties within the Executive, by refusing to attend plenary sessions of the NSMC and rotating their ministerial nominees (in the case of the DUP); by refusing to nominate their MLAs to, or to oblige their

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withdrawal from, their ministerial entitlements (in the case of both the UUP and the DUP); and (on the part of the UUP) by refusing to establish or maintain the Executive in the absence of IRA decommissioning. Pending IRA decommissioning and dissolution, these difficulties seem likely to persist. Lastly, First Minister Trimble acted unlawfully in refusing to nominate Sinn Féin ministers to carry out their duties on the NSMC – though otherwise the NSMC has been remarkably free of anticipated frictions. The upshot of these four institutional difficulties is an ironic historic reversal. Whereas nationalists and republicans intermittently boycotted devolved arrangements under the Stormont Parliament (1921–1972), it is now unionists who regularly threaten to do so. Nationalists have become enthusiasts for autonomy/ federacy; whereas unionists are divided between the merits of devolution and the restoration of direct rule. All of these institutional difficulties have flowed directly from two sources. The first has stemmed from unionist dissatisfaction, either with the failure of the confidence-building measures attached to the Agreement, especially decommissioning, or with the inevitable repercussions of appropriate implementation of the confidence-building measures, especially with regard to police reform, and prisoner releases. The second has flowed from internal political competition within the unionist bloc. Competition within the UUP, and between the UUP and the DUP, has rendered it extremely difficult for the UUP to be a confident and stable coalition partner with the nationalists and the republicans who made the Agreement, and has persuaded the DUP to pose as a champion of renegotiation of the Agreement. The confidence-building measures embedded in the making of the Agreement have been of two kinds: the responsibilities of the two sovereign governments, and the responsibility of agents within Northern Ireland. The Irish government has fulfilled its immediate obligations, including the organization of the change of its constitution through a referendum. But, it has been slow in building the forms of human rights institutions and measures that would demonstrate its full commitment to the form of double protection embedded in the Agreement. The UK has had a much more mixed track-record, perhaps, if one is generous, because it has had the most to do. As the key state power, it has been the most vulnerable to lobbying. Erratic conduct in policy has been occasioned in part by a succession of different Secretaries of State (Mowlam, Mandelson, Murphy, Reid, and Murphy). The UK has fulfilled its obligations with regard to prisoner releases. It has organized better arrangements for the victims of violence. It has made promising starts with respect to better human rights protections and laws on equality. It has initiated some demilitarization, but, reasonably, awaits full decommissioning before full completion. On police reform, it has zigzagged dramatically. It radically diluted the Patten Commission’s proposals, then moved to satisfy the SDLP’s complaints that it had done so, but lost Sinn Féin’s confidence that it wanted it to be part of new policing arrangements. Its conduct, especially over suspensions, made it seem partial to the interests and threats of the divided

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moderate unionists. Its conduct, at times, has made it less likely that the IRA would deliver on decommissioning. The confidence-building measures that lie outside the two governments’ control rest with paramilitaries who did not directly negotiate the Agreement. They have, to varying degrees, maintained their ceasefires. Since 1998, the worst atrocities, on a generally lower scale than before, have been carried out by smaller dissident organizations. The IRA has played tit-for-tat with the UK on police reform and decommissioning, and tit-for-tat with the UK and the UUP on the institutions of the Agreement and decommissioning. Nothing in the Agreement warrants the IRA’s current lateness in completing decommissioning. What inhibits the IRA is the failure of the UK and the UUP fully to honour their obligations, reluctance to abandon the most important republican bargaining chip, and the fear amongst its constituents that they should not be left defenceless against unreformed police and active loyalists. Loyalists have failed to prosper politically (Bruce 2001). By contrast, Sinn Féin has prospered electorally (Mitchell, O’Leary, and Evans 2001), because it is seen as the (increasingly constitutional) best nationalist champion, and because it is the beneficiary of demographic transformations. Its successes, despite no completion of decommissioning by the IRA, have magnified unionist anxieties. VI Current Status and Future Prospects The author of this review is a critical admirer of the Agreement, a fact which readers will have deduced.29 Five years after its initiation it is in serious difficulties, but it would be very premature to conclude that it has failed. Realism obliges consideration of how the Agreement may be best stabilized – and of appropriate default options if it collapses. The Agreement will, of course, work best if all parties and governments fulfill their remaining obligations on its implementation. Under the Agreement, Sinn Féin and the loyalist political parties are obliged to use their good offices to ensure the comprehensive decommissioning and disarmament of the paramilitary organizations associated with them. As and when all major aspects of the Agreement for which it is responsible are fully implemented by the UK government (including the repeal of the Suspension Act of 2000), it will be reasonable to have provisions enabling the exclusion from ministerial office of parties that maintain links with paramilitary organizations. This should occur within the provisions of the Agreement if at all possible. A legal path would enable the courts to determine whether parties have associations or conduct activities in breach of the ministerial Oath of Office, and to suspend such parties’ entitlements to ministerial office until such time as their conduct is deemed fully democratic. This would probably require fresh primary legislation at Westminster, passed outside the Agreement’s procedures, and would therefore be open to the valid objection that it is ‘extra-Agreement’ (like the 2000 Suspen29 What follows draws from joint work with John McGarry (McGarry and O’Leary 2004a).

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sion Act). ‘Juridification’ is, moreover, a difficult road. Once judges extensively regulate political parties there may be undesirable repercussions. That might be less pressing an issue if judges were widely regarded as impartial in Northern Ireland, but they are not, in fact, widely representative, though that may change. A second path is embedded in the Agreement. It provides for the Assembly to determine whether a party entitled to ministerial nominations is in breach of its Oath of Office – which incorporates commitments to exclusively democratic means. But, complain unionists, this provision operates under the constraint that it requires cross-community consent. And, now that Sinn Féin is the majority party within the nationalist bloc, they can hardly be expected to provide such consent. Fresh Assembly elections may create strong incentives for Sinn Féin to deliver the IRA’s final dissolution or to disassociate itself from its twin (O’Leary 2001f; 2001e; 2001h). If that proves not to work, then other remedies should be sought for republican failures to deliver on their obligations. The third path is intergovernmental, and has commended itself to the two governments. It is to empower a commission to determine, after due deliberation, whether a party is in breach of democratic principles. This political mode of deciding on the merits of finding a party in breach of the Mitchell principles is better than the juridical route – though it too suffers from the fact that it has not been agreed inside the procedures for review within the Agreement. One important proviso to the existing proposals might be suggested – the two governments in the British-Irish intergovernmental conference should ratify any future suspension of a party’s entitlement to office triggered by the determination of the international commission. The loyalist parties that made the Agreement have proven electorally brittle. The UDP has dissolved itself while the PUP has a tough future. Loyalists have no immediate prospects of ministerial office. Consequently, the Agreement’s incentives do not affect their conduct in the same way as republicans. Their paramilitary organizations are merely committed to decommissioning on receipt of confirmation of the IRA’s dissolution. It is evident that loyalist – and republican – organizations that reject the Agreement must be dealt with by the new police service, fairly, impartially, and effectively. The ambiguous status of the loyalist organizations that are on formal ceasefire should be reviewed by the new police service in conjunction with the two governments. Firm and impartial handling of current crimes by loyalists will considerably strengthen the IRA’s disposition to dissolve. The negotiation and the making of the Agreement divided the unionist community. It remained divided in the referendum over its adoption. Public support for the Agreement has wavered significantly within the unionist community. At the time of writing, it is low, and outnumbered by those disappointed by or hostile towards the Agreement. But sufficient support to make the Agreement work has been there when progress has been evident. Unionists are, and consider themselves likely to be, supportive of the Agreement if it generates both peace and prosperity (Evans and O’Leary 2000). It remains possible to vindicate this belief. The unionist community’s political allegiances are mostly divided between

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two parties. One of these, the formally pro-Agreement party, the UUP, has been deeply divided internally. To manage the rejectionists within his party, its leader has breached the Agreement at regular intervals. When due allowance is made for Trimble’s tremendous difficulties in managing his party, one thought should be uppermost in the minds of those who want to be clear-eyed about the Agreement. We will only know the Agreement’s institutions are secure when their offices are held and tested by those most initially opposed to or suspicious of them. It would be strange if the Agreement’s stability required the permanent minority status of the DUP and Sinn Féin within their respective blocs. The Agreement’s institutions have provided incentives for both the DUP and Sinn Féin to maximize their vote and seat shares by moderating their platforms. The Agreement cannot credibly endure if the Assembly is only brought out to play when Westminster thinks it will be in the hands of utterly safe unionists and nationalists. There is a reasonable prospect that the leadership of the DUP would think twice about wrecking the Agreement if their party became the majority party – and if other appropriate incentives are in place to clarify their leaders’ minds. There also remains a serious prospect that ‘no unionism’ would be dealt a death-blow by the IRA fulfilling decommissioning. It is a hypothesis that needs to be tested. Elsewhere, I have jointly outlined how the two governments might encourage the full liberalization of the consociational arrangements, as regards designation, and electing the First and Deputy First Minster (McGarry and O’Leary 2004b). The completion of policing reform will be crucial in consolidating the Agreement. Without these steps, the IRA would be most unlikely to fulfill its necessary ‘acts of completion’ (of decommissioning), and there will not be political stability. The UK is now committed, in the context of a peaceful settlement, to a robust Policing Board, a representative police service, effective cooperation between the new PSNI and Ireland’s Garda Síochana, the reform of the Special Branch, normalized and community policing, and the devolution of policing and criminal justice. The delegation of responsibility for policing to the Assembly and Executive will be the final proof that the settlement has taken root. It is to take place provided it is ‘broadly supported’ by the local parties. There is no possibility of such support unless the IRA decommissions fully. There is also little possibility of such support if policing were to become the preserve of either nationalist or unionist ministers. It would therefore be best if policing become a joint responsibility of the two premiers, who could also take a justice portfolio, and organize their joint office to have these two jurisdictions, justice and policing, separated within their offices but reporting to both of them.30 The Joint Document, together with previous proposals on the administration of justice, and developments in the pipeline on human rights, prefigures a transformation of the administration of justice along the necessary consociational lines. So both policing and justice reforms now look primed to fulfill the promise of the Agreement. Public inqui30 This is a better idea than other options: a single Justice Department, headed by one Minister, a Justice department rotated between different parties; and separate justice and policing departments, each headed by a Minister from a different tradition.

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ries, present and promised, may partially redress the grievances of the relatives of the victims of unlawful state-sanctioned killings by the police and army or through collusion between public officials and paramilitaries (for a comprehensive analysis of these cases, see Ní Aoláin 2000). Distrust characterizes inter-party relations over the final implementation of the Agreement, but the governments of Ireland and the UK are the key guarantors of the Agreement, and want it to work. If the Assembly and the NSMC – which are mutually interdependent – cannot function, then the British-Irish Intergovernmental Conference reverts to the functions and capacities its predecessor enjoyed under the Anglo-Irish Agreement. Publicly highlighting this fact may concentrate the minds of both the DUP’s and the UUP’s hardliners. The failure of the Agreement’s Assembly would not preclude the UK and Irish governments from deepening their cross-border and all-island cooperation, through or outside the B-IGC. Any reasonable reading of the Downing Street Declaration (1993), the Framework Documents (1995) and the Agreement (1998) places duties on both governments to promote and extend such cooperation. Such cooperation would be better than an immediate shift towards joint sovereignty arrangements – but in this negative scenario demands for the Irish government to pursue joint sovereignty will become vigourous. The incentives of this default scenario are clear. The DUP needs to know that no working of the Agreement’s institutions by the Northern Assembly means no devolution and the growth in the scope and influence of the B-IGC. Sinn Féin has proven, interestingly, to like devolution, albeit as a ‘transitional arrangement’. It knows it will flourish best within the framework of a working Agreement rather than one in default. These incentives may prove powerful, but perhaps they are not powerful enough. The sovereign governments might consider binding themselves. The Agreement was intended to rectify the historic denial of Irish national self-determination by the British state. According to the Agreement, and the correct reading of Ireland’s laws and constitution, the partition of Ireland now rests on a decision of the people of Ireland, North and South. The institutions of the Agreement are a product of (constrained) Irish choices, North and South, and not the choices of Great Britain’s parliament or people. The UK government has agreed that, as part of the full implementation of the Agreement, it is willing to repeal the Suspension Act of 2000. But, it is not enough that the Suspension Act be repealed as and when all parties implement the rest of the Agreement. It would be desirable to have the Agreement – without the UK’s Suspension Act – entrenched in a treaty attached as a joint and justiciable protocol to whatever new European constitution may be proposed and agreed in the future. The European Union’s new constitution has to be compatible with each member-state’s constitution, and this would be the best way of ensuring no clash of laws between the UK and Irish states. This proposal would constitutionalize the Agreement so that a unilateral suspension of any of the Agreement’s institutions by the UK or Ireland would be regarded as a breach of the EU constitution by the appropriate court. It would also, arguably, be consistent with the volitions of two types of nationalist, Irish nationalists and British unionists.

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Postscript (Summer 2007) It is a pleasure to report that the difficulties described in the preceding pages have been largely resolved, and that the Agreement has been stabilized, largely because the two sovereign governments and the major parties accomplished what was said to be necessary. This is not the place to outline matters in any detail, but three processes merit emphasis. First, from 2003 until 2007, the key security questions were slowly and successfully resolved. More robust policing reform was delivered through the conjunction of, amended Police Act (Northern Ireland) 2000, and the Police Act (Northern Ireland) 2003, which strengthened the powers of the Policing Board. In the Joint Declaration of 2003, the British government promised to support the devolution of policing and justice powers, providing it was agreed to by local parties. It detailed steps towards ‘normalization of security arrangements’, i.e., demilitarization, over a defined time frame between then and May 2005, and promised to repeal the Northern Ireland Act 2000 (the ‘Suspension’ Act) – which it duly did. These ‘acts of completion’ by the UK government were implemented amid matching acts by IRA, including comprehensive decommissioning and an end to violent and criminal activity, and Sinn Féin’s acceptance of the police and taking of its positions on the Policing Board. Full-scale IRA decommissioning was independently witnessed in July of 2005, and Sinn Féin’s acceptance of the police followed in January of 2007. In October of 2006, and again in March of 2007, the Independent Monitoring Commission reported that the IRA had ‘abandoned’ terrorism and violence and was ‘firmly committed to the political path’,31 paving the way for the Sinn Féin-DUP pact on power-sharing. Second, after 2003, the DUP and Sinn Féin decisively consolidated their electoral dominance of their respective blocs, but on moderated platforms. In the European parliamentary elections of 2004, the local government elections of 2005, and the Westminster elections of 2005, Sinn Féin decisively worsted the SDLP, and the DUP triumphed over the UUP. These contests left the two historically hardline parties free of fear of making compromises that might cost them elec31

“We remain of the same view as we expressed six months ago about PIRA. We believe that it is firmly committed to the political path. It is not engaged in terrorist activity; nor in our view does it contemplate any return to it. Its operational structures have been disbanded and, in the absence of activity, the deterioration of terrorist capability continues. The organisation does not engage in acts of violence and has instructed its members not to do so. The leadership continues to encourage members to undertake political or community activities. We have no reason to think that it will be diverted from continuing along this path and we note the decision of the Sinn Féin Ard Fheis on 28 January 2007 to support policing and the criminal justice system and subsequent positive statements to that effect. We therefore conclude that terrorism and violence have been abandoned and that PIRA does not pose a threat relevant to security normalization”, 14th Report of the Independent Monitoring Commission, 12 March 2007, http://www.independentmonitoringcommission.org/documents/uploads/14th_IMC_Report.pdf

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torally, and both decided, to shift from being pure ‘tribunes’ of their respective peoples, to being their respective consuls. In the 2007 Assembly elections, the DUP took 30%, and Sinn Fein 26% of the first-preference vote, with the SDLP and the UUP trailing with 15% each (the SDLP won less seats than the UUP on a slightly higher vote share). These results preceded the formation of an Executive with six unionist and four nationalist ministers, headed by Ian Paisley and Martin McGuinness as the First and Deputy First Ministers, respectively. Their personal relationship seemed remarkably more relaxed and warmer than that between David Trimble and Seamus Mallon. Lastly, to deliver this benign scenario, the two sovereign governments did what was necessary. The UK government abandoned Mandelson’s strategy of shoring up the UUP – and, under Secretaries of State Murphy, Reid and Hain, they went back to the full agenda of the 1998 Agreement, delivered on police reform, and, jointly with the Irish government, made it plain that any failure on the part of unionists to work within the new institutions (after republicans had comprehensively delivered the end of the IRA) would lead to a plan B – in which British and Irish intergovernmental cooperation would resemble joint sovereignty. This stance incentivized the DUP to share power, because it could claim its intransigence had delivered the end to the IRA’s war-machine and tell its supporters that it was necessary to share power with democratized republicans to prevent a worse scenario. Republicans were, as suggested above, incentivized by the prospects of an increased share in power and the leadership of northern nationalists. The UK Treasury engaged in both arm-twisting and sugar-coating of funding to ensure that the new Assembly would begin life with a manageable fiscal balancesheet. More importantly, however, in the Saint Andrews Agreement of 2006, the two governments agreed and followed through on two of the ideas emphasized here. With the agreement of the parties they made the election of the two premiers the decision of the two largest parties, without requiring that they vote for each other’s candidate, in effect applying d’Hondt to the premierships; and they agreed the ending of the UK’s Suspension Act once the parties could agree on a working Executive. They also adjusted the ministerial code and formally introduced consociational decision-making within the Executive. There are places and times where integration is the appropriate normative strategy for resolving conflicts. Contemporary Northern Ireland is not one of them. A British or an Irish integration strategy has been available and either imposed or demanded throughout the last century – orthodox Unionism and Irish nationalism respectively. These rival programmatic visions have been at the heart of conflict. If the current institutions endure, a common Northern Irish identity may come to be shared by most unionists and nationalists, but that will be the work of at least two decades, and it will be consociation that eases the path to this shared identity. This complex consociational and territorially pluralist settlement invalidates the proposition that consociations are never made in or never appropriate for deeply divided places. We shall see whether it will show that consociations can be stable over the longer run amid nationally divided peoples. Its chances are fair. Meanwhile critics of the Agreement are free to mobilize and transform

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the identities that they hold culpable for the conflict. They are equally free to transform the institutions that they believe – wrongly – freeze these collective identities. If they succeed, I would say consociation enabled them to succeed. It is feasible that, within this century, a majority will emerge within Northern Ireland that favours an all-Ireland state. But, if that happens and if it is matched with sufficient support in independent Ireland, the re-unification of Ireland should take a confederal or federal form, preserve consociational arrangements within Northern Ireland, and keep Northern Ireland linked to Great Britain through the British-Irish Council – if that is what unionists want. The experience of stable consociation within the sovereign framework of a UK with confederal links to Ireland will ease any such transition. References Constitutional Texts, Agreements, Treaties and Reports, all of which can be found on the Cambridge-Carnegie Project website.32 1)

Ireland

Bunreacht na hÉireann 1937, Constitution of Ireland

2) United Kingdom

Government of Ireland Act 1920 Northern Ireland Act 1998 Northern Ireland Act 2000 Police (Northern Ireland) Act 2000

3) United Kingdom and Ireland

The Anglo-Irish Agreement 1985, known as the Agreement between the Government of Ireland and the Government of the United Kingdom in Ireland, and known as the Agreement between the United Kingdom of Great Britain and Northern Ireland and the Republic of Ireland in the UK. The British-Irish Agreement 1999 The Joint Declaration May 2003 The Saint Andrews Agreement 2006

4) Intergovernmental and inter-party Agreement

Government of the United Kingdom (1998) ‘The Agreement: Agreement Reached in the Multi-Party Negotiations’, No place of publication listed: No publisher specified.

5)

Reports

32

http://www.intstudies.cam.ac.uk/centre/cps/.

Patten, C. et al. (1999) “A New Beginning: The Report of the Independent Commission on Policing for Northern Ireland”, Belfast: Independent Commission on Policing for Northern Ireland, and published at http://www.belfast.org.uk/report.htm.

Chapter 5 Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing? Anthony J. Regan

I

Introduction

The development of a distinct ethnic identity by the people of Bougainville, a remote part of Papua New Guinea, is a relatively recent phenomenon, occurring only during the twentieth century. It has, however, contributed to two separate secession attempts. The first, in 1975, was resolved with almost no violence by a 1976 settlement. The second was part of a deeply divisive violent conflict from 1988 to 1997. While a political settlement was reached in August 2001, a significant minority faction continues to espouse the secessionist cause. The 1976 settlement involved territorial autonomy arrangements developed without significant international involvement. Extended to the other eighteen provinces of Papua New Guinea (“symmetrical” autonomy (Ghai 2000b)), the arrangements operated reasonably well in Bougainville until the violent conflict erupted in 1988. The Bougainville Peace Agreement signed on 30 August 2001 that formally ended the second conflict also gives a central place to territorial autonomy. But not only is the autonomy far more extensive than under the previous arrangements, it is also both applicable only to Bougainville – what Ghai calls “asymmetrical autonomy” (Ghai 2000b) – and is part of a much wider agreement that provides a regime of special rights for a small minority of the Papua New Guinea population. Other major elements of the 2001 agreement include deferral of the self-determination question for Bougainville to a non-binding referendum on Bougainville’s future political status (inclusive of independence), arrangements for amnesty and pardon in relation to crimes committed during the conflict, a complex demilitarization process for Bougainville – the progress of which determines the implementation of the autonomy and referendum arrangements – and constitutional entrenchment provisions that require Bougainville consent to any alteration of the agreed arrangements. The international community has been extensively involved in facilitating and monitoring the ongoing peace process established in 1997 from which the 2001 political agreement emerged, and in mediating aspects Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 125-159

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of the negotiation of that agreement, and managing or monitoring key aspects of it. This chapter examines the origins, main features and implementation of the power-sharing arrangements in the Bougainville case, with particular emphasis on the main features and implementation of the 2001 Agreement. At the same time, however, brief comparisons between the agreements of 1976 and 2001 and the conflicts that produced them provide insights into both the reasons why the two agreements were necessary, and the significant differences between these two sets of power-sharing arrangements. The comparison also raises questions about the sustainability of the 2001 agreement. The central issues examined include: • the geographical, political and economic factors that contribute to the focus on territorial autonomy (rather than mechanisms for integration into the central government) as the central aspect of power-sharing arrangements in 1976, and a key aspect in 2001; • whether the ending of the self-determination dispute in 2001 would have been possible through other strategies – for example, some form of assimilation, or arrangements for separation; • whether the resolution of the conflict would have been possible without international involvement in both the process that produced the 2001 agreement and its implementation; • the extent to which that agreement goes beyond territorial autonomy, and whether it meets the criteria for complex power-sharing; • whether the power-sharing agreements are more likely to entrench division or resolve it; • whether the particular form of power-sharing in the agreement is likely to be permanent or transitional. In relation to the latter two points, of central concern is the question of whether the 2001 agreement offers the prospect of a lasting settlement of the secessionist dispute, particularly in light of the weakness of the state in, and the political culture of, Papua New Guinea and Bougainville, and the inherent tension of a power-sharing agreement that explicitly keeps open the secession issue by providing a constitutional guarantee of a referendum on independence within a defined period. II

Background – The Self-determination Dispute

A

Papua New Guinea and Bougainville – Origins of the Dispute

Bougainville, a group of islands 1,000 kilometres east of Papua New Guinea’s national capital, Port Moresby, is the most remote of nineteen provinces. Its 9,438 square kilometres is about 2% of Papua New Guinea’s land area. Geographically, culturally, and linguistically Bougainville is part of the Solomon Islands chain rather than the groups of islands that, together with the Eastern half of the island

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of New Guinea, make up Papua New Guinea. It was a consequence of some of the last throes of European colonial competition in the late nineteenth century that saw Bougainville became part of German New Guinea rather than the British colony of Solomon Islands. New Guinea’s approximately 5.1 million speak twenty-one distinct languages, eight sub-languages and thirty-nine dialects (Allen and Hurd 1963; Regan 2002c: 21), with considerable cultural diversity both within and between language groups (Ogan 1991). Cultural and linguistic diversity exists, however, throughout Papua New Guinea (home to over 800 language groups), and the main distinctive feature shared by most (but not all) Bougainvilleans is very dark skin colour. It was almost certainly only during the last 100 years, originally in the context of colonial development, that skin color became the marker of a Bougainvillean identity distinct from the rest of Papua New Guinea. That identity is asserted mainly in dealings with the rest of Papua New Guinea, while many quite different ethnic identities, based on local language or culture groups, are asserted in dealings between Bougainvilleans. Bougainville’s close contact with the outside world and its integration into Papua New Guinea are recent, with the first permanent colonial administrative post (under German New Guinea) being established in 1905. Australia was the main colonial power from 1914 until Papua New Guinea’s independence in 1975. It was under Australian rule that one of the world’s largest copper and gold mines was established at Panguna in central Bougainville, operating from 1972 to 1989 when it was closed by violent conflict. It was the only large mine in Papua New Guinea until the mid-1980s, and was crucial to the economy of both Papua New Guinea and Bougainville. The imposition of the mine by the colonial regime without consultation with Bougainville and for the economic benefit of Papua New Guinea rather than Bougainville was widely resented in Bougainville. Nevertheless, together with widespread plantation and smallholder cocoa production, the mine made Bougainville Papua New Guineas’ wealthiest province prior to the conflict. The state in Papua New Guinea (including Bougainville) has always been weak, at all levels, with limited impact on local communities and difficulties in imposing policies on those determined to oppose them. Like the rest of Papua New Guinea, there were no pan-Bougainville political structures under the centralized colonial administrative structure. Indeed, elected local governments were only established gradually in Bougainville from the late 1950s onward, and in some areas were resented and resisted as a form of colonial control (Connell 1977; Griffin 1977). Pre-colonial social structures based on small land-holding clan lineages have been resilient. A minority of societies have hereditary leadership, the rest largely have performance-based leadership, though often with a hereditary element. Most societies are matrilineal, with women regarded as the custodians of land 

For more on the development of Bougainvillean identity and the process of its politicization, see Griffin 1977; 1982; Nash and Ogan 1990; Ghai and Regan 2000.

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and most other forms of wealth in customary society. While women tend to have high stature within their societies, they tend to play limited public roles under customary arrangements, with uncles and brothers usually speaking on their behalf in public discussion, even on land matters. It is still often far from easy for women to play public roles. Most Bougainvilleans still live in isolated rural communities that rely heavily on subsistence agriculture – both contributing to their high level of de facto autonomy from the state and continued cultural and linguistic diversity. (Ghai and Regan 2000; Ogan 1991; Terrell 1986). At the same time, the fact that Bougainville society comprises hundreds of small societies with numerous identities around which much political mobilization occurs adds to the complexity of ‘modern’ politics, government decision-making processes, and institution building (political and bureaucratic). A Bougainville movement for separation from Papua New Guinea developed slowly, based on a growing sense of a distinct identity, continuing links with Solomon Islands (reinforced by links of the two main churches to ‘parent’ houses in Solomon Islands), and reinforced by grievances against the colonial regime, which contributed to movements of resistance to colonialism (Kiki 1968: 104125; Ogan 1972; Oliver 1991; Rimoldi and Rimoldi 1992; Regan 2002c). Separatism came to the fore in the late 1960s and intensified in the early 1970s, largely because of resentment about the Panguna mine. It was seen as having been imposed without consultation, paying a minimal revenue share both to Bougainville as a whole and to the owners of land used for mining purposes, and contributing to an influx of people from other parts of Papua New Guinea attracted by employment and other economic opportunities associated with the mine (as well as with plantations). Outsiders were seen as undermining Bougainville culture, threatening Bougainville identity, and challenging Bougainvilleans’ rights to land as well as to employment and economic opportunities associated with the mine. B

The First Self-determination Dispute and the 1976 Agreement

While high expectations of secession as the solution to all Bougainville’s problems tended to be generated among ordinary people from the late 1960s, for many of the more educated Bougainvillean leaders secessionist claims largely involved an ambit claim for a better share of the Panguna mine revenue and a reasonable degree of autonomy for Bougainville. Strident secessionist demands made from late 1972 were gradually modified into a push for autonomy under pan-Bougainville political structures. Disagreements with the central government over funding and the constitutional entrenchment of arrangements for political decentralization to elected provincial governments consolidated support for the secessionist cause, and Bougainville’s unilateral declaration of independence (UDI) was made 

There is an extensive literature on the impact of the mine, including Bedford and Mamak 1977; Denoon 2000; Griffin 1982: Mamak and Bedford 1974; Ogan 1972; Connell 1991; Thompson 1991; Griffin and Togolo 1997, as well as other works cited in the bibliography in Wesley-Smith 1992.

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

on 1 September 1975, only days before Papua New Guinea’s own gaining of independence from Australian rule on 15 September 1975. The 1970s Bougainvillean leadership was essentially moderate, with little stomach for protracted conflict, especially when it became clear that there was no prospect of international support for secession. Fearing the divisiveness of internal conflict and the possibility that other areas might follow Bougainville’s example, Papua New Guinea was conciliatory. Negotiations in 1976 saw Bougainville accepting Papua New Guinea sovereignty and provincial government arrangements constitutionally entrenched. Although Bougainville wanted to be treated as a special case, the national government feared the divisiveness of such arrangements, and the new system of provincial governments with potentially extensive legislative powers was generalized to the other eighteen provinces. The provincial government system operated reasonably effectively in Bougainville (Griffin and Togolo 1997; Ghai and Regan 2000). But, by the mid-1980s, Bougainville’s provincial government was finding that it had limited power to respond to either the ongoing tensions associated with the unresolved grievances of ordinary people concerning the mine or to the tensions associated with rapidly increasing economic inequality, due to both the mine and related economic activity and escalating small-holder cash crop activity (Regan 1998). These tensions were evident in the closely related phenomena of growing resentment of outsiders and concerns about the undermining of traditional authority and culture, something probably due mainly to rapid social and economic change, but frequently attributed to outsiders. Resentment against outsiders was fuelled by their involvement in competition with Bougainvilleans for economic resources in circumstances of growing inequality. The general direction of economic change – especially the growing economic inequality that was so much at odds with the relatively egalitarian nature of traditional society (Regan 1998) – was itself undermining traditional society. Concerns people expressed in this regard and the blame apportioned to outsiders were merely symptomatic of the deeper tensions that the provincial government was not able to manage (Ghai and Regan 2000). Nevertheless, while interest in secession continued, there was little evidence of active political mobilization around secessionist goals for most of the 1980s.



For more detailed evaluations of the origins and operation of the provincial government arrangements generally, see Conyers 1976; Ballard 1981; Ghai and Regan 1992; May and Regan 1997; May 1999; and Ghai and Regan 2000. For discussion of the operation of the arrangements in relation to Bougainville in particular, see Griffin and Togolo 1997.

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C

The Second Self-determination Dispute 1988–2001

The catalyst for a rapid and generally unexpected renewal of widespread support for secession was the police response to damage to Panguna mine property in November 1988. In turn, this was precipitated by an intergenerational dispute among mine lease landowners that had developed from the mid-1980s over the distribution of mine rents and compensation. Leaders of the frustrated younger landowners unsuccessfully seeking access to increased revenue shares developed coalitions with other groups with mine-related grievances. Damage to mine property was probably intended to apply pressure to the mine and to the central government to increase mine revenue shares rather than to close the mine permanently. There were, however, groups in the emerging coalition of dissent that did seek mine closure (Regan 2003). The weak Papua New Guinea state had limited capacity to analyze and respond to the problems facing it, and was under intense pressure due to fears of the severe economic impacts of mine closure. Although there were always some in both the political, bureaucratic, and military leadership that opposed the use of violence against the Bougainville dissidents, many regarded the emerging Bougainville conflict as simply a law-and-order issue. The initial responses involved sending in the Police Mobile Squads and, when it became clear that was not working, the Papua New Guinea Defence Force (PNGDF) was deployed. It was the almost random police violence that welded the emerging coalition of Bougainville dissidents together around an ethnic divide and put secession on the agenda again as the simple answer to a myriad of problems. The mine closed permanently in May 1989, and much government and plantation infrastructure was destroyed. Some non-Bougainvilleans were harassed, and most fled Bougainville, resulting in an effective ‘ethnic cleansing’ of 15,000 to 20,000 people, mainly from other parts of Papua New Guinea. They were accompanied, however, by a large part of the educated Bougainvillean elite, elements of which were blamed by ‘levelling’ elements of the dissidents for the growing economic inequality of 1980s Bougainville. By early 1990, the situation was out of control. A ceasefire agreement reached in March 1990 resulted in the withdrawal of all national government forces, but failed to provide the basis for some form of negotiated settlement as the national government had expected. Instead, the rebel fighters, by now known as the Bougainville Revolutionary Army (BRA), sought to take control. The BRA was made up of locally based and loosely affiliated groups developed to fight a guerrilla war. BRA members held a wide range of ideological positions. Some had as much  

For more on the issues concerning the origins and unfolding of the conflict, see May and Spriggs 1990; Spriggs and Denoon 1992; Regan 1998; 2001a. Notably mine workers disgruntled about what was seen as lack of opportunities for advancement on the part of Bougainvillean employees, as well as other landowner groups who felt under threat from squatter settlements and purchasers of customary land from elsewhere in Papua New Guinea.

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

criminal motivation as anything else. The BRA leadership saw both the Papua New Guinea and Bougainville governments as opponents, and, with the departure of the Papua New Guinea forces, virtually all forms of government administration and services collapsed quickly. Without hierarchical and well-disciplined structures, the BRA leadership experienced great difficulty in asserting control, and a climate of semi-anarchy prevailed. The national government responded to the BRA by imposing a sea and air blockade in April 1990. The BRA proceeded, however, to set up its own civilian government – the Bougainville Interim Government (BIG) – and in May 1990 made Bougainville’s second unilateral declaration of independence (UDI). Over the next few years, BRA and BIG efforts to seek international recognition of Bougainville’s secession were unsuccessful. From mid-1990, the conflict gradually developed two main dimensions –between Papua New Guinea and Bougainville, and between Bougainville groups. Localized armed opposition to the BRA developed. Leaders in various areas sought the return of the Papua New Guinea forces to assist them. The first troops landed in Buka (a large island just north of the main island of Bougainville) in September 1990, and their presence gradually expanded to mainland Bougainville areas from 1991. The situation soon developed into something of a low intensity civil war between armed Bougainvillean groups – the BRA versus a gradually developing coalition of armed groups eventually known as the Bougainville Resistance Forces (BRF). At the same time, the BRA continued their ever-morebitter secessionist guerrilla war. The BRF, and the leaders of the communities they were based in, opposed the secessionist goals of the BRA, some because of a recognition of economic and other benefits of belonging to Papua New Guinea (something particularly true of the educated elite leadership from Buka, an area where secessionist support had long been less pronounced than in other parts of Bougainville), but many not so much for ideological reasons but simply because they feared being part of an independent Bougainville dominated by their opponents in the BRA and BIG. The years 1990 to 1997 witnessed complex and costly conflict. An unknown number of people died – perhaps as many as several thousand. There was massive disruption of normal life, with little in the way of basic services available. About one third of the Bougainville population was displaced, and was forced to live in refugee camps. Bougainville factions opposed one another in part through parallel government and military institutions – BIG, councils of chiefs (local governments established by the BIG), and the BRA, versus the Bougainville Transi-



Probably well over 1,000 in combat, others through extra-judicial executions on all sides, and an unknown number of deaths as a result of, or contributed to, by the Papua New Guinea blockade. However, reports of 15,000 to 20,000 deaths are almost certainly exaggerated.

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tional Government (BTG), councils of elders (local governments established by the BTG), and the BRF. By early 1996, it appeared that the parties were so far apart and the conflict and divisions escalating so rapidly that a peace process and a settlement seemed most unlikely. Further, the BRA seemed to have a decided advantage in the conflict with the PNGDF. At the same time, however, there was increasing evidence of war-weariness among the population of PNG generally, and Bougainville in particular. However, although the conflict escalated during 1996, developments from late 1996 and in the first part of 1997, documented elsewhere, resulted in a peace process developing from mid-1997. III Peace Process – Internal Dynamics and External Actors One of the key aspects of complex power-sharing is the active engagement of external actors in the making, monitoring, and management of the agreement that ends a self-determination dispute. In the Bougainville case, such actors have played major roles in the development of the key agreement, the Bougainville Peace Agreement of August 2001. It must be emphasized, however, that despite the significant roles of external actors, it was in fact the parties to the conflict that provided the impetus for the peace process. Despite the deep divisions generated by the conflict, there were enough leaders on all sides convinced that the dangers of continued violent conflict outweighed any likely benefits (Regan 2001a). Further, it was also the parties themselves that recognized that the depth of divisions between them was such that external actors were required to assist in various aspects of facilitating the peace process, as well as aspects of negotiation and implementation of the political settlement. There was no need for coercion, or even significant pressure, from the international community. On the other hand, the divisions between the parties were so significant that the first two years of the process – mid-1997 to mid-1999 – were devoted to consolidating the process rather than to efforts to negotiate a political outcome. Both sets of divisions had to be addressed – those among Bougainvilleans and those between Bougainville and Papua New Guinea (Regan 2002b). Before political negotiations between Bougainville and Papua New Guinea could be held, a common Bougainville negotiating position had to be developed. The process of unifying Bougainvillean positions was not without its difficulties. Splits in the Bougainville groups supporting the peace process occurred during 1998–1999, resulting in significant elements of those that supported integration into Papua New Guinea refusing to join the coalition of ‘moderate’ groups (including most  

The BTG was the provincial government for Bougainville, re-established under national law with a name change in 1995, the prior Bougainville provincial government having been suspended in 1990. See Regan 1997; 2001a; Dinnen, May, and Regan 1997; Dorney 1998; O’Callaghan 1999; Adams 2001; Carl and Garasu 2002.

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

BRA and BIG leaders) that began negotiating with the national government in June 1999 for a political settlement. Negotiations and reconciliations among the leadership were required before the dissident elements joined the negotiations in December 1999 (Regan 2001a; 2002b). However, the most serious and, in mid-2003, ongoing unity problem has involved Francis Ona, the original leader of the BRA and president of the BIG. He has refused to support the peace process, claiming Bougainville is already independent as a result of the UDI he made in May 1990, and declaring that he leads a Republic of Me’ekamui. Elements of the BRA supporting Ona formed the Me’ekamui Defence Force (MDF) in 1998, and do not support the weapons disposal process (below). His group has some control over an area of the mountainous interior of Bougainville around the mine site, and some pockets elsewhere. While the refusal of Ona and his supporters to join the process probably assisted the Bougainvilleans in their negotiations with the national government (highlighting the continued depth of support for secession), they remain a destabilizing element in the Bougainville political situation, and could contribute to what can be expected to be considerable difficulties in the implementation of the political agreement. Turning to the roles of external actors, several aspects require brief comment. First, the main external participants have been the governments of countries from the Pacific region – especially Australia and New Zealand, but also Solomon Islands, Fiji, and Vanuatu. The United Nations has provided a small observer mission since 1998 – the United Nations Observer Mission on Bougainville (UNOMB). Without extensive international input to facilitation, trust-building, mediation, and some support in implementation, it is difficult to see how the peace process could have continued for long. Division, distrust, and bitterness generated by the conflict made all sides look to external actors to assist them in the process of resolving the conflict, and to do so from as early as 1990. For their part, the governments from the region have not felt any significant pressure to impose a settlement. They have, in general, been cautious about their involvement, generally acting only in response to invitation from the Papua New Guinea government and the Bougainville groups. Both Australia and New Zealand had had little prior experience of responding to conflict in their region and so needed to develop new policies and capacities. The actual roles played by the external actors have been discussed elsewhere (Regan 2001a; 2001b; Adams 2001; Carl and Garasu 2002; Regan and May 2001). Their main direct contribution has been the provision of unarmed monitors of the truce and ceasefire arrangements agreed between the parties in October 1997 and April 1998, respectively (the Truce Monitoring Group (TMG) and the Peace Monitoring Group (PMG)). 10 In this role, they have been supported by the gov 10

Something akin to ‘sacred land’ in the Nasioi language of Central Bougainville. On the origins and development of the TMG and the PMG, see Regan 2002b, for discussion of the operation of the TMG, see Adams 2001, and for operation of the PMG in its first two years, see Wehner and Denoon 2001.

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ernments of Fiji and Vanuatu, who have provided small numbers of personnel, thereby ensuring that support for the peace process had a strongly regional flavour, and also ensuring that Australia and New Zealand could not be criticized for excessive interference in the affairs of Pacific Island states (Regan and May 2001). Solomon Islands played an important role early in the process, especially through the taking of chairing roles in early negotiations. The roles of New Zealand and Australia went well beyond the provision of monitors. They also facilitated the peace process, through hosting talks and funding many aspects of the process within Papua New Guinea. They also mediated in negotiations at crucial points – New Zealand in the critical period when the process was being established (1997–1998), and Australia during the political negotiations. Australian and New Zealand involvement was driven largely by concerns about the Bougainville conflict contributing to the risks of instability in the region. Since the 1986 coups in Fiji, there has been a growing perception that instability in the southwest Pacific could threaten Australian and New Zealand regional interests. Both countries also share concerns that the state in Papua New Guinea is so weak that it could be at risk of collapse in the not-too-distant future, and that the Bougainville conflict was placing additional stresses on an already weakened state that needed to be ameliorated. An additional factor for New Zealand was an interest in asserting a greater role in the Southwest Pacific, as opposed to its ‘traditional’ sphere of influence in the Polynesian Pacific (Regan and May 2001). Since the peace process has begun, significant instability in neighbouring Solomon Islands – that has in some ways been influenced by the example of the conflict in Bougainville – has added to such concerns, especially as there continues to be some interest on both sides of the border in the possibility of union between Bougainville and the western parts of Solomon Islands. In June 2003, concern about the possible collapse of the state in Solomon Islands in the aftermath of ethnic violence, a June 2000 coup and the subsequent criminalization of the state by ethnic militias has encouraged the Australian government to announce a new policy initiative of ‘cooperative intervention’, which from July 2003 has seen it become far more directly involved in the running of Solomon Islands, including initial police action (with military support) to disarm ethnic militias and restore the integrity of the Solomon Islands police system, and the provision of personnel and other forms of support to build state capacity.11 New Zealand is also actively involved in these actions, and, following the model that worked so well in Bougainville, in an effort to ensure the legitimacy of the initiative, other Pacific states (including Papua New Guinea) are contributing either or both military and/or police personnel. Second, it was the BRA and the BIG, rather than the Papua New Guinea government, that initially sought the involvement of international actors. This was in part because of distrust of the Papua New Guinea forces, but was also part of 11

For more on the problems in Solomon Islands, see Dinnen 2002; Wainwright 2003. For more on the new Australian policy, see Wainwright 2003; O’Callaghan 2003; Kelly 2003.

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

broader efforts made by the BRA and BIG from the early 1990s to ‘internationalize’ the conflict, in the hope of fostering international support for secessionist goals. Recognizing this strategy, Papua New Guinea, although open to regional facilitation of the process, was also concerned that involvement of external actors might undermine national sovereignty. In particular, there was opposition towards direct involvement of the United Nations until early 1998, and very strong pressure from the Bougainville side was needed to get Papua New Guinea agreement for establishing the UNOMB in the January 1998 Lincoln Agreement. On the other hand, once the involvement of the United Nations was agreed, the national government was scrupulous in its efforts to facilitate that involvement. Third, mediation by external actors was of critical importance at two points during the political negotiations in resolving the most divisive issue in the political negotiations – Bougainville’s demand for a referendum on independence. First, in March 2000, when the Papua New Guinea government refusal to accept that the referendum issue should even be on the agenda for discussion was threatening to lead to deadlock, the UNOMB mediated an agreement to include that issue on the agenda. Then, in December 2000, there was deadlock again, this time over the way in which the referendum issue should be dealt with. At this point, the Australian Minister for Foreign Affairs and Trade, Alexander Downer, played a crucial mediating role in proposing that the national government accept a referendum deferred for at least ten years, provided that the Bougainvilleans agreed that the outcome was not to be binding but would instead be subject to the ultimate authority of the national parliament. The essence of his argument to the national government was that if the outcome of the referendum was subject to the authority of the parliament, then national sovereignty would not be compromised. The essence of his argument to the Bougainvillean groups was that there was never any legal provision making the outcome of the East Timor referendum of 1999 binding, and that rather it was the international community that ensured that the outcome was honoured once it was clear that an overwhelming majority of East Timorese wanted independence. Anxious to avoid the dangers of deadlock, both sides accepted the proposed compromise, opening the way to resolution of all other outstanding issues.12 In the process, however, high expectations were created in Bougainville about the international community playing an ongoing role as guarantor of the Bougainville Peace Agreement, a role expected to extend for the ten to fifteen years within which the referendum must be held. IV The 2001 Agreement – Beyond Autonomy The 2001 Bougainville Peace Agreement (the 2001 Agreement) aims to end the self-determination dispute in two distinct ways. The first is by an agreement for the holding of a non-binding referendum for Bougainville on the self-determination question. The second is by providing Bougainville with the ability to decide 12

For discussion of the negotiation of the political settlement, see Wolfers 2002; Regan 2002b.

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its own future in another way, through the exercising of a high level of autonomy in the period until the referendum is held. Papua New Guinea’s reluctant concession of the almost unique combination of constitutionally-guaranteed referendum and complex autonomy arrangements is, in part, based on the hope that the operation of those latter arrangements will not just reduce the likelihood of renewed support for opposed secession (including support for the dissident group based around Francis Ona’s Republic of Me’ekamui), but will also encourage support for integration when the referendum is eventually held (Regan 2002a). The 2001 Agreement also provides for immunity from prosecution for crimes committed in connection with the conflict by members of all combatant groups, and for the demilitarization of Bougainville. These, and a number of other associated arrangements, are provided for in constitutional laws implementing the Agreement that were passed by the Papua New Guinea parliament in March 2002 – an amendment to the Papua New Guinea Constitution and the Organic Law on Peace Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum (the Organic Law).13 The former law offers unusual protection to the arrangements in that it provides that they cannot be changed unilaterally by the Papua New Guinea parliament, but also require a vote of the Bougainville legislature – a form of protection for a ‘sub-national’ political unit usually found only in highly federal systems. There are a number of other unusual characteristics of the 2001 Agreement that together take it far beyond mere autonomy of the kind provided for under the 1976 Agreement. These include: complex dispersal of power in relation to Bougainville among the Papua New Guinea national government and a proposed autonomous Bougainville government; defined arrangements for management of intergovernmental relations between the national government and Bougainville, including dispute settlement mechanisms and guarantees of a high degree of independence for Bougainville from national government direction and control; and provision for roles for external actors, especially, but not only, in the implementation of aspects of the Agreement. A

Responding to the Self-determination Dispute through a Deferred Referendum on Independence

The extent to which the 2001 Agreement and the constitutional laws implementing it provide for sharing of power between Papua New Guinea and Bougainville is evident in the fact that even the conduct of the referendum is to be a responsibility shared between the electoral authorities of both governments. The ref13

See Papua New Guinea National Gazette No.G143, 12 November 2001. Most provisions of those laws came into operation only from August 2003, as provisions linking the weapons disposal process and the coming into operation of the bulk of the national constitutional laws provided that they came into operation only when the second of the three stage weapons disposal process was verified by the UNOMB as completed.

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

erendum is to be on the future political status of Bougainville,14 and the choices offered must include independence for Bougainville. It is to be held among Bougainvilleans (people entitled to vote in national elections in Bougainville as well as non-resident Bougainvilleans) no earlier than ten years, but in any event no later than fifteen years, after the first election of the autonomous Bougainville government. The actual date for the referendum within that ten to fifteen year period is to be agreed between the autonomous Bougainville government and the national government, taking account of the achieving of standards of good governance in Bougainville and progress on weapons disposal. International observers are to be invited to observe the conduct of the referendum, and are guaranteed full and free access to all aspects of the process. The outcome of the referendum will be subject to the final decision-making power of the national parliament, but must also be the subject of consultation between the autonomous Bougainville government and the national government. To ensure that the holding of the referendum was fully guaranteed as soon as the constitutional laws came into operation, the entire machinery and procedural requirements for the holding of the referendum have been included in the Organic Law. It can be argued that the combination of a referendum on independence together with power-sharing may undermine the effectiveness of power-sharing as a device for responding to a self-determination dispute. The main issue here is that the promise of a referendum explicitly keeps the self-determination dispute on the agenda, so that power-sharing is not accepted by the secessionists as the complete answer to their self-determination claims. There are two main responses to this view. The first is that in circumstances such as prevail in Bougainville, where the secessionist fighters believed that they had the military advantage before the peace process and where a large (but never accurately measured) proportion of the population continue to support secession, it can be difficult to respond to the self-determination dispute by power-sharing arrangements alone – there may also need to be some other provision enabling the self-determination issue to be addressed. Second, there is a logic to the pairing of referendum and power-sharing through territorial autonomy as a solution to a bitter conflict. This is because the provision for the referendum should encourage the national government to do all that it can to ensure that the autonomy arrangements work well, in that way maximizing the likelihood that Bougainvilleans will recognize the advantages of Bougainville being integrated into Papua New Guinea, and in this way encourage the maximum possible vote in favour of integration when the referendum is held. B

Responding to the Self-Determination Dispute through Complex Powersharing

That the agreed autonomy arrangements are intended to provide one of two avenues to self-determination is explicitly recognized in the Preamble to the draft 14

Constitution ss338-343, and Organic Law, ss52-63 and Schedule 1.

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Constitution for the Autonomous Region of Bougainville that is in the process of being developed in mid-2003.15 The autonomy arrangements are radically different from either the existing or previous Papua New Guinea provincial government arrangements, and apply only in Bougainville, and not in any of the other parts of Papua New Guinea. There are at present nineteen provinces in Papua New Guinea, including Bougainville. Under the autonomy arrangements, Bougainville will no longer be regarded as a province and its government will not be a provincial government. Indeed, Bougainville will have the power to determine the names for the autonomous area and of its government. Although the arrangements are intended only to apply in Bougainville, there is, however, pressure for the arrangements (or parts of them) to be extended to other parts of Papua New Guinea, pressure that the national government can be expected to resist. 1 Territorial Autonomy It is because the Bougainville case involves an ethnic group that comprises a small minority of the Papua New Guinea population that is concentrated in a defined geographical area where that group constitutes an overwhelming majority, remote from other parts of Papua New Guinea, that both the 1976 and 2001 agreements have concentrated on territorial autonomy, and have taken little account of measures for integration into the central government. While the influx of migrants from other parts of Papua New Guinea was a factor in the intensification of ethnic tensions in Bougainville in the 1980s, the effective ‘ethnic cleansing’ that occurred in 1989–1990 meant that there was little need to consider ethnic minorities in the 2001 settlement. Because of the focus of the Bougainville leadership on territorial autonomy rather than integration, they paid little attention to provisions on proportionality in the operation of national public sector institutions or areas of activity. However, the Agreement does demonstrate concern for a degree of integration in relation to key institutions (public service, police, judiciary) in respect of which the national government conceded to Bougainville the right to establish separate institutions. Further, the combination of the geographic concentration of the Bougainville population with the considerable cultural and linguistic diversity within that population meant that there was little need for either of the agreements to deal with many of the difficult issues about powers over language, education, culture, and so on that so commonly need to be addressed in power-sharing agreements. There are, of course, some people from other parts of Papua New Guinea still resident in Bougainville, and some thousands of Bougainvilleans live elsewhere in Papua New Guinea. Their rights and interests are not the subject of specific protections in the 2001 Agreement. Rather, the human rights provisions of the Agreement – which ensure the continued operation of the quite extensive protections of the Papua New Guinea human rights regime in Bougainville – were assumed to provide sufficient protection to both groups. 15

‘Second draft of the Constitution of the Autonomous Region of Bougainville. Bougainville Constitutional Commission, 25 March 2003.

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

2

Institutional Arrangements – Bougainville Choices of Government Structures Bougainville has the power to devise its own constitution, which can make provision for structures of the proposed autonomous Bougainville government, inclusive of the name of the government (Constitution ss279-287). It must do so within the broad parameters provided by the national constitutional laws (for example, requirements for a mainly elected legislature and adherence to basic standards of good governance). The Agreement requires the proposals for the new Bougainville Constitution to be developed by a broadly representative Constitutional Commission, and then considered and adopted by a Constituent Assembly, before being endorsed by the national government (which can only refuse to endorse it if the proposed Bougainville Constitution fails to meet the requirements of the national constitutional provisions). The Constitutional Commission was established in September 2002, and at the time of writing (August 2003) has published two drafts of the proposed Constitution, but is yet to finalize its proposals. 3 Institutional Arrangements – Bougainville Representation at the Centre The original Bougainville negotiating position, adopted in June 1999, involved proposals for essentially confederal arrangements under which Bougainville would have had power over almost all matters other than defence and foreign affairs, and would also have had very limited representation at the centre – just one representative in the national parliament instead of the present four, and that one would have been chosen by the Bougainville legislature rather than by general election by Bougainville voters as at present. The Papua New Guinea government opposed the proposal for reduced Bougainville parliamentary representation at the centre, arguing for the need for continued Bougainville representation at the same level as other parts of the country. It was, however, the need to build unity among the Bougainville parties that resulted in the dropping of the proposal for a single representative in the parliament. The divisions that developed in 1998–1999 among Bougainville groups supporting the peace process saw three of the four elected Bougainville members of the national parliament aligning with Bougainville groups that supported integration into Papua New Guinea. In December 1999, the coalition of groups that had developed the initial Bougainville negotiating position, and had begun negotiations without some of the pro-integration elements, decided to drop the demands for reduced representation at the centre. They did so as part of efforts to make the negotiating position more attractive to the pro-integration groups, and especially the three members of the parliament. The issue remains controversial, however, and the first draft of the Bougainville Constitution released by the Bougainville Constitutional Commission in January 2003 included provision for the autonomous Bougainville government to negotiate with the national government with a view to securing change to the national Constitution providing for a reduction in Bougainvillean representation in line with the original 1999 proposals. The Commission was persuaded to drop this proposal from the second Draft, on the basis that in the early years of the im-

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plementation of the autonomy arrangements it was likely to be to Bougainville’s advantage to have the strongest possible representation at the centre. There are a number of additional provisions in the Agreement that emphasize Bougainville’s right to participate at the national level. Existing national institutions, such as the police, the defence force (PNGDF), and the public service, will continue to be national institutions that recruit in and from all parts of Papua New Guinea (including Bougainville) even if Bougainville chooses to establish separate institutions. The inclusion of these provisions was at the initiative of the national government, which was at pains to ensure that, as far as possible, Bougainville should be integrated into the national institutional arrangements in the same ways as all other parts of the country. It was the same concern that underlies a number of complex provisions in the 2001 Agreement intended to encourage cooperation by Bougainville with the national government in the exercise of powers to establish separate institutions such as the police, courts, and public services. 4 Complex Layering of Authority – Powers and Functions During negotiations for the 2001 Agreement, the national government opposed Bougainvillean proposals that there should simply be one list of a few powers vested in the national government, with all other powers subject to overriding Bougainville laws. While the national government was prepared to concede that most powers should be available to Bougainville, it wanted both a far more extensive list of national powers in relation to Bougainville, and two separate lists of powers, one for each government, and provision for later allocation of any unspecified powers (those not on either list, mainly involving powers not then considered) on the basis of the principles underlying the two lists. The matter remained unresolved until late in the negotiations, when Bougainville reluctantly conceded the two lists arrangement with the later allocation of unlisted powers, but only once it had gained agreement to the inclusion on its list of powers those it regarded as of central importance (including police, judiciary, and public service). The result is that the powers and functions relating to Bougainville will be shared, although the bulk of the powers that might be dealt with by law will be available to Bougainville. The national Constitution (s289(1)) provides a list of seventeen national government powers, mainly concerning subjects related to international relations or maintaining the integrity of the state and of a single economic system. These include defence and foreign affairs, external migration, currency, central banking, customs, international trade, international shipping, and international civil aviation. Most other subjects conceivably capable of being covered by law are included in a list of fifty-nine subjects available to Bougainville, including land, mining, environment, local government, and so on (Constitution s290). While each government can make laws on the subjects on the list reserved to the other, such laws cannot be inconsistent with those of the government on whose list the powers appear (Constitution s296(2)) – and so ultimate authority will lie with the government on whose list the power in question appears. Re-

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

sponsibility for subjects not on either list (in practice, those not thought of at the time the two lists were negotiated) will be divided between the two governments, in line with the principles underlying the two lists (Constitution s292). The powers on the Bougainville list are available to rather than directly vested in the Bougainville government in that most will initially remain vested in the national government, but will be transferred to Bougainville at its initiative under a process that requires the giving of twelve months notice to the national government (to allow for necessary arrangements to be made in relation to budgets, staff, assets, etc.) and the drawing up of joint implementation plans providing for the development of the capacity in Bougainville needed to exercise the new powers and functions (Constitution ss295 and 297; Organic Law ss4-6). These provisions, when combined with the limited guarantees made in relation to the provision of fiscal resources to Bougainville, add to the complexity of the arrangements. They mean that there will probably be some uncertainty about the process of transfer of authority to Bougainville, and a need for ongoing consultation and even negotiation, especially in relation to significant areas of power such as police, courts, public service, land, mining, and so on. The Agreement envisages that primary responsibility for dealing with such matters rests with the Joint Supervisory Body. While the focus in the Agreement and the constitutional laws is on the two lists of powers, in fact complex provisions about how a number of powers that appear on both lists are to be exercised mean that although there is no specific category of concurrent or shared powers, in effect there is a third category of powers that could be classified in that way. This is a result of the inclusion of a number of provisions that aim for the protection of the interests of one or other government despite the location of a particular power on the list of the other government. These are provisions intended to place limits on, or encourage cooperation between the governments in, the exercise of a power. Thus, there are specific limits on the use of some powers vested in the national government, or provision for a limited Bougainville role in the exercise of some aspects of particular national government powers in relation to Bougainville. For example, while defence, foreign relations (including foreign aid), and telecommunications are national government powers, the Agreement limits the future deployment of the PNGDF to Bougainville without the consent of the Bougainville government, and gives Bougainville both some rights in relation to the development of telecommunications, and some foreign affairs-related powers. Conversely, there are a number of subjects where Bougainville will be able to hold authority only subject to specific limits, or to detailed requirements on cooperation with the national government, which effectively means that these powers will be shared between the levels of government. These include criminal law, human rights, regulation of foreign investment, judicial administration, police, the public service, and prisons. The most complex cooperative arrangements were proposed by the national government as a way of making more acceptable (to the national government) some of the more controversial aspects of Bougainville’s autonomy demands

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– regarding powers to establish separate police, public service, correctional service, and judicial bodies. Such powers were only agreed subject to provisions for cooperative links with equivalent national institutions, arrangements intended to maintain similar standards in Bougainville to those that apply at the national level, thereby ensuring a degree of integration between key national government administrative and legal and judicial institutions and their equivalent institutions in Bougainville (Constitution ss305-318; Organic Law ss7-37). a Administration of Justice Under the 2001 Agreement, Bougainville will have the power to establish its own courts system, up to a level equivalent to the National Court – the highest court that at present can hear matters in the first instance. The highest Papua New Guinea appeals court – the Supreme Court – will remain the ultimate court of appeal in relation to any new Bougainville courts, thereby ensuring a reasonable degree of integration of any Bougainvillean judicial system into the national system. Judges for the Bougainville courts must be appointed by an independent judicial appointments body, and, in order to minimize the need for duplication, may hold concurrent appointments in the national government judicial system. The capacity of the Bougainville government to develop its own judicial system will depend greatly on its financial resources. b Police Bougainville will have the power to establish its own police service, separate from the Papua New Guinea police. It must be headed by a person appointed through an independent appointment process, and members of the Bougainville police are to be appointed on merit. Policing standards compatible with those applicable at the national level will apply in Bougainville. A Bougainville police service is to have access to specialist services available from the national police. The functions of the Bougainville police will include enforcement of both Bougainville and national laws. Under transitional arrangements, prior to establishing a separate police force, Bougainville will have the power to direct and control the national government’s provincial police commander for Bougainville. The ability of the autonomous Bougainville government to develop a separate police service will also depend greatly on financial capacity, as additional costs (above the existing costs of policing adjusted upwards to normal policing levels in other parts of the country) involved in establishing such an service will not be met by national government grants. c External Relations and Trans-border Cooperation Among the more unusual aspects of the 2001 Agreement and the implementing constitutional laws are those that vest the autonomous Bougainville government with some powers in relation to foreign affairs, and impose some limits on the exercize of national government foreign affairs powers in relation to Bougainville. These aspects of the Agreement make the quality of Bougainville’s autonomy sig-

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

nificantly different from most autonomy agreements and blur the boundaries of sovereignty. First, the autonomous government will be able to enter into international agreements under the authority of the national government (Constitution s293(7)). Second, it will be able to obtain foreign aid, with the national government required to approve such aid secured by Bougainville that does not reduce the value of aid already available to Papua New Guinea, and “subject to overriding foreign policy considerations” (Agreement clause 175; Constitution s327). Third, Bougainville can send representatives or observers to regional meetings and organizations with consent from Port Moresby (Agreement clause 70). Fourth, arrangements are to be developed to allow Bougainville to “participate or engage directly in the negotiation of international agreements of particular relevance to Bougainville” (Agreement clause 73; Constitution s293(7)). Fifth, Bougainville will have a representative in any national government delegation negotiating either border agreements with Solomon Islands (Agreement clause 77) or access and other fisheries agreements regarding Bougainville maritime territory or areas of the Papua New Guinea territorial seas beyond the three nautical mile limit of Bougainville maritime territory or in the area of the Exclusive Economic Zone (EEZ) and the continental shelf associated with Bougainville territory (Agreement clause 85). With regard to limits on the national government powers in relation to foreign affairs, while all Bougainville powers will be subject to Papua New Guinea’s international obligations (Constitution s293(2)), the national government will be required to consult Bougainville before entering into new obligations, and international agreements with a purpose of altering the autonomy arrangements will take effect only with Bougainville consent (Constitution s293). The Agreement also provides for development of equitable arrangements for sharing revenues from fishing and other activities in the EEZ (clauses 8 and 86). d Human and Minority Rights It was with considerable reluctance that the Bougainville parties negotiating the 2001 Agreement dropped their original demand for the power to determine a human rights regime separate from that provided for under the Papua New Guinea Constitution. Of particular interest here was the ability to limit rights of freedom of movement into and within Bougainville for non-Bougainvilleans. Of course, the Papua New Guinea government negotiators were opposed to such proposals, and argued for the need to protect the rights of all minorities – including non-Bougainvilleans in Bougainville, and Bougainvilleans living in other parts of Papua New Guinea. Interestingly, it was not arguments about protection of minorities that eventually persuaded the Bougainville leaders to accept the existing Papua New Guinea rights regime and abandon ideas of direct limits on freedom of movement. Rather, it was concern about the need to maintain the support of the international community if the 2001 Agreement is to be implemented in full. The leadership accepted the arguments of their own advisers that such support could be endangered if Bougainville were to develop policies that could be regarded as discrimi-

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natory. Bougainville therefore agreed to accept the existing Papua New Guinea human rights regime, inclusive of the right to freedom of movement. Bougainville demanded, however, and the national government eventually accepted, that not only would the autonomous government be able to provide its own regime for enforcement of rights (Constitution s304(2)), but also that the Bougainville legislature would have the same extensive powers as the national parliament to pass laws qualifying human rights (Constitution s303). This last power gives Bougainville potentially extensive powers to limit rights, provided this is not done in a discriminatory way, and is done within the limits laid down in s38 of the Constitution. This power may enable Bougainville to pass laws that involve indirect limits on most rights, including that to freedom of movement – for example, laws on such subjects as land, town planning, and employment could provide restrictions that act as effective limits on that right. e Financial Arrangements The funding arrangements (Constitution ss324-329; Organic Law ss38-51) are in many ways the weakest part of the autonomy arrangements, mainly a result of a combination of the poor economic base in post-conflict Bougainville without the Panguna mine, and the fiscal crisis facing a Papua New Guinea government to some degree crippled by ‘Dutch disease’ after many years of reliance on revenue from large mining and petroleum projects. In summary, the national government has promised to fund Bougainville’s autonomous government through a main grant calculated on the basis of the costs of existing functions as well as the costs to the national government in the year before the transfer of new powers or functions transferred to Bougainville and adjusted to take account of the need for services in Bougainville to meet average national standards. In addition to certain other grants, Bougainville will have far wider taxing powers than existing provincial governments, extending to personal income tax, export taxes, excise, and so on. These arrangements are unusual in comparison with most autonomy arrangements, and reflect the intense pressure the Bougainville negotiators applied for the arrangements to be as close as possible to independence. The arrangements are ‘weak’ in the sense that Bougainville will not be able to readily develop its own revenue base sufficient to support a high degree of operational autonomy, nor is it likely that the national government will have available significant fiscal resources to transfer to Bougainville, nor is there a strong constitutional guarantee that the national government will make payments in accordance with the grant calculation arrangements in the national constitutional laws. The weakness of the financial arrangements is a concern, given the high expectations of autonomy among Bougainvilleans. There is a perception in Bougainville that donors among the international community can be expected to provide the funding needed to ensure that the autonomy arrangements work reasonably well, and, under the Agreement, Bougainville has some rights to deal directly with aid donors. However, the main donor at present, the Australian government, is unlikely to be willing to allocate more funds to Bougainville, both because Papua New Guinea’s fiscal crisis is putting pressure on all Australian aid funds to the

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

country, and because the Australian-led intervention in Solomon Islands will be costly, and so will limit the availability of Australian aid funds in the Pacific region as a whole. There are unlikely to be any other major aid donors that will see Bougainville as a priority.16 5

Management of Complexity – Dispute Settlement and Limited National Control The Agreement provides for a system for intergovernmental relations intended to ensure that the problems that can be expected to arise as a result of the complex layering of authority can be managed. It is a system comprising several main elements: • A ‘joint supervisory body’ (Constitution s332) made up of representatives of both the national government and Bougainville that is to be responsible for: – first, managing the implementation of autonomy; – second, providing the first stage in the dispute settlement process; and – third, for dealing with some aspects of the division of powers and functions unable to be resolved during the negotiations for the 2001 Agreement. • Two separate dispute settlement mechanisms – one for the period when the Agreement is being implemented, and another applying once the autonomy arrangements are in place – which can be used to resolve both disputes relating to autonomy and any that may arise later in relation to the implementation of the referendum arrangements. • Strict limits on the power of the national government to direct and control the Bougainville government. • Provision for a number of controversial issues that could not be resolved during the negotiations to be deferred to later processes, including: – consultation both on the extension of Bougainville’s maritime territory beyond the limit of three nautical miles reluctantly agreed to by Bougainville (2001 Agreement clause 9), and on the development of a new Criminal Code statute by Bougainville (2001 Agreement clause 297); – reference to the Joint Supervisory Body of any concern by Bougainville to either change national laws on telecommunications or assume additional powers in relation to telecommunications (2001 Agreement clauses 93-100); – reference to a joint commission of issues about human rights and other implications of Bougainville proposals to enable courts and local governments to require clan-groups to meet customary obligations in relation to clan members convicted of criminal offences and certain other 16

Australia has been contributing about AUD 20 million per year in aid to Bougainville since 1998. The next largest donor is New Zealand, which contributes about AUD 5 million per year.

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issues relating to Bougainville powers over human rights (2001 Agreement clauses 128-133); and provision for development of a mechanism to enable Bougainville to participate in the negotiation of international agreements of relevance to it or to negotiate such agreements on its own behalf (Constitution s293(7)).

In relation to disputes over the implementation of the Agreement occurring before the autonomous Bougainville government is established, the parties are required to consult where differences occur, and if that fails to resolve the matter, a “neutral third party” may be appointed by agreement, with involvement of the courts available as a last resort (Agreement clause 332). Further, the Agreement (clause 335) records the fact that the main body established under earlier agreements to facilitate the cooperation of the parties in the peace process – the Peace Consultative Committee (which is chaired by the Director of the UNOMB) – can deal with matters within its mandate or that the parties refer to it during the implementation period. Once the autonomous Bougainville government is established, the joint supervisory body is to be used as the first stage in a dispute settlement procedure which either side can invoke, where consultation is required as a first step, failing that mediation or arbitration may be attempted. As a final stage in the process, the courts may become involved in some circumstances (Constitution ss333-6). In relation to coercive powers, not only will the national government have no power to unilaterally alter the constitutional arrangements but it will also have no power to suspend or to withdraw powers and functions from the autonomous Bougainville government (Constitution s331(c)). However, the national government will have strictly limited powers to withhold funds as a last resort in cases of serious financial mismanagement by the autonomous government of grant funding (Constitution s329; Organic Law s51). The severe limits on control powers contrast sharply with the extensive powers the Papua New Guinea government has to suspend and withdraw powers from existing provincial governments. Indeed, it is not uncommon for national governments in federal systems to have suspension powers over state governments, as in the cases of India and Malaysia, and the absence of such powers in relation to Bougainville is an indication of the unusually high degree of autonomy provided by the 2001 Agreement. C

Protecting the Constitutional Arrangements from Unilateral Change

The Bougainvillean negotiators sought assurances that the constitutional arrangements implementing the 2001 Agreement (particularly those concerning the referendum and autonomy) could not be changed unilaterally after enactment. Hence, they argued for, and the national government eventually conceded, what became known as ‘double entrenchment’. This involves provisions concerning the amendment of the constitutional provisions relating to Bougainville that

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

are additional to those applying to other parts of the constitutional laws.17 The Bougainville legislature would need to approve any proposed amendment before it becomes law – a two-thirds majority vote in the Bougainville legislature is required for amendments to the provisions of the Constitution concerning the referendum, and a simple majority vote of that body in relation to other provisions of the Constitution or to the Organic Law (Constitution ss345-346). D

Demilitarization of Bougainville

The goal of demilitarization of Bougainville is in large part related to self-determination, in that demilitarization is seen as essential if there are to be fair and democratic processes in establishing and operating autonomy and in holding the referendum. The demilitarization arrangements also involve important and unusual restrictions on the powers of the national government in relation to defence. The goal is pursued through a number of separate arrangements, the key features of which are: • A multi-staged process of disposal of weapons by armed Bougainville factions (Agreement clause 329); • In association with the weapons disposal process, complete withdrawal of the PNGDF and the Police Mobile Squads from Bougainville; • Limits on the future deployment of PNGDF (Agreement clauses 60-68) and Police Mobile Squads (Agreement clause 222); and • Limits on Bougainville’s ability to establish armed police mobile squads (should it choose to exercise its power to establish a separate police force). The weapons disposal process has three main stages, and responsibility for supervision of its implementation is vested in external actors – the UNOMB (with assistance from the PMG until its withdrawal in June 2003). There are complex and inventive two-way linkages between the implementation of those various stages, the implementation of the autonomy arrangements provided under the 2001 Agreement, and the beginning of the period within which the referendum must be held. The linkages are intended to provide incentives to the parties to implement core provisions of the Agreement – first, to the national government to pass the constitutional laws implementing the Agreement, and, second, to the Bougainville factions to implement the weapons disposal process. The first stage of the process involved weapons being held in locked containers with the keys under the control of the BRA or BRF unit commanders whose personnel are submitting the weapons, with the PMG registering the weapons, and the containers being sealed by the UNOMB for verification purposes. The second stage involved the weapons being moved to a smaller number of double-locked 17

Under the Papua New Guinea Constitution, these include two separate votes of the national parliament at least two months apart and with special majorities required, ranging from an absolute majority for provisions of less central importance to three quarters absolute majorities for provisions seen as of fundamental importance.

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containers, with one of the keys held by the UNOMB. It is here that the two-way linkages first came into operation, in that the movement of weapons from stage one to stage two containment only began when the constitutional laws implementing the Agreement had been passed. On the other hand, most provisions of those laws only came into operation when the UNOMB verified that stage two was complete. Verification was announced by the Director of the UNOMB on 30 July 2003, and the bulk of the provisions of the national constitutional laws came into operation at the beginning of August 2003. The third stage involves consideration of the final fate of the weapons, with the parties required to reach a decision within four and a half months of the constitutional laws coming into operation (by December 2003). This stage has been left extremely open-ended, even ambiguous, reflecting difficulties in reaching agreement on the final fate of the weapons when the parties were negotiating the weapons disposal agreement in April–May 2001. While the BRF and the national government wanted destruction of weapons before election of the autonomous government, the BRA still suspected the intentions of the PNGDF (who, at that stage, had not withdrawn from Bougainville), and also envisaged that their weapons might ultimately become those of the defence force of an independent Bougainville. The national government and the BRF were able to live with the ambiguity of what was eventually agreed because of agreement on the further linkages between weapons disposal and other parts of the Agreement – including a provision that elections for the autonomous government can be delayed if a decision on the final fate of the weapons has not been reached, or if the UNOMB (with assistance from the PMG) judges that there is not substantial compliance with arrangements for the handing in of weapons or for the security of already contained weapons. The disposal process has operated reasonably well to August 2003, with over 1,900 weapons contained, over 300 of which are classified as high-powered, over 300 as ‘sporting’, and the balance either refurbished World War II or home-made weapons. About 150 weapons have already been destroyed, ahead of agreement being reached on the final fate of the weapons. On the other hand, the process has taken far longer than was expected when the Agreement was made. There have been a number of reasons for the slow speed of the process, including divisions and tensions within the BRA, and the refusal of Francis Ona and the MDF to support the weapons disposal process, a factor that probably puts pressure on some BRA and BRF elements to make less than full commitment to the disposal process. Several weapons containers were broken into late in 2002, with about 300 weapons removed. There was concern that MDF elements might be involved, a matter never entirely resolved. However, there were no further incidents after that, perhaps due to strong pressure from the BRA leadership on the MDF leadership. Intensive efforts by the UNOMB, PMG, BRA, and BRF leaders resulted in most of the stolen weapons being re-contained in the first half of 2003. In announcing the verification of the completion of stage two of the weapons disposal process in July 2003, the UNOMB had to take account of the fact that an unknown number of weapons held by the MDF and some others held by reluctant

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

BRA and BRF members, criminals, and business people had not been contained. The MDF weapons were the most serious matter, but might be regarded as a manageable issue following statements by Francis Ona to the effect that he has no intention of disrupting the peace process. Discussions within and between the BRA and the BRF concerning the final fate of the weapons had begun even before the announcement of verification of stage two, but at the time of writing (August 2003) it remains unclear how close the parties are to agreement. Nevertheless, as there is such strong commitment among the Bougainville groups involved in the peace process to the earliest possible establishing of the autonomous government, it would be expected that the linkages between weapons disposal and the provisions on the establishing of the autonomous government will encourage those groups to work to the containment of weapons not yet contained, maintain the security of the weapons already contained, and reach early agreement on the final fate of the weapons. E

External Participants’ Roles – Making, Monitoring and Managing Agreement,

The roles of external participants in the ongoing peace process that generated the 2001 Agreement have been discussed elsewhere in this chapter. The Agreement also provides for roles for external participants in a number of aspects of monitoring and managing the implementation of particular parts of the Agreement. The roles of the UNOMB and the PMG in relation to the weapons disposal process have already been discussed. Other matters provided for in the Agreement include: • A requirement for the tabling by the national government of the Agreement in the United Nations General Assembly (clause 334), a provision directed to underlining the interest of the parties in the process being monitored by the international community (the tabling occurred late in 2001); • Potential roles for the UNOMB and a ‘neutral third party’ in dispute settlement during implementation of the Agreement, prior to the establishing of the autonomous Bougainville government (Agreement clauses 333 and 335); and • Roles for international observers in observing of the conduct of the referendum on the future political status of Bougainville. Quite apart from formal roles in the peace process and the monitoring and managing aspects of the Agreement, the key external participants (Australia and New Zealand) have a number of other roles. First, they are significant donors to both the Papua New Guinea government and to Bougainville. Australia, in particular, spends about AUD 25 million per year in aid to projects for Bougainville, much of it on infrastructure, but significant amounts in supporting the peace process, and some in assistance to the Bougainville administration. New Zealand funds aspects of the peace process and also a number of Bougainville projects, including one supporting development of community-based policing. Both countries have

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‘invested’ considerable ministerial and bureaucratic effort in the peace process, in addition to the money, towards the goals of reducing regional insecurity and reducing the pressures on the weak state in Papua New Guinea. The extensive roles played by the various external actors have given them considerable influence, especially upon the Bougainville groups supporting the peace process, who are very conscious of the need to maintain international support, as evidenced by the decision during the negotiations for the political agreement to accept the Papua New Guinea human rights regime. There is an expectation in Bougainville, in particular, that these countries, as well as the United Nations, can be expected to be the principal monitors, and even guarantors, of the peace process and the implementation of the Agreement (including funding of the autonomy arrangements, to the extent that the national government may have difficulties in that regard). Further, the East Timor analogy used by the Australian Minister for Foreign Affairs and Trade, Alexander Downer, in mediating the compromise solution in relation to the referendum has created expectations in Bougainville that Australia, in particular, and the wider international community in general, can be expected to be the guarantors of the referendum outcome should the vote be overwhelmingly in favour of independence. As a result, it can be expected that there will be some interest on the part of the Bougainville parties to keep the attention of the international community focused on Bougainville. V

Arrangements for Transition

The 2001 Agreement is still in the early stages of implementation, but as most provisions of the constitutional laws giving effect to the 2001 Agreement came into operation only in August 2003, the autonomy arrangements have only just begun to operate. Completion of the Bougainville constitution is not expected until the second half of 2003, and the holding of the first election for the autonomous government is unlikely until July 2004. Consequently, it is not yet possible to discuss how the practice of most aspects of the 2001 Agreement is developing. Rather, we can comment briefly on implementation to date, outline the amnesty arrangements in relation to crimes committed by combatants, and outline aspects of the intended operation of provisions relating to designated sectors of government activities. A

Implementation to Date

The first steps in implementation of the 2001 Agreement involved the drafting, and then the passing by the national parliament, of the amendments to the national Constitution and of the new Organic Law, steps completed by March 2002. The clear commitment to the Agreement thereby demonstrated by the national government greatly enhanced the credibility of the Agreement in Bougainville. First steps towards making the Bougainville Constitution have begun with the Bougainville leaders establishing a twenty-four member Constitutional Commis-

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

sion in September 2002. The Commission has consulted widely with the people of Bougainville in developing successive drafts of a Constitution, with a final draft expected during the second half of 2003. Under the constitutional laws implementing the 2001 Agreement, only the Constitutional Commission could be established before the main parts of those laws had come into operation. As a result, the Constituent Assembly that is required to consider the Commission’s final draft could not have been established before the verification of stage two of weapons disposal brought the bulk of the provisions of the new national constitutional laws into operation in August 2003.Transitional arrangements for the transfer of powers and functions in relation to police, public service, and correctional services can be made to the Bougainville Interim Provincial Government (BIPG), well in advance of the autonomous government being established. Despite a formal request with regard to police power having been made by Bougainville early in 2002, no action has yet been taken by the national government, although talks between Bougainville and national government officials about how to achieve the initial transfers took place in June 2003. On the Bougainville side, there are some concerns that the slow progress on the transfer of police powers indicates lack of commitment to the Agreement on the part of the national government. It is true that there have been some problems for Bougainville in getting responses relating to a number of implementation matters. In part, the explanation is that staff in key national institutions have changed since the Agreement was negotiated. Further, capacity at the national government level is limited, so much so that there is sometimes doubt whether there is the necessary ability to fully understand and implement the rather complex provisions of the Agreement. The serious financial crisis facing the national government adds an additional level of uncertainty about implementation. On the other hand, the Bougainville administration also has limited capacity. Perhaps more important is the fact that progress towards establishment of the autonomous government has been slower than expected, mainly because of the slow movement in the weapons disposal process. Pressure for more rapid implementation of the autonomy arrangements can be expected now that verification of stage two of weapons disposal has occurred. B

Amnesty Arrangements

A major problem in the aftermath of most violent secessionist conflicts is how to respond to the crimes and human rights abuses committed during the conflict, usually on all sides. Alternatives include some form of amnesty arrangements or various ‘transitional justice’ processes such as truth commissions or special judicial processes. In the Bougainville case, the 2001 Agreement provides for immunity from prosecution to be granted for all criminal offences committed in relation to the conflict and for pardons to be granted to persons already convicted of such offences. Such arrangements were judged necessary to encourage the support of all the combatant groups for the peace process and for the political settlement in general, and in particular for the weapons disposal process. However, the

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amnesty arrangements in no way restrict people from making claims relating to matters arising from the conflict either in the civil courts or through the judicial human rights enforcement processes provided for under the Papua New Guinea Constitution. Further, there is no restriction on the possibility of establishing some form of truth and reconciliation commission, a possibility which remains open, and has some support in both Port Moresby and Bougainville (Kabui 2002: 65). The amnesty provisions of the constitutional laws implementing the 2001 Agreement came into operation in 2002, and the necessary notice defining the period of the amnesty and the offences to which it applies has been published in the National Gazette. C

Aspects of Anticipated Implementation

In presenting such an outline, it needs to be remembered that until the constitutional provisions implementing the 2001 Agreement come into operation and the autonomous Bougainville is established under them, the existing political authority in Bougainville, the Bougainville Interim Provincial Government (BIPG) continues to be responsible for the execution of powers and functions under the provincial government system operating throughout Papua New Guinea. The BIPG has responsibility for aspects of some powers and functions in relation to the sectors in question, and it would be expected that such arrangements would be the starting point for any exercise of further relevant powers made available under the new autonomy arrangements. Further, the limited financial resources likely to be available to both the Papua New Guinea government and the proposed autonomous Bougainville government over the next few years can be expected to be a factor limiting the extent to which the latter will be able to depart from existing administrative, policy, and other arrangements. Brief comments have already been made about division of powers and functions regarding administration of justice, police, human and minority rights, and external relations and trans-border cooperation, and no more needs to be said about them here except to note that existing provincial governments, including the BIPG, have almost no existing responsibilities in relation to these sectors, so that implementation of the new arrangements would result in significant change in Bougainville, and in relations between Bougainville and the national government. 1 Communication and Media The existing BIPG does not exercise any legislative powers relating to communications and the media. It does have a small Government Information Office, but the BIPG funding is so limited that that office is essentially moribund. The 2001 Agreement and the implementing constitutional laws provide for “communications and information services within Bougainville”, “information technology”, and “censorship” to be powers available to Bougainville (Constitution s290(1)(i), (z) and (e)), while telecommunications will be a national government power (s289(2)(p)). However, Bougainville will also have the power to develop

5  Resolving the Bougainville Self-determination Dispute: Autonomy or Complex Power-sharing?

its own arrangements for establishing a telecommunications carrier within the national government regulatory framework. Further, as already noted, one of the functions of the Joint Supervisory Body will be to deal with any proposals that the Bougainville government may develop for changing national government laws or policies on, or for assuming additional powers and functions in respect of, telecommunications (Agreement clauses 93-100). 2 Health and Social Services The BIPG exercises administrative responsibility for the delivery of rural health services in Bougainville, and for the minimal social services that are provided through the public sector in Papua New Guinea. The major hospital in Bougainville is a national government responsibility. All present laws relating to health and social services are national government laws. Under the 2001 Agreement and the constitutional laws implementing it, the subjects of “health” and “home affairs, including youth and social welfare” will be open to Bougainville laws. There is no indication at this stage as to what priority Bougainville will accord to health and social services policy development or when they might choose to assume responsibility for such matters. 3 Education The BIPG exercises administrative responsibility for the delivery of primary, secondary, and technical education services, and under the new arrangements all aspects of the broad subject matter of “education” will be open to Bougainville laws. Successive provincial governments in Bougainville have regarded primary education as a priority. Before the conflict Bougainville was unique in Papua New Guinea in achieving almost 100% school attendance for lower primary school age children. Further, in the 1980s, Bougainville developed new education policies giving priority to education in local languages for an additional two years of schooling before normal primary school (which has a starting age of seven years). These were meant to enable children to achieve literacy in their first language before beginning primary school. In the re-establishing of education services that began in ‘government-controlled areas’ from the 1990s, the local language schools have largely ceased, and the main focus has been on implementing national government education policies rather than development of policies that meet the special needs of post-conflict Bougainville (such as those of the age groups that in many areas largely missed all opportunities for formal education over the period 1989 to 1998). However, a number of NGOs are operating projects providing adult literacy and technical education programmes in several parts of Bougainville. 4 Economic Policies The BIPG exercises little authority and allocates almost none of its limited resources to the development or promotion of particular economic policies or to economic management. It does have a small commerce office, which provides limited technical support to small businesses. It also has a planning office, which,

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with very limited resources, attempts to develop plans for the future development of Bougainville. But, with limited provincial government funds to allocate, and very little capacity to coordinate or even to influence the allocation of official donor funds (about pgk 50 million18 per year, considerably more than the amount currently available under the BIPG annual budget) and funds spent by NGOs, the impact of the BIPG on economic development is extremely limited. All relevant laws and most policies relating to economic management and development are made by the national government, though in fact they have limited impact in post-conflict Bougainville. In negotiations for the 2001 Agreement, the Bougainville parties reluctantly accepted that Bougainville would continue to be part of a single Papua New Guinea economic system, a system that is in any event largely subject to the vagaries of global forces. As a result of these and related considerations, it was agreed that the national government should retain control over “central banking”, “currency”, “customs (imposition, administration, and collection)”, “foreign aid”, and “international trade” (Constitution s289(2)(a),(b), (c), (e) and (j)) and would share responsibility with Bougainville in relation to control of “foreign investment”, (s289(5) and s290(6)). On the other hand, Bougainville will be able to pass laws on a range of subjects relevant to economic management and development, including “agriculture”, “corporation law”, “energy”, “environment”, “fisheries”, “forestry”, “land and natural resources”, “mining”, “oil and gas”, “trade, commerce and industry”, and development of infrastructure related to its functions (Constitution s290(2)(a),(k),(n), (o),(r), (s),(zd),(zm),(zo),(zza), and (6)). The autonomous Bougainville government can be expected to give considerable attention to economic policy, both because of its need to raise revenue, and because of the general concern that, as far as possible, Bougainville should control future patterns of economic development with a view to avoiding the inequalities and other problems that were the consequences of the patterns of development before the conflict, and which are widely perceived as having contributed to the origins of the conflict. There is no consensus yet on what approach to future economic development should be followed. The expectation of many is that it should be based primarily on agriculture rather than mining, but there are some leaders, especially in Buka and north Bougainville, who believe that renewed mining is going to be necessary if Bougainville is to generate enough economic activity for the autonomous government to derive the revenue needed to meet the expectations of ordinary people over the delivery of basic services.19 5 Humanitarian Cooperation There is no specific provision in the 2001 Agreement concerning humanitarian cooperation, nor any existing arrangements under which the BIPG is involved directly in such matters. 18 19

In mid 2003, the exchange rate for the pgk was about usd 0.25. For further discussion of the dilemmas involved in consideration of the future of mining in Bougainville, see Regan 2002a and 2003.

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VI Conclusions Although development of political mobilization around a Bougainville identity may be a relatively recent phenomenon, it has made Bougainvillean self-determination one of the most difficult issues that Papua New Guinea has had to deal with in its almost thirty years of independence. While the extent of the commitment of the Bougainvillean leadership to self-determination in 1975–1976 was never entirely clear, there is little doubt that, even then, most Bougainvilleans saw themselves – and their problems and needs – as so distinct from the rest of Papua New Guinea that, at the very least, considerable autonomy was required. Further, the conflict of 1975–1976 contributed to the development of expectations that independence offered a simple solution to Bougainville’s complex problems. Nevertheless, the autonomy arrangements under the 1976 Agreement worked reasonably well to end the self-determination dispute at that time. While neither the autonomy arrangements nor the way that they operated contributed directly to the development of the renewed self-determination dispute in 1988, nevertheless they could not accommodate the forces unleashed by rapid social and economic change that contributed to growing dissatisfaction among Bougainvilleans. On the other hand, although many Bougainvilleans probably felt that their situation would have been better if the 1975 UDI had succeeded, there was no evidence of a development of a movement for independence in the 1980s until that was generated by the behaviour of first the Police Mobile Squads and later the PNGDF from late 1988 to early 1990. In the course of the conflict to 1997, political mobilization around identity intensified dramatically, and in the process self-determination became the only acceptable solution for a large – but never defined – proportion of Bougainvilleans. As a result, it was inevitable that resolving the 1988–1997 conflict would require much more extensive concessions from the Papua New Guinea government than was the case with the 1976 Agreement. The reasons why the Bougainvillean negotiators of both the 1976 and 2001 agreements preferred territorial autonomy rather than some form of integration are clear. As a small minority of the Papua New Guinea population that shares a sense of a distinct identity, and concentrated in an area not only where they constitute the overwhelming majority but also remote from the rest of the country, there was little reason for Bougainvilleans to be interested in integration into central government arrangements. It is therefore not surprising that in the negotiations for the 2001 Agreement it was the national government that pushed for what integrationist elements that were included, such as normal arrangements for Bougainvillean representation in the national parliament and the linkages between national government and Bougainvillean public service, police, and judicial institutions. In fact, it can be argued that in negotiating and implementing the 2001 Agreement, the Bougainville leadership has been unwise in its lack of interest in such things as elected Bougainvillean representation in the national parliament. After all, in a weak state, facing fiscal crisis, Bougainville can be expected to need a reasonably strong voice at the centre to attract attention and resources.

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It is hard to see how the 1988–1997 dispute could have been successfully ended – even in the short to medium term – by anything other than some form of complex power-sharing arrangements. Neither assimilation nor separation could have been expected to have succeeded. Assimilation was not acceptable even to the Bougainvillean elements who opposed the BRA and their secessionist demands – for although they feared independence under the BRA, they nevertheless saw Bougainvilleans as separate and unique, and supported the highest possible level of autonomy. On the other hand, separation was also not viable. Divisions among Bougainvilleans were deepened by the nine years of war, and have not been fully susceptible to resolution even with a six-year peace process. A proportion of Bougainvilleans – again, one that has never been defined – has always opposed independence, but that proportion has undoubtedly increased as a result of the internal conflict in the period 1990–1997. There is also the question of the extent to which Bougainvillean identity is a phenomenon generated by opposition to outsiders, in the absence of which more locally-based identities among Bougainvilleans not only tend to be more important, but also become foci for tensions and conflict. It is yet to be seen whether the Bougainvillean leadership can build a unified nation by mobilizing political support around a single Bougainvillean identity. Without that occurring, there may be dangers of internal conflict again becoming hard to manage. Development of the unity needed to make independence viable may not be an easy task when divisions remain so strong, with significant groups still refusing to support the 2001 Agreement. Indeed, Bougainville’s dilemma is illustrated by the opposing positions that tend to be put in discussion of the advantages and disadvantages of its being part of Papua New Guinea. On the one hand, it is argued that there may be advantages for Bougainville to persist with special status within Papua New Guinea rather than having independence, in that a unifying impetus may be provided by the inevitable tensions involved in dealing with a remote national government. On the other hand, it is said that the tensions involved in being part of Papua New Guinea are more likely to result in a renewed self-determination conflict than give rise to mild tensions sufficient only to both encourage unity and enable Bougainville to accept integration into Papua New Guinea. The assumption of the 2001 Agreement is that, with enough autonomy, Bougainville will be able to manage enough of its own affairs that the tensions involved in dealing with the national government will be manageable. But the complexity of the arrangements, the heavy dependence that Bougainville will have on national government funding, the weakness of the state at all levels, and the ambiguous degree of support for the 2001 Agreement at the national level all contribute to doubts about whether the Agreement will work as hoped. Would it have been possible to base the 2001 Agreement on territorial autonomy alone? With a significant proportion of the population strongly supporting secession, it was essential to include a mechanism that dealt with that issue explicitly. It was fortunate, however, that there were enough moderate leaders within the BRA and the BIG who recognized that the extent of the division in

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Bougainville on the question of independence was such that the issue could not be dealt with in the short term, and was best left to the democratic device of a referendum held after enough time had elapsed to enable divisions to be healed, for without such a compromise there was no way of resolving the self-determination dispute amongst Bougainvilleans. It is clear that external actors have been of critical importance to both the making and implementing of the 2001 Agreement. The divisions generated by the two dimensions of conflict (between Bougainville and Papua New Guinea and within Bougainville) were too deep to be dealt with otherwise. External actors have made major contributions to: establishing and monitoring the peace process that enabled the 2001 Agreement to be reached; achieving agreement on the most difficult issue in the negotiation of the Agreement (the referendum on independence); and implementing the Agreement (especially, but not only, in relation to the weapons disposal process). On the other hand, while there are now high expectations in Bougainville that the international community will continue to guarantee the Agreement, through funding of autonomy and by ensuring that the referendum is held and its outcome honoured, it is far from certain that these expectations will be met. In the context of this book, a key issue concerns whether the 2001 Agreement goes beyond mere territorial autonomy, and meets the criteria for complex power-sharing. Commentators on power-sharing as a response to self-determination disputes tend to regard integrationist arrangements as being the most important. Bougainville’s experience, however, indicates that, in limited circumstances (such as the geographical concentration of a minority population), even bitter self-determination disputes can be responded to by territorial autonomy. However, it is a case that also indicates that, in such circumstances, the autonomy arrangements themselves need to be of a degree of complexity similar to constitutionally-provided integration arrangements. A key criterion for complex power-sharing is the distribution of public power in such a way that there is a sharing, or blurring of the location, of sovereignty. The 2001 Agreement divides authority between Bougainville and the national government in such a way that this criterion is certainly met. The degree of power available to Bougainville will be remarkable, extending even to powers relating to foreign affairs and human rights. In fact, under the unusual arrangements for division of powers and functions, most powers of government will be available to Bougainville. The complexity, however, is not just in the division of powers in relation to Bougainville into two formal categories (a small list of national government powers and a large list of powers available to Bougainville), but the effective existence of a third category of powers resulting from complex arrangements for limits or conditions applicable to the exercising of those powers by the government on whose list they appear. Not only are these and the other complex power-sharing arrangements discussed in this chapter constitutionally provided, but those arrangements cannot be changed without the consent of the Bougainville legislature (‘double entrenchment’).

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The Bougainville case does not, however, involve just territorial autonomy, but it also meets several of the other criteria for complex power-sharing. First, external actors have played critical roles in making, monitoring, and managing the Agreement. Second, constitutional provisions are made for the machinery to manage intergovernmental relations – provisions intended to deal with the complexity of the arrangements for dividing public authority. An additional element of complexity in the Bougainville case involves one that in some ways may be seen as detracting from the use of power-sharing as the main means of resolving self-determination disputes. The complex territorial autonomy arrangements sit together with an explicit constitutional provision for a referendum – something that might be seen as contradicting the idea of power-sharing as the solution to a self-determination dispute. But, as discussed in this chapter, an important part of what might be termed the ‘internal logic’ of the Agreement is that the existence of the guarantee for the referendum should encourage the national government to do all it can to make the autonomy arrangements work well so as to maximize the likelihood of a high level of voting in favour of integration into Papua New Guinea when the referendum is eventually held. Seen in this light, and in the particular circumstances where strong support for secession continues, there is a basis for the two approaches to be included in the same agreement, and without detracting from the case for these arrangements to be classified as a case of complex power-sharing. A criterion for complex power-sharing that the Bougainville case does not meet so clearly involves the inclusion of provisions for human and minority rights protection. The 2001 Agreement does provide a high degree of protection for the rights of Bougainvilleans living in Bougainville. However, it gives little specific attention to the protection of either minorities living in Bougainville or of the Bougainvillean minority living in other parts of Papua New Guinea, mainly because the focus of the Agreement is on territorial autonomy. On the other hand, the Agreement is also based on the assumption that existing constitutional protections should be adequate to meet the needs of both minorities. Finally, it is necessary to touch briefly on two closely related questions that cannot yet be answered with any degree of certainty, mainly because the Agreement is still at such an early stage of implementation. The questions concern whether the power-sharing arrangements are more likely to entrench or to resolve the divisions on the self-determination issue, and whether the arrangements can be expected to be permanent or transitional in nature. Some aspects of these questions have already been touched upon in the discussion of the opposing positions on the advantages and disadvantages of Bougainville belonging to Papua New Guinea, and the apparent contradiction of pairing territorial autonomy with a referendum on independence. In relation to the latter point, there is as yet little evidence that the ‘internal logic’ of the Agreement is widely understood in the senior levels of the Papua New Guinea national political or bureaucratic leadership. If that proves to be the situation in the long-term, there will be a danger that popular support for the Agreement in Bougainville will dissolve, perhaps well before the referendum is held.

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On the other hand, of course, even if support for the Agreement is maintained, and the referendum held, there will always be a risk that even if the national government has put a great deal into supporting the autonomy arrangements, that a strong vote in support of independence will lead to the self-determination conflict being renewed, or strong pressure being applied to the Papua New Guinea government to agree to independence for Bougainville. These are just two of the possible outcomes that demonstrate the difficulty of predicting with any certainty whether the power-sharing arrangements in the 2001 Agreement can be expected to be permanent. Attempting to answer these last questions, however, involves speculation that is not particularly fruitful. At present, the best guides to the future of the 2001 Agreement probably lie in its development and implementation to date. The Agreement involves considerable attempts on the part of diverse and previously opposed groups to resolve significant conflict. Since the Agreement was reached, the groups involved have shown serious commitment to its implementation (even if implementation has not been without difficulties), and despite concerns about the complexity of the autonomy arrangements and the limited capacity available to implement them, so far there are no indications that the degree of commitment is likely to change to any substantial degree. The involvement of the international community has been critical to the success in reaching the powersharing agreement, and will probably be equally important to its ongoing implementation. While that involvement is unlikely to be able to provide the same degree of support as it has managed in the first six years of the peace process, some support can be expected to continue, adding to the prospects that progress in implementation will continue, albeit probably with continuing problems. In summary, then, the Bougainville case involves not just an instance of complex power-sharing, but also one where there are reasonable prospects that the agreed arrangements will provide the basis for successful resolution of the self-determination dispute.

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Chapter 6 Resolving Self-determination Disputes through Complex Power-sharing Arrangements: The Case of Mindanao, Southern Philippines Mark Turner

I

The Origins of the Conflict

A

Introduction

The Philippines is a colonial invention. There was no concept of the Philippines when Spanish explorers arrived in the archipelago in the sixteenth century. The scattered islands which make up the present-day country were populated by small independent communities. Colonization of these lowland communities was easily accomplished, their inhabitants converted to Christianity and the island chain named Las Islas Felipinas in honour of the crown prince of Spain, a distant figure unknown to the indigenous inhabitants. There was a notable exception to this experience. More than two centuries before Spanish galleons first anchored off Philippine shores, traders from the Middle East introduced Islamic beliefs and practices into the archipelago. The effect was strongest in the south on the large island of Mindanao and in the Sulu archipelago. Part of this “gradual Islamization” (Tan 1993: 7) was the consolidation of neighbouring micropolities known as datuships into larger political units known as sultanates. These strong trading states were not amenable to Spanish colonial advances. A combination of military prowess and international diplomacy meant that they were able to resist European control for several centuries (Gowing 1979; Warren 1985; Laarhoven 1989). It was these early colonial encounters that established the theme for more recent struggles for secession or autonomy by Muslim (Moro) groups on Mindanao. One of many contemporary illustrations of this can be seen in the opening statement of the 1989 Bangsamoro National Congress: “It is a historical fact that Bangsamoro people have for four centuries remained steadfast in the defense of their fundamental right to self-determination” (Tan 1993: 132). First, it was the Spanish, then the Americans, and finally the independent Republic of the Philippines. In all cases, Muslims in Mindanao have perceived these regimes as

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 161-192

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alien impositions. The contexts in which struggles have taken place have certainly changed over the centuries but the overriding theme has remained intact. B

The Colonial Experience: Creating the Moro Nation

Pacification of the Muslim populations has been the policy of both colonial regimes and the Republic of the Philippines. The Spanish made their intentions clear early on. They lumped the thirteen different ethnic groups who were Muslim under the collective name of ‘Moro’ after the Islamic Moors who had fought Spain over centuries for control of the Iberian peninsula. The Spanish also transferred their hatred for the Moors to the Philippines. The Moros were thus ascribed a long list of negative characteristics and were to be made to acknowledge Spanish sovereignty over their territory, to restrict their trade to the Philippine islands, and to submit to “Hispanization and Christianization” (Gowing 1979: 2930). Over the next three centuries, Spain attempted to convert this policy into reality through the Moro Wars, which “shaped the character of Muslim-Christian relations down to the present day” (Gowing 1979: 31-32). But only in the sixth and final stage of these sporadic wars in the mid-nineteenth century did the Spanish succeed in penetrating deeply into Muslim territories and activities. There was some respite for the Muslim polities as military forces were withdrawn from Mindanao to deal with the outbreak of the Philippine Revolution in Luzon in 1896 and the subsequent spillover of the Spanish-American War from the Caribbean into the Philippines. But the outcome of these struggles was a new colonial master for the Muslims in Mindanao – the Americans. From 1899 onwards, the Americans pursued a policy of pacification using superior military technology, which eventually overwhelmed the Muslim forces. They then commenced the ‘civilizing’ process, involving the imposition of alien laws, new forms of government, and formal education. A “policy of attraction” was launched in 1914 to ensure the full incorporation of Mindanao’s Muslims into mainstream Filipino life. Occasional uprisings reminded the American colonists of the tenacity of Moro opposition to external domination, but this was a time of relative peace in Mindanao (Tan 2000). The most significant legacy of the colonial era was the creation of a “transcendent Muslim (Moro) identity” (McKenna 1998: 275). Maguindanao, Tausug, Maranao, and other more local identities were subsumed under the one collective identity. Muslims also adopted the transcendent identity and utilized it for their own purposes. Following pacification by America, accommodating Muslim intellectuals and elites “sifted out the favorable attributes of ‘Moro’ culture for administrative enhancement” (McKenna 1998: 275). The second generation of Muslim intellectuals maintained the idea of a transcendent Muslim identity and embraced the once pejorative term Moro. But they rejected the American notion of Muslim self-improvement as “the principal cure for Muslim underdevelopment” and focused on “a glorious history [of ] unified Muslim resistance to Western imperialists” (McKenna 1998: 276).

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C

The Republic of the Philippines: Independence or Internal Colonialism?

When Philippine independence came onto the political agenda in 1934 the Muslims were poorly placed to wield power in the new state. They had either to “accept subordination to Christian Filipino leadership or demand separation from the envisioned independent Philippine republic” (Tan 1993: 11). Some Muslim leaders even made overtures to the USA in efforts to make Mindanao another American state. Remote from the centre of power in Manila, Muslim elites remained peripheral to the political manoeuvring that was determining the structure and officeholders of the new state. They saw internal colonialists replacing foreign ones. There was a yawning gulf between the “New Nationalists” (George 1980: 82) in Manila and the Muslims in Mindanao. These New Nationalists were ignorant of Muslim socio-economic systems, their cultures, and their history of anti-colonial struggle. Independence in 1946 brought no improvement. Instead, events propelled Muslims inexorably into renewed armed conflict. The education system maintained its bias against Muslim Filipinos with “the provocative slant of textbooks” working against building “the confidence of a self-conscious minority” (George 1980: 94). Popular negative stereotypes of Muslims propagated during colonial times were firmly embedded in the Christian majority’s minds in the independence era (Bulatao 1975). Poor levels of education among Muslims meant that northern Christian officials came to the south to exercise their administrative authority. Some Muslims who did assume positions alongside the northern bureaucrats used the opportunities for self-advancement but few benefits trickled down to the community. A 1963 Senate Committee report on the situation of Muslims made grim reading. It spoke of frustration and alienation and pointed to “worsening problems” in education, health, livelihood, transportation, and communication (Tan 1993: 33). The report also gave emphasis to land-grabbing, which was depriving Moros of their ancestral rights. The loss of land by Muslims was a direct result of a migration of Filipinos from the northern islands. The colonial governments, and especially the independent government, encouraged these settlers to come to Mindanao, “the land of promise” (Turner, May and Turner 1992), seeking economic opportunity and security. A stream of Christian migrants caused a population explosion on Mindanao and transformed the Muslim majority into a minority in its own land. In 1903, Mindanao’s population was 670,833 (Costello 1992). By 1939, it had reached 2,244,421. In 1960, 3,200 land-hungry northern migrants were disembarking in Mindanao each week (George 1980) swelling the population to 5,384,164, and by 1980 it had reached 10,905,243. In 1903, Muslims comprised 76% of Mindanao’s population. In 1980 the figure was 23%. This northern invasion created friction and conflict, which erupted in the 1960s in armed actions against Muslims by fanatical gangs of Ilagas (rats) sponsored by local Christian politicians and seemingly blessed by the Philippine armed forces. The counter-reaction came in the form of gangs called Barracudas and Blackshirts, which recruited from Muslim populations to terrorize Christian commu-

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nities. The situation degenerated into what May (1992) has described as “the Wild West in the South”, or as Glang puts it, “a free-for-all” with “Muslims fighting Christians; government troops fighting Muslims; political private armies fighting Muslim or Christian farmers; private armies or hired goons fighting army men” (Glang 1972: 7, as cited in May 1992). Without guns, Muslims believed they would be even more vulnerable to terror and dispossession. D

The Rise of the Moro National Liberation Front

It was in this context of disorder that the Moro National Liberation Front (MNLF) emerged in the early 1970s to assume leadership of the Muslim cause. Several events precipitated the slide into open war between the MNLF and government forces. These were the Jabidah Massacre of Muslim military recruits in 1968, the Manili Massacre of sixty-five Muslim men, women and children at a mosque in North Cotabato in 1971, the intensified hostilities between Muslims and Christians accompanying the 1971 elections, and the declaration of Martial Law in 1972 with the associated attempt to disarm civilians (Che Man 1990). The MNLF had been formed in 1969 by a group of young secular-educated men who rejected the traditional aristocratic leaders of Mindanao’s Muslims. According to MNLF leader, Nur Misuari, “our armed struggle today is a jihad for national salvation from colonialism” and involved setting up an independent “Bangsa Moro Republik” (Che Man 1990: 87). Full-scale war between the MNLF and government forces lasted from 1972 until the mid-1970s, resulting in approximately 50,000 deaths and the displacement of at least 200,000 people with an additional 140,000 refugees in Sabah (May 1992). Other estimates put these figures considerably higher. For example, Vitug and Gloria (2000: 27) claim the death toll was 120,000, while over 300,000 were displaced. The death and destruction in Mindanao led to MNLF claims of genocide being perpetrated by the Philippine government. Thus, President Marcos hosted delegations from Muslim states to prove there was no genocide in Mindanao, while the MNLF sought foreign assistance to prosecute their armed struggle. Finance and weapons were initially secured from Libya, while logistical support was acquired from the Malaysian state of Sabah, which lay adjacent to Mindanao. Neighbouring Indonesia was not amenable to MNLF requests for assistance. The leading international body of Islamic states, the Organization of the Islamic Conference (OIC), was more sympathetic. In 1972, it expressed “serious concern for the plight of Moslems living in the Philippines” (OIC 1972, quoted in Santos 2001: 57) and in 1974 urged the Philippine government to find a peaceful solution to the conflict, particularly with the MNLF. This came in 1976 in the form of the Tripoli Agreement, signed in Libya by the Philippine Government and the MNLF and brokered by the OIC. Under the terms of the agreement, there would be no independent Bangsa Moro Republik. Instead, thirteen provinces in Mindanao, Palawan and the Sulu archipelago would become “areas of autonomy for the Muslims” (GRP-MNLF 1976: 2). There was disagreement on the implementation of the Agreement be-

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tween the MNLF and the government. The government created two autonomous regions rather than one envisaged by the MNLF; officeholders were often viewed as opportunists, and it is doubtful whether real power was actually devolved from Manila. Hostilities between the government and MNLF continued on a much reduced scale. Some commanders returned to the government fold (for a fee), while others transformed their units into ‘lost-commands’, which engaged in criminal activities. The MNLF fragmented along both ethnic and ideological lines. The most significant breakaway group was the Maguindanao-based Moro Islamic Liberation Front (MILF), which, under Hashim Salamat, professed a more Islamic orientation than the MNLF. The separatist movement had run out of steam and “was considered, for all practical purposes, a minor local problem” (Mercado 1992: 163). With the overthrow of Marcos in 1986 and the inauguration of Corazon Aquino there were renewed efforts to negotiate a lasting peace. The ‘Mindanao problem’ was returned to central stage in the national political arena. A new Constitution in 1986 mandated “the creation of an autonomous region in Muslim Mindanao” (Republic of the Philippines 1986, Art X(1)). Both the MNLF and MILF lobbied for delay in ratifying the sections dealing with Muslim Mindanao but the government submitted the Constitution to the people for approval in February 1987. There was overwhelming acceptance of the new Constitution even in predominantly Muslim areas. A Regional Consultative Committee (RCC) was appointed to draft the “Organic Act on Muslim Mindanao”, but the MNLF and MILF refused to participate. Despite this opposition, a draft act was produced by the Committee and subsequently passed by Congress (Republic Act 6734) in July 1988. The Act was not only intended for Muslims but also contained a minority protection clause. To assuage Christian and Lumad (tribal minorities) fears of Muslim domination, Article III, Section 5 stated that “no person in the autonomous region shall, on the basis of creed, religion, ethnic origin, parentage or sex, be subjected to any form of discrimination.” The Act provided for a regional assembly and executive organizations. It also devolved responsibility for a wide range of developmental and administrative functions to the region, including special Shariah and tribal courts, but central government retained control of critical items such as foreign affairs, defence, general auditing, civil service, and elections. Central government also agreed to provide ‘seed’ money of php 2 billion per year for five years (Mercado 1992). While the Act was enthusiastically promoted by the government, it met with considerable opposition in Mindanao. The MNLF and MILF rejected it and recommended a boycott of the plebiscite to determine which territories would be incorporated into the autonomous region. Many Christians were opposed to joining the region, believing that it would bring Muslim domination. When the votes were cast in November 1989, of the thirteen provinces and nine cities which were eligible for regional membership only four non-contiguous provinces opted to become partners in the Autonomous Region of Muslim Mindanao (ARMM). This has been characterized as an “unsatisfactory arrangement contributing little to the resolution of the ‘Moro problem’ or to the promotion of socio-economic

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development” (Turner 1995a: 10). The MNLF and MILF remained steadfastly opposed to the ARMM and sporadic armed clashes continued to disrupt life on Mindanao and hold back its developmental potential. II

The Origins of the Peace Agreement

A

President Ramos: Peace for Prosperity

When President Ramos assumed office in 1992 he regarded the promotion of economic development and of peace and order as primary policy objectives. In Mindanao, the two objectives coalesced. Ramos saw Mindanao as having considerable economic potential, which could be realized only if peace prevailed. His project to make Mindanao an investment focus of the eastern areas of the Association of Southeast Asian Nations (ASEAN), comprising Mindanao, parts of Indonesia and Malaysia, and Brunei. This ASEAN Growth Area (EAGA) required the cessation of armed hostilities and the demobilization or elimination of various armed groups (Turner 1995b). The largest of these groups and the greatest threat to peace was seen to be the MNLF. Thus, Ramos made immediate efforts to settle the ‘Mindanao problem’ once and for all by seeking a lasting peace with the MNLF. Exploratory talks between the government of the Philippines and the MNLF were held in Tripoli in October 1992 and then in Indonesia in April 1993 with OIC assistance. A Statement of Understanding emerged from these discussions leading to formal negotiations aimed to bring about the full implementation of the 1976 Tripoli Agreement. A three-tier structure was adopted to conduct the formal negotiations, although informal face-to-meetings were reportedly important in securing consensus (Santos 2001). At the top level were the formal panel talks held in Jakarta with the leading figures from the Philippine government and MNLF. Below were the mixed committees and support committees. These two layers of lower level committees met in the Philippines. The mixed committees consolidated the technical work of the support committees on nine substantive issues. The mixed committee’s outputs of ‘consensus points’ were forwarded to the top-level panels at the formal talks. At all levels, meetings were facilitated by diplomats from Indonesia, which was chair of the OIC Ministerial Committee of the Six. Indonesia and Bangladesh had been added to the original four countries of Libya, Saudi Arabia, Somalia, and Senegal, which had comprised the Quadripartite Committee in previous negotiations. Making Indonesia chair was described by its ambassador as “throwing the whole problem to Indonesia” but he did claim that it allowed the committees to “work very fast” (Santos 2001). Others saw the negotiations as “tortuous” (Muslim and Cagoco-Guiam 1999). President Ramos’s strategy towards the MNLF was “accommodation and cooptation”, with government negotiators empowered in advance to give political and economic concessions to lure the MNLF into the Philippine mainstream (Vitug and Gloria 2000: 43). This was not a new strategy. American colonial administrators and previous Philippines presidents had also adopted such an approach.

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The strategy was an exclusively executive initiative. The legislature had little or no part, preferring to distance itself from negotiations with the MNLF. The advantage of this strategy for Ramos was a unified voice in negotiation. The danger was that, lacking ownership, the Congress would oppose, water down, or drag out discussions on any required legislation. Given the fractiousness of Philippine politics and strong opposition to accommodation among some constituencies in Mindanao, it was not surprising that when the agreement was brought into public view this scenario would be enacted. Opposition in the House of Representatives was led by three Congresswomen from Mindanao, the “Tres Marias.” Among their Christian supporters, the women railed against President Ramos for surrendering Mindanao to Muslim rebels. They accused him of selling out the Christian majority on Mindanao. Other Mindanao politicians joined the chorus and whipped up further opposition. There were also problems for Ramos in the Senate. For the whole of July 1996, it sat as committee to discuss the council proposed in the peace agreement (Vitug and Gloria 2000). The military was also wary of integrating MNLF troops into the police and Armed Forces of the Philippines (AFP). The initial numbers suggested by Misuari – up to 30,000 – were seen as ludicrous by AFP leaders. Some MNLF soldiers were wary of joining the very forces they had been fighting for twentyfive years. Other MNLF supporters also wondered whether the agreement would bring the developmental gains so urgently needed in this zone of poverty and insecurity. Civil society organizations on Mindanao shared these concerns but were not consulted for inputs into the peace process negotiations This allegedly “stoked resentment among Mindanao’s Christian and Lumad populations” and among the nongovernmental organizations (NGOs), which “could be credited with preventing conflict spawned by poverty and displacement” (Cagoco-Guiam 1999). Another bystander in the peace process was the MILF. At the start of his presidency, Ramos had established the National Unification Commission (NUC) to advise on peace policy and amnesty arrangements for Muslim rebels, communist insurgents, and military dissidents. Naturally, the MILF was one of the organizations that the NUC approached. However, the MILF realized that the government’s attempts to resolve the ‘Mindanao problem’ focused on the MNLF. Exploratory talks with the MILF came to a standstill and the MILF waited to see what would happen in the Jakarta talks with the MNLF. Meanwhile, the MILF continued to expand its armed forces and area of influence. The MILF would have been a major actor in the peace talks if it had had formal recognition by the OIC. But only the MNLF had that status and jealously guarded it. As the OIC was the principal foreign actor in the Mindanao peace process, the MILF was effectively sidelined. This suited both the government and the MNLF. The government greatly appreciated the OIC position, established in the 1970s, that the peace process was about autonomy and not independence. The nomination of Indonesia as chair also suited the Philippine government as it relegated Mindanao to a regional issue while conflicts in Bosnia, Algeria, and other hotspots assumed greater importance among OIC members. Furthermore, it has

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been alleged that “Indonesian diplomacy is not so much Islamic as it is Asian or more precisely, ASEAN [Association of Southeast Asian Nations]” (Santos 2001: 80). The Philippines and Indonesia are both members of ASEAN, where non-interference in the domestic affairs of fellow-members is a rule. It should also be remembered that the OIC was not an economic organization like the Organization of Petroleum Exporting Countries (OPEC). It was not in the business of imposing sanctions and preached a “pacific” approach to conflict resolution (Wadi 1993), although common membership of OIC and OPEC has led some to suggest that economic pressure was exerted on the Philippine government by individual OIC members such as Saudi Arabia (Rodil 2001). The MNLF liked OIC backing as it gave international legitimacy to its cause although it never managed to rise above observer status and become a full member of the OIC. Member countries also provided convenient bases from which the MNLF could operate. No other multilateral organization was ever involved in Mindanao peace negotiations. ASEAN was once approached but its firm policy of non-involvement in its members’ domestic affairs doomed this effort from the start. The UN was never brought in to mediate the dispute. The OIC’s consultative relationship with the UN prevented the MNLF from approaching the UN directly. As the OIC regarded Mindanao as a matter of autonomy, the MNLF could not claim status as a “non-self-governing territory” (Santos 2001: 76). The MNLF was thus prevented from taking its case to the UN. The involvement of both Libya and Indonesia in Mindanao as the brokers of peace negotiations in the 1970s and 1990s was conducted under the auspices of the OIC. In the case of Indonesia and the 1996 agreement, President Ramos had enjoyed a meeting of minds with President Suharto. The latter was keen on Ramos’s plans for EAGA, the new sub-regional economic zone in which Mindanao and parts of Indonesia were enmeshed. Suharto was also intent on retaining central control over potentially subversive outer islands. Secessionist movements in Mindanao might give ideas to disaffected groups in neighbouring parts of Indonesia. III Power-sharing Arrangements A

The 1996 Peace Agreement: Phase One

On 2 September 1996, with much fanfare, the Philippine government and the MNLF signed the historic peace agreement, which would end “decades of war” and usher in an era of peace and development, acknowledged by both leaders as “a path more difficult than the path of war” (Mercado n.d.). The agreement declared itself to be “the full implementation of the Tripoli Agreement” of 1976. The 1996 agreement identified two phases to the peace process. Under the first phase, there was the immediate establishment of the Special Zone of Peace and Development (SZOPAD), comprised of the fourteen provinces and nine cities occupying the territory originally identified as the autonomous region in the Tripoli Agreement 1976. Overseeing the SZOPAD was the Southern Philippines

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Council for Peace and Development (SPCPD), comprised of a chair, a vice-chair, and three deputies, each one representing the Muslims, the Christians, and the cultural communities (Lumads). No indication was given about how the officials would be chosen. An SPCPD advisory council of unspecified numbers was to be created by the Chair of the SPCPD. The function of the SPCPD to oversee peace and development was broadly defined and included promoting, monitoring, and coordinating the improvement of peace and order; monitoring, promoting, and implementing peace and development projects; attracting foreign investment; supporting local government units; and assisting in electoral organization. The ‘peace and development’ mission seemed to encompass every activity from crime prevention to electoral administration and construction of infrastructure. Various official taskforces and regional development entities such as the Southern Philippines Development Authority (SPDA), the regional and field offices of the Office of Muslim Affairs (OMA), and Task Force Basilan were placed under the control and/or supervision of the SPCPD as far as their activities in the fourteen provinces and nine cities were concerned. In order to pursue its diffuse mission, the SPCPD was empowered by the 1996 peace agreement to set up the necessary “offices and instrumentalities for the effective and efficient administration of the affairs of the area” but only after budgetary approval from the Office of the President. This maintenance of central budgetary control over SPCPD activities is reminiscent of President Marcos’s methods of keeping the previous autonomous region authorities in line with his wishes. In addition to the SPCPD, the peace agreement established a Consultative Assembly (CA) with eighty-one members. Forty-four places were reserved for the MNLF, thus giving it an automatic majority. Other seats were occupied by the political leaders of provinces and cities in the SZOPAD and the ARMM. Eleven members were drawn from civil society. The Chair of the SPCPD was the CA’s head. The CA was to be a consultative body where concerns could be ‘ventilated’ and from where advice could be drawn by the SPCPD and the president. It was also awarded the authority to make rules and regulations “for the effective and efficient administration of the affairs of the area” – just like the SPCPD. This duplication was rather confusing as there was no indication of what regulatory powers the CA possessed and where they might differ from the equally vague SPCPD authority in this field. Much more specific were the instructions for integrating elements of the MNLF with the Philippine National Police (PNP) and the AFP. The PNP was to receive 1,500 MNLF members plus another 250 for auxiliary services. The AFP was to absorb 5,750 MNLF members. No timetable was prescribed except that the integration should begin at once. Members of the MNLF not absorbed into the AFP and PNP were to be catered for in a “special socioeconomic, cultural and educational program.” The idea was to prepare these MNLF fighters and their families for developmental endeavours. Priority hiring of MNLF members was to be a feature of development projects in the SZOPAD. A Special Regional Security

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Force (SRSF) was also indicated as a further organization for employing out-ofwork MNLF guerrillas. B

The 1996 Peace Agreement: Phase Two

The first phase of the peace agreement was scheduled to last for three years, after which phase two would begin. This involved repealing Republic Act 6734 on the ARMM. A new act of Congress would establish an extended autonomous region. Presumably, government publicity and the achievements of both the old ARMM and the SPCPD would persuade other provinces and cities to join the new venture. Once again, there would be a plebiscite to decide which additional territories would join the extended ARMM. This was a high risk venture given the overwhelming popular rejection of the first version of the ARMM and its lacklustre performance since. The 1996 peace agreement contained recommendations of the government to the Congress for incorporation into the new or revised act for the ARMM. The legislation was supposed to be completed and subjected to popular approval within two years (1998) of the establishment of the SPCPD. A “convoluted process” in Congress ensured that this timetable was not kept (Ferrer 2000). The lower house only succeeded in passing its bill at the third reading in July 1999 while the senate’s self-imposed deadline of completing the work by mid-2000 was not met. Final passage of Republic Act 9054 was still a year away and four years behind schedule. It was eventually passed by the legislature and signed into law by the president on 31 March 2001. 1 The Structure of Regional Government Republic Act 9054 provides for an ‘expanded’ autonomous region, membership of which would be determined in a plebiscite. The ARMM is clearly identified as “an integral and inseparable” (Art 3(1)) part of the Republic of the Philippines. Certain powers are devolved to the regional government, particularly in education, health, human resources, science and technology, and people empowerment. The national government retains foreign affairs; national defence, and security; postal service; coinage and fiscal and monetary policies; administration of justice; quarantine; customs and tariff; citizenship; naturalization, immigration and deportation; general auditing; national elections; maritime, land, and air transportation and communications, except intra-regional operations; patents, trademarks, and copyrights; and foreign trade. The ARMM slots into the territorial hierarchy between central government and province or city. This makes for a long supervisory chain. Formally, the president supervizes the regional governor, who looks after the provincial governors and city mayors. The provincial governors supervise the municipal mayors, who like their city counterparts supervise the barangay (local community) heads. In turbulent parts of Mindanao, it is sometimes difficult for these formal arrangements to be realized on a permanent basis. Because of this, and to reflect the ARMM’s particular characteristics, the regional government enacted its own lo-

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cal government code in 1993. However, this code has never been implemented and was not revised to accommodate RA 9054. Local government units (LGUs) thus continue to operate according to the 1991 Local Government Code. The regional governor is an ex officio member of the National Security Council. A couple of other intergovernmental matters are qualified by the phrase ‘as far as practicable’. These are the appointment of the regional governor’s recommendees to the national cabinet and executive departments and constitutional bodies. The regional assembly is the ARMM’s legislative body, comprised of popularly elected members and elected sectoral representatives from among agriculture, labor, urban poor, disabled, indigenous cultural communities, youth, and women. The number of sectoral representatives cannot be more than 15% of the regularly elected members. All members have three-year terms and cannot serve more than three consecutive terms. Bills require three readings for approval. Chief among these are the annual budget for the regional government and a regional public works act . The regional governor can sign into law or return a bill to the assembly for reconsideration. A two-thirds majority can then make the bill into law whatever the governor thinks. The assembly can change local government boundaries subject to the standards set in the Local Government Code 1991 and the approval of a plebiscite. The assembly can also enact a civil service law concerning appointments to government positions. However, for up to six years, national government rules on eligibility, conduct, and other civil service matters will apply. The chief executive (regional governor) and deputy (vice governor) are popularly elected as a team from the same party or coalition of parties. Both officials can serve a maximum of three terms of three years each, just like provincial governors, mayors, and congressional representatives. The governor selects a cabinet of not more than ten persons, six of whom must come from “indigenous cultural communities,” which are comprised of Muslim groups and tribal communities (Lumads). An executive council of three deputies representing the Christians, indigenous cultural communities, and the Muslims is appointed by the governor. The governor controls the regional executive commissions, agencies, boards, bureaus, and offices and is responsible for senior appointments. RA 9054 declares that the ARMM will “enjoy fiscal autonomy.” In practice, national government transfers still account for 97% of the ARMM government’s income, even though there is provision for retention of 70% of internal revenue taxes generated in the region. ARMM government income is subject to semi-annual and annual audits by the National Commission on Audit and the rules of the Department of Budget and Management. If there is a failure to comply with these rules, the president can suspend or dismiss offending officials. Rules of the Department of Budget and Management also govern revenue generated by the regional government and that received from donors. The ARMM government has enacted its own local revenue code, but it is only partially implemented. Most of the LGUs in the ARMM fall into the two lowest income categories and obtain over 90% of their revenue from central government. Real property taxes should be a major source of local government income, but a

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thorough property assessment has not been carried out since the mid-1990s. The possibility of raising additional income is hampered by economic underdevelopment, poor institutional capacity and security concerns. The situation is exacerbated by poor awareness of tax laws and low levels of compliance with them. 2 Health and Social Services Health is mentioned only in passing in RA 9054. In one of the guiding principles and policies it is stated that the regional government “shall provide maintain, and ensure the delivery of … basic and responsive health programs” (RA 9054 Art III(11)). Health services were devolved to local government units under the Local Government Code 1991. Health programmes, projects, and monitoring and supervisory activities are evident in the planning forums and documents that are prescribed in the act for the regional government. Health service delivery remains a provincial, city, and municipal responsibility. Health gets a few further mentions in association with social services and welfare provisions. Social welfare functions were also devolved in 1991 under the national Local Government Code. Nevertheless, in an abrupt sweeping statement, the regional assembly is enjoined to “enact measures to provide and promote social services” (RA 9054 Art XV(2)). It must also maintain an ‘effective’ food and drug regulatory system. Further legislation is required on child health and development, including support for the ‘physically challenged’ and other disadvantaged persons; and the protection and development of the rights of women and indigenous populations. The regional government is to ‘evolve’ a housing programme in cooperation with the private sector to provide adequate low-cost housing and other basic services. The regional government must also not only recognize the Filipino family as the foundation of the nation but seek ways to “strengthen its solidarity and actively promote its total development”, however that may be interpreted (RA 9054 Art XV(5)). Finally, the regional government “may” create an office of youth affairs. 3 Education Providing “quality education” is identified as a top priority of the ARMM in RA 9054. The regional government assumes responsibility for the schools, colleges, and universities in the ARMM as a ‘subsystem’ of the national education system. The act identifies a long list of policies and principles that “the integrated system of quality education” should follow. Values assume an important position – Filipino and Islamic values are to be perpetuated; peaceful settlement of disputes should be inculcated in students; patriotism and nationalism are to be promoted; and consciousness and appreciation of ethnic identity developed. Religious instruction is optional. English and Filipino are the official languages of instruction with Arabic as an auxiliary. The latter is important in the Islamic madrasah educational system, where religion is of central concern. Other regional languages may also be used as auxiliary languages for instruction and there is even provision for the highly unlikely evolution and development of a regional language among the far-flung and linguistically diverse population.

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The structure and administration of education retains a close connection with the national system. The act confirms the creation of a regional Department of Education, Culture and Sports to supervise and regulate both public and private schools. State colleges and universities are parts of the regional education subsystem but have academic and fiscal autonomy and remain governed by their own charters. The organizational structure of the ARMM subsystem must follow the basic structure of the national system with the same number of years required at each level. The regional education department should develop school curricula “that are relevant to the economic, social, political, cultural, moral, and spiritual needs of the people in the autonomous region” (RA 9054 Art XIV(3)). Responsibility for the provision of learning aids and instructional materials is also given to the regional government but textbook preparation, writing, revision and printing is a joint responsibility of central and regional governments. Personnel matters are under regional government control but national minimum standards must apply. Thus, regional government is responsible for selection, recruitment, appointment, and promotion of both teaching and non-teaching personnel. Regional standards for personnel matters may be imposed by the regional government but must not be below those of the national Department of Education, Culture and Sports and the Technical Education and Skills Development Authority. Existing personnel cannot be removed if they have already satisfied national civil service eligibility. Whether national standards actually apply in the region’s various zones of conflict is doubtful. For example, it is difficult to recruit teachers with the prescribed formal qualifications. While “management, control and supervision” of education are placed in regional hands, it is the national agencies for education that are given the job of monitoring compliance with national education policies, standards, and regulation. The regional government is invited to participate in the “policy and decision-making activities of their counterparts of the central government or national government in matters that affect the regional educational subsystem” (RA 9054 Art XIV(4)). Curiously, the Koranic-based madrasah system is to be supervised and periodically reviewed by the national Department of Education, Culture and Sports. Policy for the madrasah is a regional responsibility, although there have been recent national urgings to “mainstream the madiris” by standardizing the curriculum, introducing new subjects, and upgrading the teachers (Bagayaua 2002). Funds for education are provided by the national government to the regional government in the General Appropriations Act and are released directly to the regional treasurer. Donations to public or private universities, colleges, and schools are tax deductible from regional government charges. Donations can be sought and received from overseas as well as from domestic sources. The regional government is obliged to provide scholarships to qualified but poor students at all levels of education, and at least 15% of the education budget must be devoted to these scholarships. The scholarship programmes of the central government Commission on Higher Education and Technical Educations and Skills Development Authority also pass to regional control. The regional government is also

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called upon to provide financial assistance to “disadvantaged but deserving” students in addition to those covered by the 15% of the educational budget supposedly allocated to scholarships. 4 Economic Policies RA 9054 has much to say on the regional government’s role in the economy and gives it a wide-ranging mandate for promoting economic development in an economically underdeveloped region. The ARMM is the poorest region in the country, with official figures showing 68% of the population living in poverty. According to the Filipino Report Card of the Asian Development Bank, the ARMM has the country’s highest levels of dissatisfaction with government services and has welfare indicators that are all below the national average. It is therefore a priority of government to promote economic development and poverty alleviation. The regional government can encourage and support the establishment of economic zones, industrial centres, ports, and growth centres. Incentives can be offered to investors, such as tax rebates and holidays. The construction of transport and communications facilities to ‘expedite’ economic development is identified as a priority of the regional government. Delivery of power services is another priority. To facilitate this, the regional government may also establish and operate ‘pioneering public utilities’, which it may later sell to cooperatives or other collective organizations. This seems to be an extension of the regional government’s obligation “to promote profit sharing and broaden the base of ownership of business enterprise” (RA 9054 Art XII(15)). Generating such economic growth is an extremely difficult task in a region shunned by capital because of its association with armed conflict, kidnapping, bombings, and limited human resources and physical capital. To preside over economic development is a Regional Economic and Development Planning Board. It is chaired by the regional governor with members including provincial governors and city mayors, the Speaker and two members of the regional assembly, and five people from the private sector. The board’s purpose is to serve as “the planning, monitoring, and coordinating agency for all development plans, projects, and programs intended for the autonomous region” (RA 9054 Art XII(10)). It recommends the annual work programmes and comprehensive development plan for the ARMM to the regional assembly. Once these items are approved, the regional governor theoretically must implement them. Lack of capacity, shortage of funds, and political manoeuvring may prevent effective implementation. The board must also design and maintain a master plan for “total development of the region” taking into account the development plans of provinces, cities, municipalities, and barangays in the ARMM. This master plan should include “the comprehensive and integrated urban and rural development policies, plans, programs, and projects” specified in Article XI of RA 9054. It has been slotted into the updated medium-term Philippines development plan. Not only is the ARMM government responsible for regional planning but also it is given the task of strengthening the planning bodies of lower level subnational government units.

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While the act does acknowledge the private sector as the ‘prime mover’ of trade, commerce, and industry, it nonetheless gives the regional government a range of tasks to facilitate the process or even become directly involved in. It has an important role in supporting the development of entrepreneurial capability. Cooperatives and cottage industries are also to be promoted and protected by regional government. The regional government is to encourage the establishment of banks and financial institutions, including foreign banks, in the region, subject to the ‘supervision’ of the central bank. The latter is also given the task of establishing an Islamic bank in the region and authorizing its branches. It must set up its own Bangko Central Regional Branch with full banking services. This replaces its ‘regional office’. Away from the bureaucracy of banking, the regional government is somehow supposed to regulate the barter trade and counter-trade with neighbouring Indonesia, Malaysia, and Brunei. Such regulation is an impossible task given the porosity of the international borders in the Celebes and Sulu Seas. The ARMM government should also look after consumer interests and promote the preferential use of local labour. A final financial matter is the rather vague provision that the regional government will “regulate and exercise authority over foreign investment within its jurisdiction” (RA 9054 Art XII(34)). The regional government may itself seek loans from both domestic and foreign sources. While the region remains such an unattractive destination for investment capital, the ARMM government will have little foreign investment to supervise and few loans to administer. The act devotes a few paragraphs to regional government’s role in agriculture, fisheries, and aquatic resources. Its primary task is to look after the rights and welfare of the workers in these activities in the predominantly rural ARMM. There is the briefest of statements asserting the regional government’s function of encouraging agricultural productivity, and diversified and organic farming. It ‘may’ enact an aquatic and fisheries code to “enhance, develop, conserve, and protect marine and aquatic resources” (RA 9054 Art XII(24)). To pursue its primary industry responsibilities, the regional assembly must create a Bureau of Agriculture and Fisheries and then define its composition, powers, and functions. The act gives no advice on what these may be. The possibility of a regional law on agrarian reform is flagged but not prescribed. Natural resources are seen as an important responsibility of regional government. It is awarded “control and supervision over the exploration, utilization, development, and protection of the mines and minerals and other natural resources within the autonomous region (RA 9054 Art XII(5)). It can grant franchises, concessions, leases, permits, and licenses over mineral, forest, and agricultural lands. Consultation with cultural communities is mandatory where their lands are involved, but the act does not indicate if the regional government can overrule opposition from such groups. The fees for exploration and utilization are set by the regional assembly. Citizens of the autonomous region have preference in the exploration, utilization, and development of the natural resources, although in most instances they would lack both capital and technology. Where they do sometimes operate is in small-scale mining – an unruly activity, which

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the regional government is supposed to regulate. Foreign involvement in natural resources can be no more than 40% ownership of the organization involved. The central government retains control over ‘strategic minerals’, such as uranium and petroleum, all sources of ‘potential energy’, national reserves and aquatic parks, and existing forest and watershed reservations. As compensation, the regional government does receive a share of revenues from these strategic minerals, which it then distributes to other local government units according to a set formula. Protection of the environment is mentioned in various places in the act. The regional government is to give priority to environmental protection and sustainable development. More specifically, the regional assembly can pass laws to provide compensation and rehabilitation to peoples and areas adversely affected by natural resource development. Corporations operating on ancestral domain lands are required to safeguard or restore ecological balance. The regional government must ‘immediately’ instigate measures to ensure that at least 50% of the ARMM is covered with trees. To assist this process, 10% of the internal revenue taxes of the regional government and all other local government units should be devoted to reforestation and development of the environment. It is not clear whether this actually occurs. A final item of development responsibility for regional government is tourism. Indeed, it is awarded primary responsibility for promoting a tourist industry that upholds, respects, and maintains the diverse cultural heritage and moral and spiritual values of peoples in the region. Elsewhere in the act, the regional government is given the job of protecting and promoting culture and given the option of setting up a bureau of cultural heritage. Similarly, the regional assembly may set up a regional tourism office. This is unlikely to be a priority, as foreign governments issue stern travel warnings to their citizens against venturing into the ARMM. Sporadic clashes between armed Islamic groups and the military, kidnappings by the Abu Sayyaf and criminal gangs, and other examples of violent disorder mean that tourists are few and far between. 5 Administration of Justice The administration of justice has been an important concern for the region’s inhabitants and is reflected in the act’s attempt to satisfy diverse constituencies through the creation of a plural system. A tripartite structure was defined and comprises the national system of courts, the Muslim shari’a courts, and tribal courts for indigenous cultural communities. The shari’a and tribal courts are only applicable to members of the Muslim and indigenous cultural communities. Where conflicts occur between the different types of law, national law prevails, with the Supreme Court as the overriding authority for the whole regional legal system. The act has little to say about the national system except on appointments. It is deemed desirable but not compulsory to appoint one justice in the Supreme Court and two in the Court of Appeals from qualified persons in the ARMM. A consultant to the Judicial and Bar Council is to be appointed by the president on the recommendation of the regional governor to advise on appointments to

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judicial positions in the ARMM. A deputy court administrator for the ARMM is appointed by the Chief Justice of the Supreme Court, also on the recommendation of the regional governor. Although the 1996 peace agreement makes no mention of shari’a courts, the ensuing act has much to say about their powers and operation. These courts are not new institutions and the contents of the RA 9054 reiterate and extend earlier legislation. One innovation is the creation of a Shari’a Public Assistance Office to provide free legal assistance to poor litigants. A Shari’a Appellate Court is also created and has exclusive appellate jurisdiction over all cases tried in the existing shari’a district courts. The act provides details of positions in the Shari’a Appellate Court, eligibility, and the appointment process. The Shari’a circuit courts continue to function as before. The act also provides for the possibility of creating a system of tribal courts, including a Tribal Appellate Court. The tribal courts may “determine, settle, and decide controversies and enforce decisions involving personal and property rights of members of the indigenous cultural community concerned” (RA 9054 Art VII(19)). They are also awarded authority over minor crimes within indigenous communities. The composition and jurisdiction of the tribal courts will be determined by the regional assembly, which is awarded the daunting task of codifying the customary laws of Muslim groups and indigenous cultural communities. The maintenance of law and order is to be given priority status by the regional government. This is to be expected in a region that has been host to considerable political and criminal violence since at least the 1960s. However, ensuring “peace and the protection of life, liberty, and property of the people in the autonomous region” is an extremely difficult task in this context. The act creates a Philippine National Police Regional Command known as the Special Regional Security Force (SRSF) or the Regional Police Force. This is the force into which the former MNLF forces were integrated in Phase I of the 1996 peace agreement. The regional assembly is to pass laws governing the SRSF, but they must be consistent with the relevant parts of the Constitution and the provisions of RA 9054. The functions of the SRSF are unremarkable and include normal police functions such as enforcing congressional and regional assembly laws; maintaining law and order and ensuring public safety; effecting arrests, searches, and seizures in accordance with the Constitution and pertinent laws; detaining persons for lawful periods and informing them of their constitutional rights; observing the human rights of all people in the region; and licensing firearms and initiating drives to secure surrender of unlicensed firearms. The SRSF is a civilian organization. It operates in the ARMM but its personnel can be deployed elsewhere in the Philippines if required by the National Police Commission and authorized by the president. The SRSF is headed by a regional director and two deputies who are drawn from the ranks of the professional police force, preferably from within the ARMM. Its offices at provincial, city, and municipal levels are also to be headed by professional police.

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The regional governor is given considerable influence and control over the SRSF. The governor is deputy of the National Police Commission in the region and ex officio chair of the Regional Police Commission. Most importantly, the governor exercises “operational control and general supervision and disciplinary powers over the Regional Police Force” (RA 9054 Art XIII(8a)). The governor also has authority over the regional director regarding the deployment of the SRSF and can impose administrative penalties on police after hearing citizen’s complaints. Finally, the governor recommends to the president the candidates for regional director and deputy directors of the SRSF. The SRSF is not the only official armed force in the ARMM. The act clearly states that “the defense and security of the autonomous region shall be the responsibility of the central government” (RA 9054 Art XIII(11)). For this purpose, a regional command of the Armed Forces of the Philippines (AFP) has been specified in the act. This regional command remains under central government and AFP control. The regional governor may ask the president for the deployment of the regional AFP command if there is invasion, rebellion, or simply lawlessness and violence where the SRSF cannot cope. But the president may take independent action to send the AFP into the region in order to deal with violent situations such as the efforts to destroy the Abu Sayyaf in the province of Basilan in 2001–2002. 6 Human and Minority Rights One of the major themes of RA 9054 is guarantees for the rights of the different communities within the ARMM, whether minorities or not. Early in the act there is a strong statement recognizing, protecting, and guaranteeing the beliefs, customs, traditions and freedom of religion for people in the region. The regional assembly is then charged with adopting the necessary measures to achieve this state of affairs. Also among the guiding principles and policies is a direction to the regional government “to uphold and protect the fundamental rights of women and children,” the right of women to engage in lawful employment, and the right of women and children to be protected from exploitation, abuse, and discrimination (RA 9054 Art III(10)). Later in the act, the regional government is given the task of ensuring the representation of women in ‘appropriate’ decision and policy-making bodies. The rights of indigenous cultural communities is a recurrent theme in the act. Two types of such communities are recognized: tribal peoples (Lumads) and the Islamic Bangsamoro people. As already indicated, the act provides for special education and legal systems for these communities. They should also be able to rely on regional government to protect their ancestral domains. Strategic minerals and other strategic resources appear to be exceptions to total community control over ancestral lands. The act also orders the creation of a regional human rights commission within the ARMM. It will perform the functions of the national government’s commission on human rights, although there is allowance for additional functions to enhance human rights in the region. The composition of the regional commission should reflect the ethnic distribution of the resident population. It is comprised

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of a chair who must be a lawyer and resident of the ARMM and two commissioners who are preferably lawyers. The reference points for human rights in the ARMM are made explicit in the act. These include the act itself, the Constitution, the Geneva Convention, the United Nations Charter, the United Nations Declaration on the Rights of Indigenous Peoples, and the Universal Declaration on Human Rights. Violations of human rights are still regularly reported by both international and domestic organizations. IV Reaction to the 1996 Peace Agreement A

Autonomy in a Decentralized Policy

The first phase of the peace agreement can be summed up as the delegation of some executive authority by the president. Legislative authority remained in the hands of the Congress, the local government units (LGUs) and the ARRM. But even the delegated executive authority had its limits, as the LGUs were already responsible for administering many of their own affairs. The Local Government Code of 1991 involved substantial decentralization of responsibility for local affairs. The momentum of ‘people power’, which had swept Ferdinand Marcos out of and Corazon Aquino into the presidential office, led to an ambitious programme of devolution or political decentralization. The Philippine hierarchy of subnational territories builds from the grassroots barangay, through to the municipality and city, and on to the province. At each level, there is an elected assembly to legislate on a variety of matters (Turner 1999; Tapales 1996). The barangay also has the role of interest articulation. Elections are held every three years and seats are hotly contested. At municipal, city, and provincial levels, the electorate are asked to vote for the chief executive (mayor or governor) and members of the sanggunian (council) The range of functions allocated to LGUs was greatly enhanced with the Local Government Code of 1991. This provided for the decentralization of basic services in health, agriculture, public works, social welfare, and environment and natural resources. The personnel, buildings, equipment, and financial resources for these activities were transferred from central bureaucracies to LGUs. The LGUs also have the authority to raise revenue from licenses and other local levies and are encouraged to seek additional innovative ways of generating income. A further important change decreed in the Local Government Code was the compulsory involvement of NGOs and People’s Organizations (POs) in local governance, especially through Local Development Councils at all levels. This system of decentralized local governance was already operating when the 1996 peace agreement was signed. The enactment of the region’s own local government code in 1993 had little effect as it was not implemented. The newly created SZOPAD, SPCPD, and CA did not appear to contest the powers and operations of the LGUs as specified under the national Local Government Code

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1991. According to Paragraph 6 of the peace agreement, “the local government units in the area including the ARMM, shall continue to exist and exercise their functions in accordance with existing laws.” Presumably the ARMM’s local government code was one of those laws, even though it was having minimal effect on local governance. Then, in Paragraph 18, the SPCPD was given the function of providing “support to local government units as necessary.” Thus, the temporary institutions established under phase one of the peace agreement had no authority over the functions of government. The LGUs got on with delivering decentralized services, as did the field offices of central agencies such as the Department of Education, Culture and Sports (DECS). The SPCPD and CA were supposed to develop horizontal linkages with the LGUs and the deconcentrated offices of central government but they did not have authority over them. They were to give “support”, but how that support should be organized remained unspecified in the agreement. The LGUs were under no obligation to accept SPCPD and CA support or advice. However, most LGUs were poor, characterized by low income and development indicators consistently below national averages. This provided the opportunity for the SPCPD and CA to exert influence and win friends in local places, as considerable developmental funding was anticipated to rebuild communities in the SZOPAD. This funding would be channelled through the SPCPD, thereby making cooperation more alluring for LGUs. Whether the SPCPD and CA had much autonomy is debateable. The financial lifeblood and any authority they acquired derived from the Office of the President. The SPCPD and the CA might even be viewed as extensions of the Office of the President, albeit unpredictable ones. The signing of the peace treaty did not mark the cessation of international involvement. There was still a place, after more than twenty years of engagement, for the OIC. According to Paragraph 13 of the agreement, the OIC was to be part of a Joint Monitoring Committee with representatives of the MNLF and government of the Philippines. The task of this committee was “to review and identify agreements that can be immediately implemented, and monitor the implementation of this Agreement during Phase I.” No other international body was mentioned in the agreement but it was anticipated that under UNDP (United Nations Development Programme) leadership there would be an influx of multilateral and bilateral donors anxious to extend assistance in the “land of promise.” Finally, on the individual level, the peace agreement represented the triumph of Nur Misuari. He had transformed himself from long-time guerrilla leader into legitimate politician and won several prizes as a consequence. First, he was appointed the Chair of the SPCPD. Second, as incumbent of this position he became “the head and presiding officer” of the CA. Finally, the signing of the peace agreement just before the elections for the Governor of the ARMM allowed Misuari to run unopposed for this position. As chair, presiding officer, and governor Nur Misuari would be identified as saviour or villain in the quest for peace and development on Mindanao. Clarification of his multiple roles and the relationships between the SPCPD and existing government agencies would have been of

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considerable assistance but the Executive Order 371 to implement the agreement continued the theme of vagueness. B

The 1996 Peace Agreement: Support and Opposition

During the early years of implementing the peace agreement, the principal supporters remained its chief sponsor, President Ramos, and his executive staff. The peace was one of the preconditions for the economic development of Mindanao that the president so urgently desired. Such development would facilitate Philippine efforts to catch up economically with more successful ASEAN neighbors. Ramos had clearly flagged his intentions on Mindanao immediately on assuming the presidency by creating the first ever Office of the President in Mindanao. Furthermore, he appointed as its head Paul Dominguez, a businessman who shared Ramos’s visions, strategies, and penchant for hard work. Dominguez declared his intention to generate “quick starts, early results on infrastructure and peace and order problems to gain widespread support” (Vitug and Gloria 2000: 253). This executive commitment was important in increasing infrastructure and private investment in Mindanao, thus producing consistent economic growth. Throughout his presidency, Ramos emphasized the importance of Mindanao and the need to have a Mindanao-wide strategy instead of the fragmented and stuttering approaches of the past. As Vitug and Gloria (2000: 255) observe, “No other president gave such consistent and sustained attention to Mindanao.” His successor, Joseph Estrada, did not continue the trend. Elected with an overwhelming popular mandate in 1998, the new president had garnered considerable support in Mindanao. This was odd given his lack of coherent policy on Mindanao. It was described as a “clueless executive” in this regard (Vitug and Gloria 2000: 256). The Office of the President in Mindanao was closed – Dominguez had already gone. In their place emerged a Presidential Assistant for Regional Concerns (PARECO) to cover the whole country. Mindanao was split into two regions with the heads of these regions reporting to the Executive Secretary in Manila. Paradoxically, this represented a re-centralization of Mindanao affairs where nobody was specifically in charge of the affairs of the island. Mindanao had slipped down the list of policy priorities. This was strange given Estrada’s election on a pro-poor platform and Mindanao’s appalling incidence of poverty. The Congress and elected politicians in local government on Mindanao did not share a unified view on the SPCPD, the CA, and the future prospect of an expanded ARMM. The opposition, which had attempted to prevent the peace agreement continued its anti-SPCPD mantra. In the 1998 elections, some proagreement politicians were voted out of office. Rosalita Nuñez, the Mayor of General Santos, a booming city in the south, was ousted by the husband of one of the oppositionist ‘Tres Marias’. In Zamboanga City, another Maria switched from congressional representative to mayor, leaving her son to occupy the congressional seat. Their election slogan in this largest city of the SZOPAD was “No to SPCPD.” Even among the Muslim constituency, the MNLF seemed to be losing support. MNLF candidates who were mostly associated with the political party of

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President Ramos polled poorly. There were only two successes among the MNLF leaders who ran for Congress or important local government posts (Gutierrez 1999). The MNLF’s leadership of Mindanao’s Muslim population was under threat from the MILF and the Abu Sayyaf. During the peace negotiations and subsequent implementation of the agreement, the MILF had steadily expanded its geographical coverage, the numbers of its supporters, and its military capacity. The MILF had been excluded from the peace talks and had not endorsed the agreement. Their position, said leader Hashim Salamat in 1998, remained “the re-establishment of a sovereign Moro Islamic State” (Zahir 1998). And they seemed to be to doing this as part of a “transition from a guerrilla force into a ‘semi-autonomous army’” (May 2001: 269). Their sprawling Camp Abubukar headquarters in Maguindanao and the substantial Camp Bushra in adjacent Lanao del Sur were effectively like autonomous municipalities. The AFP was concerned by MILF expansion and wished to contain them within their two major camps. Other autonomous military settlements of the MILF were perceived by the AFP as threats to the territorial integrity of the Philippines. This contributed to a couple of significant breaches of the governmentMILF ceasefire during Ramos’s later years, as intermittent negotiations failed to produce agreement between the two sides. President Estrada seemed to enjoy better relations with the MILF. In the run-up to the 1998 election, the Estrada camp formed an alliance with the MILF. On his election, Estrada even received a congratulatory letter from MILF leader, Hashim Salamat, and a formal peace with the MILF began to look possible. But the anticipated agreement was not forthcoming. MILF adviser Alunan Glang complained that “We’re being taken for granted” (Vitug and Gloria 2000: 156). Formal peace talks stuttered back into life in October 1999 but in early 2000 Mindanao was once again plunged into full-scale war. The MILF occupied two municipalities. The AFP retook them and the situation then degenerated into major military operations against the MILF. The president’s flagging ratings in the opinion polls rose sharply in response to his uncompromising stand against the MILF. Military victories were celebrated as MILF camps, including Abubukar and Bushra, were overrun by the AFP. There was massive dislocation and displacement of population – an estimated 900,000 people – but most MILF fighters simply retreated to continue their 400 years struggle at a later date. The MILF was weakened but the government still needed its cooperation for peace on Mindanao. This was not necessarily the case for the Abu Sayyaf. Eradication had always been the aim of government policy towards this secessionist group. The Abu Sayyaf came to public notice in 1992 after a series of violent incidents against Christian targets in Zamboanga City (Turner 1995a). Over the next few years, there were further Abu Sayyaf bombings, murders, and kidnappings, culminating in Abu Sayyaf participation in the massacre of fifty-three people in a raid on the town of Ipil on the Zamboanga peninsula. The Abu Sayyaf was described as espousing “Islamic fundamentalism” or labelled as “extremist bandits” (Turner 1995a). The prime aim was clear – an independent Islamic state in Mindanao

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– and terror was seen as a legitimate way to achieve it. While largely confined to Zamboanga-Basilan-Sulu, the notoriety of the Abu Sayyaf spread far and wide and served to reinforce negative Muslim stereotypes and to raise concerns about whether peace could ever be achieved in Mindanao. Even the MNLF declared their opposition to this radical force. By 1996, the Abu Sayyaf was in retreat. The death of its leader and military reversals led to predictions of its demise or degeneration into yet another bandit group confined to Basilan, one of the Philippines’ poorest provinces. But the Abu Sayyaf ’s small numerical size (probably not more than 300 prior to 1996), its lack of formal structure, and its dubious claims to legitimate representation of the Bangsamoro people had not proven to be handicaps in the business of sowing terror. In the late 1990s, sporadic violent incidents were blamed on the Abu Sayyaf, but it was in 2000 when the group burst back onto the scene in spectacular fashion by kidnapping twenty-one people, mainly foreigners, from an island resort in Malaysia and holding them to ransom in Sulu. Money flowed from the ransoms and recruitment boomed. Another mass kidnapping from a Philippine resort in 2001 ensured that the Abu Sayyaf remained in the national and international consciousness and confirmed the popular view that Mindanao was a dangerous place, outside of the rule of law, and unsuitable for investment. Many thought that peace and the Abu Sayyaf were incompatible. On the international scene, the OIC remained involved and supportive of the peace process. The OIC assumed the role designated in Paragraph 12 of the peace agreement of “monitoring the full implementation of this agreement during the transitional period until the regular autonomous government is firmly established and for this purpose, help generate broad international support for the Zone of Peace and Development.” Other international actors also expressed support for the peace process through foreign aid. Spearheaded by the UNDP, both multilateral and bilateral donors sought to invest in development activities that would support the peace agreement. C

Phase One: The SPCPD Performance

If the peace process on Mindanao was to be successful, then much depended on the peace and development activities implemented under phase one of the agreement. The more permanent institutional structures envisaged for phase two would gain little support if poor performance was perceived to be characteristic of phase one. There was substantial opposition to and considerable suspicion of the peace process and the peace agreement among Mindanaoans. Good results from socio-economic development initiatives might encourage others to join the expanded ARMM following the termination of the transitional SPCPD. An early disappointment of the implementation process was the failure of Executive Order (EO) 371 to provide adequate elaboration of the peace agreement. Instead of clarifying the agreement’s generalizations about relationships between institutions and the allocation of authorities, EO 371 was unenlightening. One commentator believed EO 371 had created a “complicated bureaucratic maze” in

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which the new institutions would wander about and make little impact (Gutierrez 1999). The MNLF could hardly be expected to demonstrate good developmental leadership and managerial capacity in the labyrinth of bureaucratic confusion. “Like a fish out of water,” wrote Vitug and Gloria (2000: 98). The transformation of guerrilla fighters into functioning bureaucrats is an enormous challenge. They must alter their organizational structures, patterns of authority and operating methods, which had been created for armed struggle. For peacebuilding these arrangements are inappropriate. Furthermore, the guerrillas turned peace-builders were dealing with a government system long associated with a range of bureaucratic pathologies (De Guzman 1993: Varela 1996: Turner 2001). When a government fails to delineate and delegate in such a context, official performance will suffer. The great hope for peace-building was development plans and projects. War and disorder had contributed to official neglect for over three decades. A post– agreement survey found that 64% of MNLF personnel were unemployed, “their communities characterized by lack of potable water, poor sanitation, poor access roads, inadequate schools, poor community health services, poor reproduction support facilities, low productivity and displacement” (Aguja 2000). As the government had limited funds to address these enormous problems the international donors were approached. There was a slow start, but, by December 1997, approximately usd 500 million had been pledged by donors. One of the most significant innovations was the SPCPD-NEDA (the central government planning body National Economic Development Agency)-UN/Multi-Donor Program specifically oriented to assisting MNLF members, their families, and their communities. The programme involved livelihood assistance, small-scale economic projects, vocational skills training, and construction or rehabilitation of community infrastructure. Participation by the beneficiaries was an essential ingredient, as the programme had a strong confidence-building objective. While the programme has undoubtedly produced benefits among the affected communities, there have been criticisms (Aguja 2000). Other stakeholders in local development felt marginalized. This included Christians, Lumads, LGUs ,and civil society organizations. Thus, it did not promote the principal objective of peacebuilding – reconciliation. Paradoxically, the amounts of money were small (only usd 9.1 million as of the end of 1998) and so the tangible benefits have been negligible. The programme management also reinforced the territorial structures of the MNLF as a fighting force. The MNLF ‘states’ (groups of adjacent communities) and their MNLF leaders were used as the references for the programme. This could undermine the position of the LGU as a focal point for governance and developmental activity. The MNLF has also been disturbed by the bureaucratic requirements of the programme which required considerable documentation of MNLF communities. Should peace fail, people in these communities may be at considerable risk. Finally, there has been concern that the SPCPD-NEDA-UN/Multi-Donor Program has created a ‘doleout’ mentality rather than a self-help orientation. That is, MNLF members are entitled to compensation for their years of hardship.

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Other funds have been flowing into Mindanao and SZOPAD. The government calculated that, as of March 2000, more than P30 billion of socioeconomic development funds had flowed into the SZOPAD (GRP 2000). The World Bank set up a Social Fund in October 1997 but ten months later no project had been started. Applicants needed to comply with bureaucratic requirements, which were not always understood or which could not be met. Social funds have been used by the World Bank in many poor countries to provide small-scale infrastructure that benefits the wider community and to use local paid labour in its construction. According to Vitug and Gloria, the World Bank rated the Mindanao Social Fund’s performance as “moderate” but worried about sustainability (2000: 270). Despite these concerns, a new social fund project is set to start in 2003 to expand and build on the original project. The line departments of central government agencies have also built or improved infrastructure, promoted community development, and engaged in other developmental activities. Whether these initiatives can be attributed to the peace process is difficult to determine, but suspicions are that they represent little if any additional investment. But other bilateral and multilateral donors have been active in promoting a range of projects. There is even a reported “consensus in Mindanao that the (peace) process would have failed without donor support” (UNDP adviser, as quoted by Vitug and Gloria 2000: 275). While the Philippine government has been anxious to paint a picture of great investment and achievement in socioe-conomic development, other commentators have been less enthusiastic. In 1998, the OIC monitors noted that: “Development is still wanting and is not anywhere near the target to uplift the sufferings of the people in Mindanao who still live in dire poverty, specially that of the MNLF members and their families” (OIC 1998). The OIC went on to criticize disbursement of funds, the meagre sums allocated to the ARMM, and the institutional inadequacies of the SPCPD. One area for which the OIC reported matters running “quite smoothly” was in relation to the integration of the MNLF into the AFP and PNP. By March 2000, 5,250 MNLF members had joined the AFP, 91% of the agreed quota (GRP 2000). The PNP quota of 1,500 was also nearly achieved. The PNP had recruited 1,250 former MNLF personnel and some had already completed training and were allocated to the Special Mobile Battalion in ARMM. However, the integration has not been without friction. AFP leaders strongly support the process in public statements but are reportedly wary in practice. There have been incidents of MNLF recruits resigning after complaints of discrimination and ethnic bias (May 2001). Some existing AFP personnel have let it be known that they do not welcome the former enemy and resent their exemption from particular requirements.

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V

Implementing Phase Two of the 1996 Peace Agreement

A

The Delayed Transition

The timetable for transition from phase one to phase two had always been impractical. Three years was too short a time to persuade people in SZOPAD that their interests would be best served by joining the expanded ARMM. The problems encountered in implementing phase one simply worsened the prospects for encouraging Mindanoans to vote for inclusion into the expanded ARMM of phase two. It was no surprise that the plebiscite for the expanded ARMM and new ARMM elections were postponed. The government, the MNLF, the OIC and the population of Mindanao knew that a plebiscite would result in little or no expansion. Basic developmental problems had not been satisfactorily addressed and ingrained attitudes of mistrust had not been overcome. Also, when the specified time for transition to phase two arrived, no bill had been passed in Congress to amend the original ARMM Organic Act (RA 6734). Three readings in the lower house followed by another three in the Senate presents a formidable challenge to the proponents of any legislation. A tortuous and lengthy path is usual, especially for contested legislation such as that for the ARMM. Even the government described the democratic process of Congress as “tedious yet rightful” (GRP 2000). On 15 July 1999, House Bill (HB) 7883 to amend RA 6734 eventually passed all readings in the lower house and moved on to the Senate. By the end of May 2000, the government was confident to report that the country had reached the “threshold in the implementation of the Peace Agreement” and to reiterate its “sincerity and commitment to the full implementation of the Peace Accord” (GRP 2000). The legislative process would be completed in 2001, almost five years after the signing of the peace agreement and three years behind schedule. A stumbling block was that 2000 was such a bad year for the peace process. After starting his administration by being inattentive to Mindanao, President Estrada switched to a policy of all-out armed conflict with the MILF in central Mindanao. In the southern islands of Sulu, he permitted protracted negotiations with the Abu Sayyaf for the release of foreign hostages. For SZOPAD’s Christian majority, these events confirmed their opposition to the peace agreement, particularly incorporation within the ARMM. The MILF and the Abu Sayyaf actually wanted independent Islamic states. Within the MNLF, all was not well for Nur Misuari, the long-time leader, Chairman of the SPCPD, and Governor of the ARMM. Many of his MNLF constituents felt they had not received the anticipated dividends of peace. They now questioned Misuari’s performance. He was known to have grandiose visions for Mindanao’s development – floating airports, high-rise cities, and multi-lane highways. All of these were far removed from the real, basic needs of the MNLF members. There were also rumours of self-aggrandizement and accusations that he spent too much time out of Mindanao, often overseas. He countered by claiming he was there raising money for Mindanao’s development. But little if any finance ar-

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rived as a result of Misuari’s efforts, even from Islamic sources. Misuari had also lost his strongest ally in government, President Ramos. President Estrada was not nearly as accommodating. By the end of 2000, the future was looking bleak for Nur Misuari and the prospects of a strong MNLF. In late 2000, Mindanao became even less of a policy priority. The nation focused its attention on sensational accusations of graft and corruption against President Estrada. A Senate enquiry was broadcast on television and the nation watched. There were popular protests and officials resigned. People power erupted onto the streets once again and, in January 2001, Vice-President Gloria Arroyo stepped up to assume the presidency with the backing of the military and the church. This change of government signalled a re-invigoration and re-think of Mindanao policy. The belligerent Estrada approach towards the MILF was replaced by the order to suspend military operations against the MILF. This would, said Arroyo, create “the proper environment for the reconstruction of peace talks” (Philippine Daily Inquirer 21 February 2001). President Arroyo’s attitude towards the Abu Sayyaf was far less accommodating. She knew that the group was marginalized, with no support from leading OIC states such as Libya, Saudi Arabia, and Indonesia, and was disowned by the MNLF and MILF hierarchies. Arroyo could thus take strong action against the ‘bandits’ who made up the Abu Sayyaf. Such action was precipitated by another spectacular Abu Sayyaf kidnapping. On 27 May 2001, twenty hostages were taken from a Palawan beach resort and transported to Basilan, the Abu Sayyaf heartland. The government eschewed negotiations. Instead, a large military force was gathered to pursue the kidnappers and their hostages. When this failed to secure the release of the hostages, President Arroyo ordered the arrest and interrogation of known or suspected Abu Sayyaf supporters on Basilan and in Zamboanga City. All of this activity was cordoned off in Basilan. The main events for the peace process were happening elsewhere, and happening rapidly. As soon as she had assumed office, President Arroyo had approached Hashim Salamat, the MILF leader, to determine his attitude to peace talks. The feedback was positive. Crucial to this fresh climate of negotiation was a new actor to the peace process – the government of Malaysia. President Arroyo had begun cultivating a good relationship with Malaysian Prime Minister Mahathir while she was vice-president. Malaysian assistance was thus forthcoming in facilitating the early meetings with the MILF, and Arroyo availed herself of such assistance knowing that Malaysia was opposed to secession. Thus, in March 2001, the Philippine government met with the MILF in Malaysia and agreed to: • Continuous talks until a negotiated peace settlement is reached; • Immediate formation of an MILF panel; • Immediate cessation of offensives by the MILF; • Commitment, by both parties, to respect and implement past agreements subject to discussion of details of implementation by both sides; • Holding the first formal meting at a mutually agreed venue within three months of the signing of the agreement; and

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•

Undertaking of relief and rehabilitation measures for evacuees and joint development projects in areas affected by the conflict (Philippine Daily Inquirer 14 April 2001).

The MNLF and the MILF were also talking. The top body of the MNLF, the Council of Fifteen, formally removed Misuari from the MNLF chairmanship on 29 April 2001 on the grounds of “loss of trust and confidence” due to his poor performance (Philippine Star 10 July 2001). In June, an MILF delegation accepted an MNLF invitation to join the MNLF at the Twenty-eighth Session of the Islamic Conference of Foreign Ministers held in Mali. The OIC’s Committee of Seven for Mindanao had now grown to eight with the inclusion of Malaysia. Presidential peace adviser Eduardo Ermita expressed the view that the MNLF-MILF rapprochement “augurs well for the future of the MNLF-MILF unity talks and the overall prospect [of the government peace talks with the MILF]” (Mable 2001: 19-20). Ermita saw the single representation of a unified MNLF-MILF as more advantageous for talks and for securing the cooperation of more Muslim groups. By contrast, the Philippines defence secretary interpreted these events as “a potentially bigger threat.” (Mable 2001: 20). In early August 2001, after further talks in Malaysia, it was announced that the MNLF and MILF had agreed to unite, although no details of the agreement have ever been released and the two organizations continued to act independently (Philippine Daily Inquirer 3 August 2001). The act of Congress required as the foundation for phase two of the 1996 peace agreement was eventually passed in Congress in February 2001 and signed into law by the president on 31 March 2001. This meant that President Arroyo could now move on the long-delayed plebiscite that would usher in phase two of the 1996 peace agreement. The purpose of the plebiscite was to seek new member territories for the expanded and final ARMM. At the urging of the MNLF and MILF, the OIC ministers had issued a statement from their Mali meeting urging the Philippine government to postpone the plebiscite until 2003. The government declined to follow this route, saying the 15 August 2001 date for the plebiscite and the 26 November 2001 elections for positions in the ARMM were in RA 9054 and were therefore law. President Arroyo asked the voters to “forge unity out of our diversity.” Nur Misuari urged a boycott by Muslims, calling the plebiscite “an exercise in futility.” Celso Lobregat, congressman for Zamboanga City, said his city “already enjoys local autonomy through the local government code”, while the Muslim governor of Sultan Kudarat Province thought his people were better off without the ARMM and said that joining it “would be like bashing our own heads with a rock” (Philippine Daily Inquirer 13 August 2001). The voting passed off peacefully but there was a low turnout of about 50%, well below normal electoral contests. The result was a foregone conclusion – a resounding ‘No’. Of the eleven provinces and fourteen cities of the SZOPAD that were not members of the existing ARMM, only one province (Basilan) and one city (Marawi City) chose to join the expanded ARMM. There were no close calls. In some cases more than 95% voted ‘No’.

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VI Current Status and Future Prospects 32% of Mindanao’s population resided in the SZOPAD. But that territory no longer exists. Neither does the SPCPD, which supposedly oversaw development in it. The new ARMM contains 2,745,00 people, only 15% of Mindanao’s population. According to the 1996 peace agreement, this ARMM is the final act in sorting out the institutional shape of the Autonomous Region of Muslim Mindanao that was identified in the 1986 Constitution. But it is not a final solution to Mindanao’s problems. It may not be any solution. The performance of the original ARMM left much to be desired and there are severe misgivings about the performance prospects of the latest version. It is an awkward construct satisfying a requirement of the Constitution in a way which will not be in the spirit of the Constitution. The birth of the extended ARMM was marred by political violence and provided the least desirable environment for implementing phase two of the 1996 peace agreement. Nur Misuari, the incumbent governor, had no wish to surrender his position, but in the November 2001 elections for the ARMM he was not a serious contender. Both the MNLF and government had dropped him. They backed other MNLF leaders. Misuari and his supporters on his home island of Sulu reacted to this rejection and tried to stop the election by attacking police and military outposts. In the fighting, approximately fifty persons were killed and Misuari sought sanctuary in neighbouring Malaysia where he was detained for illegal entry. The election went ahead as scheduled and Parouk Hussin, the MNLFgovernment candidate, won the governorship by a landslide. A legal attempt to block Hussin from taking up his new position was defeated but Misuari supporters in Zamboanga City engaged in further skirmishes with the military and at one stage seized over 100 hostages in exchange for secure passage to another MNLF camp (Philippine Daily Inquirer 7 January 2002). Twenty-five Misuari supporters were killed in that incident. Other engagements between the Misuari faithful and government forces have been reported from other parts of the ARMM as has collaboration with the Abu Sayyaf. Meanwhile, the Malaysian-sponsored peace negotiations between the government and MILF came to a halt in March 2002 following clashes between government forces and the MILF. Plans for resuming these negotiations were resuscitated only to be postponed due to new armed clashes and bombings in 2003. In Basilan, the large government force pursuing the Abu Sayyaf was joined by US advisers as part of America’s global anti-terrorist initiative. Misuari returned from Malaysia to face charges of rebellion but was held in Luzon, a long way from his support base. These were inauspicious circumstances for the inauguration of Parouk Hussin as governor of ARMM and of the new regional members. Hussin vowed to steer a different course from his predecessor. He stressed “accountability” and that through his “seriousness, dedication and determination” he would develop the poor region (Philippine Daily Inquirer 6 January 2002). He faces enormous challenges. He is taking over a government that has a reputation for inefficiency and ineffectiveness. Misuari’s removal had been precipitated by his poor performance

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in bringing development to the ARMM. While there is little in the way of systematic study of earlier ARMM management practice, anecdotal evidence suggests severe capacity problems. Organizational structures, processes, and personnel require review and reform. Such basic management problems are not amenable to quick fixes. They are long-term matters. This generates problems for leaders who must answer to constituencies that want to see development happening and to reap some of its benefits as quickly as possible. Hussin may also face financial problems. At his inauguration, he told reporters that the ARMM only had php 400,000 in it treasury but obligations of php million. It is not yet clear whether the financial arrangements set out in RA 9054 will provide adequate revenue for ARMM activities. The question of whether funds actually match functions does not appear to have been fully investigated. Education, the major expenditure, seems secure, as there will be an explicit central government transfer for this sector. However, RA 9054 identifies many activities in which the regional government must be involved. It also lists a variety of organizations that ‘may’ be established. An inherent danger is that these organizations may be established but with inadequate operating expenditure so that their outputs and outcomes are negligible and ARMM income becomes devoted to paying bureaucrats’ salaries rather than producing measurable development outcomes. 86% of regional government budget is used for salaries, leaving little for urgently needed development investment. One answer to Hussin’s prayers is foreign aid. According to President Arroyo, there is usd 1.3 billion of committed official development assistance that the government will pour into Mindanao (Philippine Daily Inquirer 25 April 2003). A significant amount will go to the ARMM. There are several potential dangers for the ARMM. Firstly, governance becomes ‘projectized’ whereby the major flows of money and other resources are found in externally funded projects. Much political competition then focuses on how to access project funding. Secondly, fears have been expressed within the donor and NGO community that hand-out mentalities might have developed in relation to some ARMM constituencies and with regard to certain project activities. This is problematic where sustainable development is the prime objective. Thirdly, the record of aid disbursement to date is characterized by slowness. Much needed projects and programmes are held up, sometimes by endemic bureaucratic dysfunction and sometimes by the turbulence and difficulty of the environment in which such activities are to take place. Finally, Hussin will need to demonstrate and maintain his declared commitment to accountability, as there is an unfortunate record of corruption in Philippine politics and administration. Aid funds are prime candidates for ‘leakage’ into private hands. A further difficulty that the regional government faces is intergovernmental relations. The ARMM has been inserted into a decentralized polity in which many basic service delivery functions have been devolved to provinces, cities, municipalities, and barangays. The question arises as to how far the regional government can or wishes to tell its component subnational territories what to do in these fields. It has its own act on local level governance but lacks the capa-

6  Resolving Self-determination Disputes Through Complex Power-sharing Arrangements

bility to enforce it and the incentive to review it. Perhaps these territories have far greater competence in such activities than the ARMM government. Is the regional government an advisor or compliance seeker? If the component territory governments believe that there is too much regional interference, there may be problems, especially if they feel that revenue is being wasted in unproductive regional administration, or worse still revenue is being taken away from them. In such circumstances, the component governments of the ARMM might see the Department of Interior and Local Government (DILG) as a source of support. As well as managing downwards in the territorial hierarchy, the regional government must also manage upwards with national government. This is a neglected aspect of decentralization in many countries. For the ARMM government, this involves dealing with a range of central agencies, including the Office of the President, the DILG, the Supreme Court, and many line agencies. Prime amongst the latter will be the Department of Education, Culture and Sports, which shares various educational functions with the regional government and monitors compliance with national performance standards. For education and other sectors, the leading question is whether regional government has the organizational capacity for maintaining and improving performance. If it does not, and this is a distinct possibility, then there is the challenge of managing relations with national agencies, which should have the capacity but not necessarily the inclination to assist. The challenge of managing upwards and downwards within the territorial hierarchy is immense and carries a high risk. If the regional government is perceived by key stakeholders as unsuccessful then the utility of the ARMM construct will come under severe pressure. Even more ominous is that peace with the MILF is yet to be negotiated. The MILF claims to control a well-armed force of over 12,000 men (Philippine Daily Inquirer 13 February 2003). Groups of the MILF regularly clash with the Philippine military. In May 2003, the government cancelled its peace talks with the MILF and announced that it was considering declaring the MILF a terrorist organization (Philippine Daily Inquirer 14 May 2003). This course of action followed a series of bombings officially blamed on the MILF and several deadly clashes between the MILF and the Philippine military. In all cases, it has been civilians who have comprised the bulk of the casualties. Sporadic government-MNLF encounters are also reported. Abu Sayyaf gunmen still hang on in Basilan and Sulu despite major operations by government forces and their American advisers to destroy the rebels. Disaffected MNLF members are easy to find. Development is still an unfulfilled promise for the majority of Mindanao’s inhabitants. The reconciliation that was supposed to characterize the implementation of the peace agreement has not happened. There have been great efforts by civil society and religious leaders, both Christian and Muslim, to work for reconciliation. There has also been an influx of foreign aid, though not nearly enough. The participation of Malaysia has also helped in seeking ways to reduce armed conflict. But the ‘Mindanao problem’ has not been resolved. Underlying conditions that give rise to conflict still persist and are unlikely to diminish significantly in the short-term. The government, the MNLF, the MILF, local communities, and civil society have

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a long way to go before a genuine peace is brought to Mindanao. Such a peace does not simply mean a cessation of armed hostilities but also entails mutual respect for culture, religion, and locality, the feeling of security in daily lives, the expectation of decent services, an ecologically sound development, human dignity, and the capacity to earn a decent living. When these things are achieved, there will be peace in Mindanao.

Chapter 7 Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina Florian Bieber

I

Introduction

Bosnia and Herzegovina, or in short Bosnia, has been the site of an international experiment in reconstructing a state fractured by a three-and-a-half-year war. This experiment has sought to re-establish a multiethnic system of governance after the complete fragmentation of a state and the unsuccessful attempt of Serbs and Croats to secede from Bosnia. The efforts by the international community to reconstruct a war-ravaged society in order to prevent a recurrence of the conflict have since been replicated in Kosovo, East Timor, and Afghanistan, as well as in a number of cases with a lesser degree of interventionism, such as in Macedonia. Most conflicts of the 1990s that gave rise to this type of comprehensive international intervention were caused by the mobilization of ethnic or national identity and had a self-determination dispute at their heart. Unlike inter-state conflicts, resolving these intra-state conflicts requires, in addition to classical peacekeeping efforts and economic reconstruction, new political systems which would accommodate the divergent demands over the country’s future. This has been particularly so, as long as the international community has generally been loath to recognize claims to self-determination, with the exception of secondary decolonization (East Timor) or the dissolution of federal states on the basis of uti possidetis juris. The end of a war does not necessarily imply an end to its underlying self-determination dispute. Recent post-war peace agreements were thus faced with the challenge of creating a functioning polity that would satisfy the demands of all its constituent nations. In the case of Bosnia, the post-war arrangement encompasses three key components: (a) a long-term international military and civilian presence; (b) a power-sharing arrangement between the different groups; and (c) a high degree of decentralization towards ethnically homogeneous autonomies. This case study seeks to assess the impact and success of the power-sharing arrangement in Bosnia, while also incorporating the other two components of the peace-settlement into the evaluation. It will do so by examining the history of the conflict and the Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 193-241

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background to the Dayton Peace Accords (DPA). It subsequently turns to the responses to the agreement and its record of implementation since 1996. Contrasting the political structures established in the peace plan with the reality in postwar Bosnia shows a very mixed picture. While the self-determination dispute in Bosnia has been largely ‘frozen’ and the disintegration of the country no longer an immediate threat, the state remains weak and internally fragmented. Ethnicity permeates political decision-making and the economic and social developments have offered no distraction from ethnicity as the most significant identifier. II

A Brief History of the War and the International Peace Initiatives

The war in Bosnia-Herzegovina, which came to an end with the Dayton Peace Agreement (DPA) in late 1995, was the third and most destructive armed conflict in the course of the dissolution of the Socialist Federative Republic of Yugoslavia. Fighting first broke out in Slovenia in June–July 1991 (lasting for ten days), followed by a more intense armed conflict in Croatia between July 1991 and January 1992. The war in Bosnia-Herzegovina began in April 1992, although there had been violent clashes earlier that year. The conflict in Bosnia progressively escalated into violence between the first free elections in Bosnia in November 1990 and the outbreak of war in April 1992. The origins of the war in Bosnia lie in the weakening of the communist and federal authority of Yugoslavia from the mid-1980s. In Serbia, this led to the rise of Slobodan Milošević, who transformed the League of Communists of Serbia into a populist nationalist party, while retaining some of its communist facade (Popov 1994: 22-84). The Bosnian League of Communists was considered to be more dogmatic than its equivalent in most of the other republics, contributing to a loss of legitimacy. In addition, a series of financial scandals (especially the so-called Agrokomerc scandal in 1987) weakened the party even further. At the same time, the Serbian intelligence services became active in Bosnia in attempts to either promote a new pro-Serbian leadership of the republic or to strengthen Serbian nationalist forces loyal to the new Serbian republican leadership (Friedman 1996: 192; Andjelić 2003: 51-78). In the election year 1990, several new parties were founded in Bosnia, mostly, but not exclusively, along national lines. The first such party to come into existence was the Party for Democratic Action (SDA, Stranka demokratske akcije), followed by the Serbian Democratic Party (SDS, Srpska demokratska stranka) and the Croat Democratic Community (HDZ, Hrvatska demokratska zajednica). Although these parties campaigned on a national platform, all three were united in their determination to defeat the League of Communists. During the first elections in Bosnia, the three national parties together secured approximately three quarters of the vote and formed a coalition to control parliament. The seven-member presidency of Bosnia was also exclusively controlled  

For a more detailed discussion of governance in post-war Bosnia, see Bieber 2005. Also known as the General Framework Agreement for Peace in Bosnia and Herzegovina.

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by the three national parties (two Serbs from SDS, two Muslims from SDA, two Croats from HDZ, and one for ‘Others’ from SDA) (Arnautović 1996: 103-107). In the subsequent power-sharing agreement between the three parties following the elections, the Muslim member of the presidency, Alija Izetbegović, became the president of the presidency; a Croat was named prime minister, while a Serb was elected as president of parliament. Both the League of Communists-Party for Democratic Change (SK BiH-SDP, Savez Kommunista Bosnia i HerzegovineStranka demokratskih promjena) and the multinational pro-Yugoslav Alliance of Reform Forces (SRSJ BiH, Savez reformskih snaga Jugoslavije) played no significant role and were excluded from office, except at the local level (e.g., Tuzla). Not until November 2000 would the successor party to the SK BiH, the Social Democratic Party (SDP, Socijaldemokratska partija), enjoy any electoral success. The temporary coalition between HDZ, SDA and SDS was pragmatic but not sustainable, as they represented conflicting concepts on the future of the republic and its status within Yugoslavia. The Serbian Democratic Party, with close links to both its sister party in Croatia and the Socialist Party of Serbia (SPS, Socijalistička partija Srbije) led by Slobodan Milošević, originally demanded a decentralization of Bosnia on the basis of the three dominant ‘nations’, without openly proposing the dissolution of Bosnia. At the same time, it vehemently opposed the dissolution of Yugoslavia and insisted on strong links between Serbia and Bosnia, be it within Yugoslavia or a new state structure. In the course of 1991, the claim for territorial autonomy was dropped and substituted by a demand for outright independence for undefined parts of Bosnia, under Serbian control. Throughout 1991, the SDS established ‘autonomous areas’ in territory that as a result of the elections had come under their control and thus effectively ceased to be governed by the central government. The SDS argued that the right to self-determination, as formulated in the preamble of the Yugoslav Constitution of 1974, applied to peoples, not just the republics. In consequence, Muslims and Croats might seek to leave Yugoslavia, but would not be permitted to pursue the independence of Bosnia as a whole, but only of ‘their’ respective territories. While the party insisted that it would separate from Bosnia at the same pace as the Bosnian government severed its ties with Yugoslavia, the project of an autonomous/independent Serb territorial unit within Bosnia was consistently ahead of Bosnian steps towards independence; as such, the Republika Srpska (RS) was proclaimed four months before the Bosnian declaration of independence (Cohen 1993: 141-143). The Croat Democratic Community (HDZ) was divided into two wings with different political agendas and positions on Bosnia. The moderate wing, which dominated the party early on and was mostly represented by Croats from central and northern Bosnia, supported the preservation of Bosnia as a multiethnic country and sought to take it out of Yugoslavia in coalition with the SDA. The more nationalist wing, mostly identified with its representatives from Herze

The League of Communists changed its name shortly before the elections, but did not undergo a fundamental programmatic change.

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govina, also campaigned for an independent Bosnia, but simultaneously sought territorial autonomy for Herzegovina, with the aim of joining this territory with Croatia. This nationalist wing dominated the party from 1991–1992 onwards and openly pursued secession of Western Herzegovina with the establishment of Herceg-Bosna in 1993 (Burg and Shoup 1999: 65-66). The dominant Muslim party, the SDA, sought to preserve Bosnia as a unified state and to obtain independence from Yugoslavia. Independence, however, was not the only policy option pursued: Bosnia and Macedonia together proposed an asymmetric Yugoslav Federation in 1991, in an attempt to strike a compromise between the Slovene, the Croat, and the Serb positions (“Die Plattform des Präsidiumsvorsitzenden...” 1991: 22-24). The party wanted to preserve a centralized republic and opposed any decentralization towards ethnic autonomy. While before the war some SDA representatives had sought a compromise with the Serbian government, during the war some members of the nationalist/religious wing supported the creation of a Muslim state in parts of Bosnia, thus advocating the right to self-determination of parts of the country. However, proponents of such a policy did not dominate the party or government policy, mostly due to the limited territorial space such a state would occupy (Friedman 1996: 212-213). The early stages of the conflict in Bosnia included two separate, yet interlinked self-determination disputes, as outlined above. The first dispute focused on the structure of Yugoslavia, while the latter concerned Bosnia. In the dispute over Yugoslavia, the HDZ and most Bosnian Croats supported independence for Bosnia from Yugoslavia, following the line taken by the HDZ-government in Croatia. While the SDA also favoured independence, its stance was not as firm and it was willing to compromise. Such a compromise on a looser federation was, however, opposed by the Serbian government and its allies in Montenegro (and Vojvodina and Kosovo) and by the SDS. The SDS finally rejected any move by the Bosnian government towards independence. It threatened to follow every step of the Bosnian government to seek independence with the equivalent step within Bosnia for the Serb-controlled territories. The concept of Bosnia as a unified state was only supported by the SDA and the (marginalized) multinational parties. Since its foundation, the SDS had demanded territorial autonomy, but after the elections it went even further and sought outright self-determination of ‘Serb territories’. With the outbreak of war, the HDZ also started to campaign for self-determination for Herceg-Bosna. As neither the HDZ nor the SDS had campaigned for the 1991 elections on a selfdetermination platform, the degree of popular support among their constituency for secession from Bosnia is unclear. While the political polarization in Bosnia and the war in Croatia strengthened support for Croat and Serb secessionist parties and policies, a significant number of Serbs and Croats continued to support a unified Bosnian state, as was evidenced in 1991–1992 by numerous peace rallies, opinion polls, and the departure/marginalization of leading HDZ and SDS politicians (Wieland 2000: 261-263). In October 1991, however, a parliamentary debate sharply revealed the weakness of the Bosnian state institutions. While Croat and Muslim deputies voted

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for the sovereignty of Bosnia, Serb members of parliament boycotted the session (Reuter 1992: 672). In response, the SDS organized a referendum on 9–10 November 1991 among the Serb population in areas under its control, in which a majority voted in favour of remaining within Yugoslavia. On 9 January 1992, the SDS proclaimed the Republika Srpska i Bosna-Hercegovina (which since August 1992 has been called Republika Srpska) (Buha 1999: 8-9). The statelet was included in plans for a reconstructed ‘Yugoslavia’ that were circulated in Serbia at the time. This new Yugoslavia would have been composed of Serbia, Montenegro, and the two Serb para-states in Croatia and Bosnia (Schwarm 1994: 3) The connection between the Bosnian self-determination claims within Yugoslavia and the self-determination disputes within Bosnia were highlighted by a referendum on the independence of Bosnia. The referendum was held 29 February–1 March 1992 at the recommendation of the European Community (EC), which followed the conclusions of the Badinter Arbitration Committee. The SDS immediately launched a boycott of the referendum and most Bosnian Serbs refrained from participating. A majority of 62.68% of voters favoured independence. However, as one community had largely boycotted the referendum, it lacked the cross-communal support necessary for a far-reaching change to the status of the country, such as independence. While it fulfilled the criteria laid out by the Badinter Committee, it lacked the necessary legitimacy within Bosnia (Bougarel 1996: 56; Burg and Shoup 1999: 117). The war began in April 1992, after Bosnia received international recognition as an independent state, when military and paramilitary forces under the control of Republika Srpska (RS), with strong logistical support from the Yugoslav army, began conquering large parts of the country and besieging major cities, including Sarajevo. In a well-documented campaign of ‘ethnic cleansing’, which was marked by territorial conquest, mass expulsion, and the brutal murder of people from differing ethnic backgrounds, Serb forces brought 70% of Bosnian territory under their control within the first few months. (Cigar 1996: 47-61). Throughout the war, RS, which was ruled by the Bosnian Serb army, declared its aim to join with Serbia and other ‘Serb’ states, such as Montenegro and the Serb Republic in Krajina (RSK, Republika Srpska Krajina) to form a Union of Serb States. This aim was not formally carried out, as Serbia and the newly-created Federal Republic of Yugoslavia sought to retain some international support by playing down the strong links between the RS and the FRY. At the same time, the ideological background of the SDS and the SPS differed considerably, which eventually led to a split in 1994–1995. The Serb para-states in Croatia and Bosnia sought to cooper 

The Badinter Committee was an ad hoc body appointed by the EC to evaluate the self-determination claims of some of the republics of Yugoslavia. It was chaired by the president of the French Constitutional Court, Robert Badinter. The SDS strongly adhered to the Četnici tradition of Serbian nationalism, including a staunch anti-communist position. In addition to the creation of ‘Greater Serbia’, it advocated a prominent role for the Serbian Orthodox Church. The SPS, on the other hand, never gave full support to the idea of ‘Greater Serbia’. Support for Serbs outside

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ate, and at several times during the conflict proclaimed a union. This cooperation was always limited, as was revealed when the RS did not assist the Croatian Serbs during the Croatian army offensives of May and August 1995. This action also highlighted the limited support from Serbia, which did not intervene during the Croatian offensive. Both economically and militarily, the Bosnian RS was heavily dependent on Yugoslavia and thus very limited in its political choices, as was evidenced during the peace negotiations leading to the Dayton Peace Agreement. The Croatian intention to take Herceg-Bosna out of Bosnia became obvious during the first months of the war, although both secret and open negotiations to this effect had taken place between Franjo Tudjman and Slobodan Milošević, and between the President of the RS Radovan Karadžić and Mate Boban, the leader of the HDZ in Bosnia, before and during the early phase of the war (Hedl 2000; Burg and Shoup 1999: 198). The conflict between the Bosnian army and the Croat military units intensified in late 1992, leading to an outright war, which lasted for a year from spring 1993 to spring 1994. During this war, the HDZ established Herceg-Bosna in Western Herzegovina and openly sought to incorporate the territory into Croatia. The territory had already been linked closely to Croatia in military, economic, and political terms and remained so even after the end of the Muslim-Croat conflict. Croat and Serb territorial claims taken together amounted to almost the entire Bosnian territory. Serb autonomous regions laid claim to 63% of the territory, while the Croat community claimed 21%. Only 13% were disputed between the two, with little more than 3% claimed by neither the SDS or HDZ (Begić 1997: 68–69). International involvement in the conflict had begun before the actual outbreak of war. However, both the international community and the European Community (EC), which was particularly active during the early stages of the war in the former Yugoslavia, were taken by surprise, which led to a number of well-identified policy failures. Early diplomatic efforts aimed at the preservation of Yugoslavia’s territorial integrity and tried to broker a new constitutional framework for the country after Slovenia and Croatia had left the federation. By the time war broke out in Bosnia in April 1992, the preservation of Yugoslavia was no longer a policy option pursued by the United Nations or the EC. Instead, international efforts started to focus on the preservation of Bosnia. In a statement that marked a fundamental change of mind, the committee set up by the EC and headed by the French judge Robert Badinter came to the conclusion that Yugoslavia was in the process of disintegration and thus any of its constituent republics could seek international recognition, provided they fulfilled certain criteria, such as adequate minority protection or human rights standards (Cohen 1993: 236-237; Pellet 1992). A referendum was a further requirement for recognition that the Badinter committee added, although it was not explicitly stated in the EC’s ‘Decof Serbia declined among the Serbian leadership as a result of sanctions and the economic decline in Serbia during 1993–1994. In addition, the SPS always maintained its communist heritage, which inherently brought it into conflict with the SDS.

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laration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union” and “Declaration on Yugoslavia” from 16 December 1991 (“The Opinions of the Badinter…” 1992). • The first concerted international mediation effort was undertaken by the EC under the Portuguese presidency in February–March 1992. This first peace plan, named after the EC mediator Jose Cutileiro, set the tone for all subsequent international attempts at resolving the conflict: It insisted on the invariability of the Bosnian borders and on finding a solution within Bosnia. At the same time, it considered territorial autonomies within Bosnia to accommodate claims by the three parties. This view was shared by the international community, which in addition to the negotiators from the EC/ EU, included the UN, and later also included the contact group (Russia, the United States, France, Germany, Italy, and Great Britain). Within this framework, the main developments in the peace plans from the Cutileiro plan to the Dayton Peace Accords can be mapped along three parameters: size and contiguity of the ethnic units; • power of the centre; and • shifting borders of the territorial units depending on the balance of power on the ground. All the internationally negotiated plans had at some point appeared close to being signed by the parties to the conflict. It can be assumed, however, that neither the consent of the parties nor their participation in the negotiations were altogether in good faith, especially that of the Bosnian Serbs. Consequently, parties agreed to proposals in the knowledge that other parties would reject them, and that they could thus gain kudos for supporting a peace agreement that would never be implemented. In addition, many peace agreements were deliberately misinterpreted at the local level. Despite the ‘ethnic’ definition of the territorial autonomies applied in the different peace plans, the early proposals at least insisted on some degree of political representation for the non-dominant nation in each territory. At the local level, however, this provision of any agreement was systematically ignored. Furthermore, internationally proposed maps helped at times to justify the conquest of territories as part of a ‘pre-emptive implementation’. This was the case for the Vance-Owen Plan and for some Croat conquests in 1993 at the expense of Muslims. The Cutileiro plan proposed the creation of a varying number of non-contiguous national regions. Although the parties initially signalled their support for the agreement, disputes arose over the size of these cantons. Certain crucial policy areas such as the control of the police and the army were not even addressed in this plan. As no consensus over the distribution of territory could be reached, the agreement collapsed. Less than a month later war broke out (Burg and Shoup 1999: 108-117, Begić 1997: 83-108). The EC negotiator Lord Owen and UN envoy Cyrus Vance drew up the next peace plan during the first months of 1993. The plan strengthened the cantons, by creating fewer and larger cantons vested with greater political powers. The composition of the cantons was based on ethnic-

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ity, but there was a notable difference to the previous plan: ethnic composition was no longer based on census figures but increasingly on lines of control. This meant the de facto acceptance of the results of ethnic cleansing. This implicit international recognition of territorial conquest and ethnic cleansing endorsed by the Vance-Owen plan gave even further impetus to ethnic cleansing. Especially in parts of Herzegovina, Croat armed forces felt encouraged to conquer territory that according to the Vance-Owen plan would have formed part of a Croat canton. The Bosnian Serb ‘parliament’ rejected the amended Vance-Owen plan, after Milošević had forced Radovan Karadžić to sign the agreement. While the HDZ supported the agreement, the SDA and the central government only lent it wavering support, as they felt it offered the Muslims too little (only 26% of the territory would have been under Muslim control, as the canton of Sarajevo would have been under international administration). Further, the plan reduced the powers of the central government to a minimum. Another controversial aspect of the agreement was that it sought to prevent the secession of the cantons, by denying the western Serb canton a link to Eastern Bosnia and by refusing to create a contiguous Serb canton in eastern Bosnia that could have easily joined Serbia. The three predominant Croat cantons, however, were all bordering Croatia. The cantons were unable to establish bilateral ties with Croatia or Serbia, as only Bosnia as a state was vested with such powers. Although the Vance-Owen plan never received full US endorsement, which was partly due to a change in administration during the early stages of plan, the main reason for its eventual failure was that it was the last internationally proposed plan that did not explicitly endorse the results of ethnic cleansing (Burg and Shoup 1999: 189-262, Begić 1997: 109-125). Both the subsequent Owen-Stoltenberg plan, proposed in August 1993, and the Contact Group plan, put forward in July 1994, essentially abandoned the idea of creating small, non-contiguous cantons in favour of three large ethnic territories, with little attempt to ensure some degree of minority representation within. While the territories allocated to the different parties by international mediators during the negotiations changed between 1993 and 1995, the borders principally reflected the territorial control by the three parties, with the Serb party being forced to return some of the territory under its control. Starting with the Contact Group plan, the proposed settlements foresaw a division of Bosnia between the Serb-controlled parts and the Croat-Bosniak Federation, according to the formula of 49 to 51% of the territory of Bosnia. During this phase of the conflict, the second entity of current Bosnia was established under US auspices: the Federation of Bosnia and Herzegovina, which included Croat and Muslim (now Bosniak) territories. The agreement for this Federation ended the Croat-Bosniak war and made the Bosnian Croat and Croa

In this study, ‘Federation’ denotes the Federation of Bosnia-Herzegovina, which constitutes 51% of Bosnia and includes the war-time Croat and Bosniak territories. Although the state of Bosnia-Herzegovina can be described as a federation, this term will not be used to describe the entire Bosnian state to avoid confusion.

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tian leadership formally renounce claims to self-determination of Herceg-Bosna (Burg and Shoup 1999: 292-298). The implementation of the agreement was not achieved even after the end of the war, as many vestiges of the independence of Herceg-Bosna remained intact until 2000. As a result of the Washington agreement, which established the Federation, the Bosnian Serb side came under increased pressure, as all subsequent plans provided for the division of Bosnia into two parts, the Republika Srpska (RS) and the Federation, with both territorial units defining themselves as territories of their respective national group. The establishment of the Federation also helped turn the tide in the conflict, as Bosniak and Croat forces in the summer of 1995 launched a joint offensive that conquered large parts of the Serb Republic. Against this backdrop, the RS agreed to a ceasefire and to beginning of peace talks leading to the Dayton Peace Accord. III The Origins of the Peace Agreement The Dayton Peace Accords (DPA), initialled on 21 November 1995 in Dayton, Ohio and signed in Paris on 14 December 1995, eventually brought the threeand-half-year conflict to an end. The war had left over 200,000 Bosnians dead or missing, more than half the population displaced, either within Bosnia or in third countries, had destroyed most of the country’s infrastructures and left much of Bosnia’s cities and countryside scorched. The peace agreement was based both on the previous efforts by the international community to end the war and on four significant events in Bosnia and Croatia during the summer of 1995: 1. The fall of the two UN Safe Havens, Žepa and Srebrenica, and the subsequent mass murder of most of the male citizens of Srebrenica by the Bosnian Serb army (VRS, Vojska Republike Srpske), with the active support of the Yugoslav Army (VJ, Vojska Jugoslavije), strengthened the resolve of the international community to end the war even against Serb resistance. It also paved the way for NATO bombardments of Serb positions, which signalled a shift in international policy towards active intervention in Bosnia. 2. The conquest of western Slavonia in May 1995 and the Krajina in August 1995 by the Croat army and the collapse of the RSK weakened the Bosnian Serb position and led to the rapid military advance of Croat forces in Bosnia in cooperation with Bosniak forces. The territorial division on the ground in Bosnia thus approached the 51:49 formula established in the peace plans of the previous year. 3. Slobodan Milošević, determined to end the war to end the isolation of Yugoslavia, applied pressure on the Bosnian Serb leadership to accept a peace plan negotiated by him on their behalf. This policy shift of Yugoslavia progressively took place in 1994 and 1995 and was the consequence of the effects of sanctions and the rift between Milošević and the Bosnian Serb leadership over war aims. 4. After three and a half years of war, all parties, especially the Bosnian Serb side, suffered from low morale and the continuation of armed conflict was

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more difficult to sustain, especially in terms of securing enough manpower to maintain the long front lines across Bosnia. This mixture of a change of fortune between the warring parties, the stronger military Western (i.e., US) commitment to ending the war and overall war-weariness enabled the conclusion of a peace agreement, which ended the war and provided for a complex system of post-war governance and reconstruction of Bosnia. Despite the exhaustion of the three parties and the reversal of fortunes in the war, the peace agreement was not based on the defeat of any of the three parties, nor did any of the three communities perceive the agreement as the only alternative to a defeat. As a peace between three ‘undefeated losers’ of the conflict, the agreement solicited little support from any of the three parties during its implementation process, unlike some of the other agreements in former Yugoslavia (e.g., the Erdut Agreement on Eastern Slavonia concluded simultaneously with the Dayton Peace Accords, where Croatian Serbs had clearly lost any leverage to block the agreement’s implementation). Although an agreement between the RS, the Croat territories, and the predominantly Bosniak central government, the accord was negotiated between three countries, Bosnia, Croatia, and Yugoslavia/Serbia. The strategy of negotiating with Croatia on behalf of Bosnian Croats and Yugoslavia/Serbia for the Bosnian Serbs was based on the pragmatic assessment that the main power-holders, Tudjman and Milošević, were more likely to assure the implementation of the agreement than their local proxies. Secondly, local political actors had become unacceptable partners to the international negotiators due to their intransigence and direct implication in war crimes, especially after the indictment of Radovan Karadžić, the president of the RS, and Ratko Mladić, the chief of staff of the Bosnian Serb army, by the International Criminal Tribunal for the Former Yugoslavia in The Hague (Holbrooke 1998: 105-108). Thirdly, the Bosnian Serb leadership had repeatedly withdrawn initial support from peace agreements by submitting the proposed agreement to the parliament of the RS, which rejected it, or by initiating a ‘referendum’ in the areas under its control. Such a delay and obstruction was this time excluded by confining representation of the Bosnian Serbs in the negotiations to Slobodan Milošević as president of Serbia. Subsequently, the parliaments of Croatia, Bosnia, and Yugoslavia approved the agreement within the three weeks between the initialling and signing of the agreement. The absence of democratic scrutiny of the agreement reflected both the degree of authoritarianism in the three countries and Western scepticism towards an abuse of ‘democratic’ procedure for the benefit of an uncompromising political course. This scepticism was based on the usage the Bosnian Serb leadership had made of the parliament of the RS to veto earlier peace plans and thus circumvent international pressure (Schneider 1996: 1-2). The reliance of the peace agreement and its implementation on the authoritarian leaders of Croatia and Serbia/Yugoslavia limited the agreement’s initial implementation, as both neighbouring gov-

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

ernments sought to continue their intervention in Bosnia’s affairs and supported nationalist political elites in the country. IV The Bosnian Power-sharing Arrangement The DPA has produced a highly complex power-sharing arrangement, both in terms of the role of the international community and the different layers of governance and their competence. It is important to note that the DPA governs a country that lacks some key attributes of sovereignty. As the peace accords both recognize existing political institutions and institute additional international supervision, it has been difficult to adequately characterize the degree of sovereignty of the country. Security aspects are largely under the control of the international military forces in the country (SFOR or Stabilisation Force, later IFOR or Implementation Force), while the civilian administration is supervised and partly conducted by a host of international organizations. Additionally, a number of domestic institutions (i.e., the Central Bank, Constitutional Court) have foreign members, making them only partially domestic institutions (Nowak 1999: 287). As a result, it is important to bear in mind that, when considering power-sharing in Bosnia, a considerable degree of power is vested with international institutions and individuals and thus cannot be ‘shared’ among domestic political actors. The system of government set up by the Bosnian peace arrangement has many attributes of the system of power-sharing described by Arend Lijphart in his theory of consociationalism, including the participation of all major groups in government, veto rights for the communities, a high degree of segmental autonomy for the nations and proportional representation in the state administration (Bieber 1999b; Lijphart 1984: 23-32). At the same time, the Bosnian consociational arrangement rests on weak foundations, given the absence of most of the criteria that are generally considered conducive to such a system. Of the structural and actor-oriented conditions identified by Ulrich Schneckener, Bosnia only fulfills three, considerably less than either Northern Ireland, South Tyrol, or Belgium, all classic examples of consociational arrangements (Schneckener 2000: 10-18). Unlike conventional approaches to power-sharing, the arrangement in Bosnia emphasizes autonomy over power-sharing at the centre. As will be described, very little power has been vested in the central institutions and the most contentious powers (defence, education) have been decentralized to such an extent that decisions are essentially taken without cross-communal consultation. Some elements of power-sharing can, however, be found at the level of the entities, and even with the cantons and communes in the Federation. The Bosnian system of governance differs most substantially from classical approaches to power-sharing in its internal logic. In most other power-sharing cases, the autonomy granted to communities in the form of decentralization and/or cultural autonomy is a function of the power-sharing arrangement at the centre. In Bosnia, the opposite has been the case. Decentralization, resulting from the war, was a given, whereas some degree of central coordination and cooperation had to be instituted to maintain at least the resemblance of a country rather then two or three separate statelets. These

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origins of the system of government have dictated a power-sharing at the centre that has been marked by the absence of power – as it is vested with the entities or cantons – and an absence of ‘sharing’ – as the arrangement in Bosnia was less the result of a domestic compromise, but rather was imposed by both international actors and the kin-states of the two secessionist communities. Whereas some scholars of power-sharing have generally identified decentralization and ethnic federalism as one promising aspect of power-sharing (e.g., Sisk 1996: 49-53), the Bosnian experiences suggest that excessive decentralization on the basis of ethnicity reduces the willingness of political actors to engage in power-sharing and increases the fragmentation of governance. In addition to these factors, which reduce the strength of power-sharing mechanisms, some of the inherent assumptions of power-sharing in Bosnia are problematic. By definition, consociationalism rests on the concept of elite cooperation, by relying on the willingness of political elites to work together in administering the country. The elite-driven component of Lijphart’s theory is problematized in Bosnia, where political elites, especially of the three nationalist parties, have been responsible for the war (Bose 2002: 246-252): In fact, it could be argued that the brief pre-war interlude of ‘democracy’ in Bosnia from 1990 to 1992 constituted a power-sharing arrangement that failed (Bieber 1999a: 203-211). The reliance on cooperative elites led to a conceptual shift in the international community’s policy towards Bosnia. While the formal system of government can be best described as a variation of the Lijphartian model of consociational power-sharing, the approach of the international community in recent years is more akin to the more integrative approach of Donald Horowitz, however without altering the institutional set-up (Horowitz 1985). The two key aspects of this approach have been the changes and developments in the elections laws and regulations, and the active support given to moderate politicians. While a number of different electoral systems were used for the elections in post-war Bosnia, the tendency has been to promote the development of cross-ethnic votes so as to promote candidates who adopt a more moderate political stance (Bose 2002: 215-41). While the outcome of the elections has not been able to demonstrate the immediate impact of the different electoral systems used on the overall result, it has been argued that the impact of electoral systems on the positions of elites is incremental (Reilly 2001: 167-93). The informal support for moderate politicians through the international actors has largely failed, and in a number of cases back-fired. The measures which resemble – albeit through international intervention – aspects of integrative power-sharing had only limited impact in light of the unaltered   

In addition to elitism, they include bureaucratization, segregation, and blocked decision-making (Bieber 1999b: 88-90). For a list of Horowitz’s key recommendations for moderation, see Horowitz 1985: 646-652. Support included post-election coalition-building through international agencies, implicit endorsement of candidates by international agencies, public awareness campaigns advocating ‘vote for change’, and political pressure against nationalist parties.

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

institutional arrangement, which grants considerable power to nationalist elites and provides little incentive for cooperation. Returning to the institutional aspects of the Bosnian power-sharing arrangement, two mechanisms of governance can be identified: 1. The central institutions of Bosnia, as devised in the Constitution of Bosnia-Herzegovina (Annex 4 of the DPA), are established as a consociational democracy; with the inclusive governance of all major national communities through broad representative governments and a system of veto powers. 2. The country is decentralized to two entities, which primarily define themselves as territorial autonomies of the respective national groups. This ethnic federalism grants high autonomy to the three major national groups in the conduct of their affairs. While these two levels encapsulate the mechanisms of multinational governance used in Bosnia, they fail to reflect the complexity of the Bosnian institutional system. In the following, we shall discuss the five relevant levels of government in Bosnia: 1. International Administration; 2. Central Government; 3. Entities; 4. Cantons (only in the Federation); 5. Communes. In analyzing the different levels, it is important to highlight the role of the DPA, as well as other laws and regulations governing these. Furthermore, each level should be evaluated as to whether it is primarily a tool of power-sharing or whether it serves largely as a safeguard for the autonomy of the national groups. Determining the function of the different levels in regard to autonomy or powersharing will allow us to evaluate its success and failures. The power-sharing structure in Bosnia is the result of a compromise between representatives of two of the three nations – Serbs and Croats – which sought to secede from Bosnia and representatives of the largest community – Bosnia’s Bosniaks – that sought to preserve the state. Power-sharing is thus not based on the willingness of the national groups, or rather their political representatives, to devolve power in the interest of subsidiarity or increasing the segmental autonomy of the national communities, but constitutes the lowest common denominator on which the three communities agreed to re-establish Bosnia after the end of the war. While Dayton reaffirmed the legal continuity of the ‘Republic of BosniaHerzegovina’ as it was recognized in April 1992, in reality the Bosnian state had ceased to exist during the war years 1992–1995. The constitutional arrangement of the DPA thus established entirely new political institutions and provided little institutional continuity to the previous central government. The war-time Bosnian government and institutions legally transformed themselves into the post-war Dayton state institutions. De facto, however, the Bosnian government institutions and personnel were largely integrated into the Federation of Bosnia-Herzegovina

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formed in 1994, as the Bosnian government’s reach was limited to the Bosniak majority areas at the time they were incorporated into the Federation.10 A

The Joint Institutions

The central institutions of Bosnia are vested with extraordinarily few powers, while most competencies rest with the two entities11 or their sub-structures. Article III of the Bosnian constitution specifically lists ten areas of competence: • Foreign policy; • Foreign trade policy; • Customs policy; • Monetary policy; • Finances of the institutions and for the international obligations of Bosnia; • Immigration, refugee, and asylum policy and regulation; • International and inter-entity criminal law enforcement, including relations with Interpol; • Establishment and operation of common and international communications facilities; • Regulation of inter-entity transportation; and • Air traffic control. These fields can be described as competencies in the international relations of the country and basic control over communication and borders. In addition to these powers, the highest human rights protection mechanisms are located at the level of the joint institutions with the Human Rights Chamber. Additional competencies of the joint state can be recognized, if one includes Annexes 5 through 8 of the DPA (dealing with Arbitration, Human Rights, Refugees and Displaced People, and National Monument Preservation, respectively). Furthermore, the entities are free to delegate additional competencies to the common institutions, while the central authorities can establish additional institutions as follows: Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities; are provided for in Annexes 5 through 8 to the General Framework Agreement [DPA]; or are necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities. (Constitution Art III (5)(a)) 10

11

As the Federation came into existence more than a year prior to the joint state established at Dayton and as the Federation agreement was concluded between the Croat leadership of ‘Herceg-Bosna’ and the Bosnian government, the Federation agreement constituted a de facto recognition of the fact that the Bosnian government no longer represented all of Bosnia, but rather the Bosniak-controlled parts of the country. The District of Brčko exists in addition to the two entities and is a case sui generis.

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

While this broader interpretation has some support among ‘Bosnia’s’ legal scholars, the Bosnian political elites, especially Croats and Serbs, have generally opted for the minimalist interpretation of the common institution’s competencies (Ibrahimagić 1999: 27-28). The possibility to extend the competencies of the joint institutions has been used increasingly frequently, however, by the international community, starting with the establishment of the State Border Service in 2000, followed by numerous other new state institutions and ministries. Unlike other federal states, the central state institutions in Bosnia originally had no control over the two entity-based armies, but, by 2005, the two armies had merged and were placed under control of a state-level ministry of defence whereas the entity ministries were dissolved. Although the units of the army continue to follow ethnic lines, the establishment of a Bosnian army constituted a major step towards the development of a fully fledged state government.12 The powers of the central authorities cannot only be enhanced by the entities or a re-interpretation of the mandate of the institutions, but also through parliamentary procedure. Article X of the Constitution allows for constitutional changes with a two-thirds majority in the House of Representatives and a simple majority in the House of Peoples. It is important to note that during most of the post-Dayton period the powers of the joint state have been limited, but that the state has also lacked enforcement mechanisms towards the entities, for instance, as Manfred Nowak observed in regard to human rights protection: “[T]he State of BiH and its so-called common institutions … lack the power to enforce international obligations upon the two entities and their substructures” (Nowak 1999: 287). The weakness of the central institutions extends to their financing, as the budget is (nearly) exclusively financed by the entities. Reforms in 2004/2005 aimed at introducing a Value Added Tax have since provided the state institutions with an independent source of income. Despite these inherent weaknesses of the central state institutions, some agencies, especially those established originally as quasi-international institutions, such as the Independent Media Commission, later the Communications Regulatory Agency, have performed relatively well and since 2000 considerably added to the weight of the state. As previously mentioned, the joint institutions of Bosnia have been established by the DPA, despite some similarities to pre-war institutions. The main institutions at the state-level are: • The Presidency; • The Council of Ministers; • The Parliamentary Assembly, consisting of the House of Peoples and the House of Representatives; • The Constitutional Court; • The Human Rights Chamber; and • The Central Bank of Bosnia 12

As the case study was being completed, negotiations over establishing a joint command of the armies under state-level control were ongoing.

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In addition to these institutions, a number of smaller institutions and agencies have emerged, reflecting a general trend towards strengthening the weak statelevel. 1 Presidency Bosnia could be described as a semi-presidential system, whereby there is not one president, but three. The institution of the presidency is not common in political systems around the world, especially among other multinational states. It could be argued that the presidential system is generally not conducive to governance in divided societies. Conventional presidential or semi-presidential systems reduce the effectiveness of grand coalitions, one of the characteristics of powersharing arrangements, as considerable executive power is concentrated in one hand (Ljiphart 1977: 34). While this challenge is addressed somewhat through the three-member presidency, it reduces the ability of a president to act as an arbiter in conflict. This ability – as had been the case under Tito in Yugoslavia – is limited in Bosnia due to the high national polarization and the limited number of political actors who would be acceptable to all communities. The main problem with the presidential system in diverse societies is the limitation on coalition-building, as the members of the presidency are directly elected. The system of a multi-member presidency is a distinct Yugoslav heritage. Yugoslavia, according to its 1974 Constitution, had an eight-member presidency, representing all six republics and the two autonomous provinces equally, with the chairmanship rotating on an annual basis. Most republics, including Bosnia, had a multi-member presidency. Between 1990 and 1996, the presidency had seven members: two from each of the three nations and one for ‘others’, i.e., minorities and ‘Yugoslavs’. The Dayton presidency includes only three members, one Bosniak, one Serb, and one Croat, and additionally incorporates an element of territoriality by requiring that the Serb member be elected in the RS, while the Bosniak and Croat members are elected in the Federation. As a consequence, the presidency contains one representative from each nation, and two from one and one from the other entity. This twin-definition of membership means that other minorities, non-ethnically defined citizens (mentioned in the preamble of the Constitution), as well as members of the respective non-dominant national community (Serbs in the Federation, Bosniaks and Croats in the RS) are precluded from being elected to the presidency. Most past members of the presidency acted on behalf of ‘their’ ethnic community in ‘their’ entity, thus de facto depriving the above mentioned groups not only of running for the presidency, but also of being represented by it.13 It also reveals a key feature of the Bosnian system of power-sharing: all national representation and autonomy is territorial. Even if a particular position or prerog13

During the discussions over a permanent election law in the summer of 2001, some of the governing non-nationalists advocated abolishing this dual constriction on presidency membership. As such a change would have required a constitutional change, which could not have secured a majority in the parliamentary assembly, the proposal was abandoned.

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ative is defined in national terms, it is supplemented with a territorial dimension. As a consequence, non-territorial or cultural autonomy is not part of the current Bosnian system of power-sharing. This is surprising, considering the traditions of non-territorial autonomy, such as the Millet system under the Ottoman Empire, which granted autonomy to the religious communities of the Empire, as well as similar arrangements under Austro-Hungarian rule (Hanf 1991).14 The presidency is chaired in annual rotation by one of the three members. The chairmanship of the presidency does not, however, carry any additional powers. In terms of competences, the presidency is primarily charged with conducting the foreign policy of the country, one of the key powers vested in the joint institutions. Nevertheless, the presidency has been generally a weak institution, as it has lacked cohesion betweens its members. The fact that both entities are entitled to special relations with neighbouring states further undermines the foreign policy leverage of the joint institutions towards Croatia and Yugoslavia. In addition, presidency members have represented their country differently, according to their national background.15 As a result, the foreign policy of Bosnia has been weak and incoherent. In addition to the inability of the presidency to shape Bosnian foreign policy, the institution has been weak in acting as an arbiter in domestic politics, especially between the entities. Between 2000 and 2002, Bosnia experienced some co-habitation, with presidency members lacking parliamentary support or the backing of the respective entity. 2 Parliamentary Assembly At the state-level, Bosnia is a two-chamber parliamentary system, reflecting (con)federal arrangements and the need to grant representation to both the three nations and the two entities. The House of Peoples (fifteen members) gives equal representation to all three national groups but stipulates that the members are elected from the entities where they constitute the dominant group (Serbs from RS, Bosniaks and Croats from the Federation). The members of this chamber of parliament are not directly elected, but rather are chosen by the respective entity parliaments. The House of Representatives (forty-two members) is directly elected in the two entities, with two thirds of the seats reserved for the Federation and one third for the RS (Constitution Art IV). While this could allow for representation of the non14

15

The Ottoman Empire recognized non-Islamic communities and granted them religious autonomy that included education. Although not based on equality between Muslims and other groups, it created a non-territorial autonomy that was emulated by Austria-Hungary. For example, in 2001 the Chair of the Presidency and its Serb members, Živko Radišić, sought to withdraw the case Bosnia brought against Yugoslavia before the International Court of Justice. This case was launched by Bosnia in 1993 against Yugoslavia, accusing it of genocide and aggression against Bosnia. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), ICJ, 22 March 1993

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dominant communities, they have been largely underrepresented. Of the twentyeight deputies elected from the Federation in 2000, approximately twenty were Bosniak candidates, some six Croats and only one or two Serbs. In the RS, more than ten of the fourteen deputies are Serbs.16 The representation in the House of Representatives has thus similarly excluded non-dominant groups from both entities, but has given a more representative reflection of the three nations’ numerical strength than the House of Peoples, where all three are represented equally. In the House of Representatives, about half of the deputies are Bosniaks. An elaborate system of quorums and vetoes prevents the assembly from taking any decision against the will of any of the three national communities represented in parliament. For any law or decision to be passed, at least a third from each entity has to support the law. If this is not the case, the chair of the chamber and his/her deputies (from all three national communities) are charged with securing such a majority. In addition, any of the three community caucuses can (by its majority) object to a decision or law, if it is “destructive of a vital interest” (Constitution Art IV(11e)) of the respective community. Only a majority of all nations’ delegates in the House of Peoples can override such an objection, which makes this veto power de facto absolute. Other national delegates in the House of Peoples can, however, by majority vote object to the invocation of the vital-interest clause, which leads to the establishment of a joint commission of all three community’s representatives to find a compromise. In case no compromise is found, the Constitutional Court is charged with reviewing the process. As the Constitutional Court currently contains three international judges, their participation can prevent an impasse, which would be likely to arise as each nation is represented by two judges and past court decisions suggest national voting-patterns. As a consequence, both entities and peoples have a veto right to block any decision they perceive to be against their interest. Despite the establishment of an ad hoc commission to forge compromises, there are few institutional mechanisms to overcome possible blockage of parliament. In particular, there is no definition of what constitutes a ‘vital interest’ of the national community, allowing it to be used in practically all areas of parliamentary work. A general veto right, as in Bosnia, has in fact contributed to the permeation of ‘ethnic interest’ in all fields of politics, and not to the depolitization of the decision-making process, as had been proposed by Nordlinger and other scholars of power-sharing arrangements (e.g., Sisk 1996: 47). Lijphart’s considerations as to why the veto power is unlikely to result in blockage of the decision-making process have proven not to work in Bosnia. His observation that “the very fact that the veto is available as a potential weapon gives a feeling of security which makes the actual use of it improbable” (Lijphart 1977: 37) has in particular not held true for Bosnian politics. In Bosnia, where the strength or weakness of the state-institutions is contested, the veto right has been an instrument for political representatives with an interest in keeping the centre weaker than foreseen in the constitution to limit the function16

As the official election results do not list the national background of the elected candidates, the numbers are based on party-affiliation and name, where possible.

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ing of state-institutions, above all parliament. This would suggest for power-sharing theory that veto rights can only be effective in cases where the power of the institutions that they govern are not fundamentally contested by political actors partaking in the process. In addition, the ability and willingness of the international civilian agencies overseeing the peace-process in Bosnia to take decisions has weakened the negative consequence of the (mis)use of veto powers. The Parliamentary Assembly can be active in the areas of competence accorded to the joint institutions, especially in deciding on the financing of the institutions, passing the budget, ratifying international treaties, and a more general competence to enact “legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly” (Constitution Art IV(4)). In addition, the parliament is able to change the constitution – with the exception of the Human Rights catalogue – with a two-thirds majority in the House of Representatives (Constitution Art X). This procedure in fact makes the Constitution the only part of the Dayton Peace Accords, that can be altered exclusively by domestic political actors. The system of vetoes does, however, make constitutional change extremely difficult, and has so far prevented any substantive discussion on such changes (Pajić 2001: 40-41). 3 Council of Ministers The Council of Ministers – the government of Bosnia – is constitutionally weak, as evidenced by the fact that its powers and competencies are described in the article on the presidency and not separately, as, for example, is the Parliamentary Assembly. The chair of the Council of Ministers, the de facto prime minister, is nominated by the presidency, but must be approved by the House of Representatives. The constitution prescribes only two ministries of the joint institutions, a foreign ministry and a ministry of foreign trade. Between 1996 and 2000 only these two ministries and the Ministry of Civilian Affairs existed. Additional ministries can be created with the approval of the House of Representatives. Only in 2000 was the number of ministries extended. The territorial distribution of the ministers is prescribed in the Constitution, stipulating that no more than twothirds can be from the Federation (Constitution Art V(4)). In practice, until 2002, every minister had two deputy ministers from the other two nations, and since then a single deputy from a different nation. The positions of both ministers and their deputies are distributed on a parity basis, which is a legal requirement. In the past, the chairmanship of the Council of Ministers rotated between the different ministers. This system has been replaced by a permanent chair of the Council of Ministers, thus establishing a more conventional cabinet system. Despite these steps to strengthen the government and overcome the excessive weaknesses of the immediate post-war government, it remains constrained by the elaborate power-sharing mechanisms and the strength of the entities (Bieber 2005: 52-54). 4 Constitutional Court The Constitutional Court is an extremely powerful institution in Bosnia. Besides being called upon to resolve decisions blocked by veto in the parliamentary as-

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sembly, it has jurisdiction over some of the most contested areas of governance in Bosnia, including any “dispute that arises … between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including special parallel relationship with a neighboring state” and the consistency of “any provision of an Entity’s constitution or law” with the Bosnian (Constitution Art VI(3a)). As such, the court has the arbitrational role common to Constitutional Courts in Federal systems (Pobrić 2000: 476-481). Its importance is further enhanced by the absence of other domestic mechanisms for arbitration between the three communities. The court itself is composed of nine members, two from the RS and four from the Federation. In practice, the four members from the Federation have been two Bosniaks and two Croats. Furthermore, three members were named by the President of the European Court of Human Rights for a transitional five-year period. In July 2002, three new international judges were appointed to the court. These international members have proven critical in key decisions of the court. Especially the decision that stipulated that the entities’ constitutions contravened the preamble of the Bosnian Constitution – according to which all three peoples and ‘others’ are constituent people on the whole territory of the country – was only passed due to the votes in favour by the international judges (Constitutional Court of Bosnia-Herzegovina 2000). Even when excluding the international component, the court is the only institution where decisions are taken by a simple majority of the judges, thus lacking any veto rights. At the level of the common institutions, power-sharing mechanisms are provided in all areas. The Presidency and the House of Peoples assure the representation of both the national groups and the entities. In the House of Representatives and in the Council of Ministers only the territorial representation is prescribed in the constitution. While both entities are primarily constituted by one or two dominant nations, here the three national groups are guaranteed representation. Even in the few fields of competence accorded to the common institutions, veto rights and guaranteed representation assure that no decision can be taken without the consent of a majority of the representatives of each of the three national communities, with the Constitutional Court being the only exception. B

Entities

A key compromise contained in the DPA is the recognition of two ethnically-defined units, which are vested with considerable powers: the RS and the Federation of Bosnia and Herzegovina. The entities differ greatly in their governance and in the degree of power-sharing they provide. The Federation Constitution between 1994 and 2002 provided for a power-sharing arrangement between Bosniaks and Croats, while the RS defined itself as the nation-‘state’ of Serbs. The Federation is highly decentralized, with most powers at the level of the ten cantons, whereas the RS is centralized, with little competencies at the local level. In terms of power-sharing mechanisms, the RS lacked any assured representation or participation for non-Serbs until the decreed constitutional changes

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in early 2002 that will be discussed below. The Federation, on the other hand, has an elaborate system of power-sharing, mirroring the joint institutions. The parallel between Federation and state institutions is in fact hardly surprising, considering that they are both the outcome of US-brokered negotiations with considerable input of constitutional drafts from the US negotiators. In a range of fields, the Dayton Constitution copies the Federation Constitution, including the main institutions (presidency, two-chamber parliament, and government) and the high degree of decentralization. Unsurprisingly, the Federation has suffered from many of the same weaknesses of the central authorities.17 While the entities were originally mono- or bi-national autonomies, which exercised most power and minimized the degree of interethnic cooperation in Bosnia, a change to the entities’ constitutions, in April 2002 changed the nature of the entities (Bieber 2005: 121-132). In 1998, Alija Izetbegović, at the time a member of the state presidency, brought a case to the Constitutional Court regarding the constitutionality of the entity constitutions. The Constitutional Court determined in several partial decisions in 2000 that, in fact, the entity constitutions were partly unconstitutional as they did not grant the three nations equal rights on the whole territory of the country as stipulated in the Bosnian Constitution. The Court required constitutional amendments from both entities, which would correct both the symbolic aspects of the constitutions and the institutional arrangements, which excluded both Bosniaks and Croats in the RS or Serbs in the Federation (Constitutional Court of Bosnia-Herzegovina 2000). In the absence of any activity by the two entities, the High Representative Wolfgang Petritsch first appointed two constitutional commissions, one for each entity, to develop constitutional amendments and temporarily address the Constitutional Court judgement (Perry 2002: 2-3). Despite intensive negotiations and near-compromises over the amendments to the entity constitutions, the High Representative eventually imposed amendments to both entities’ constitutions in April 2002. According to these amendments, Bosniaks and Croats have to be proportionally represented (according to the 1991 census) in the RS at all levels of government, as do Serbs in the Federation. In addition, ‘others’ (e.g., Roma or Jews) are also no longer to be excluded from political representation in the entities (OHR 2002a; OHR 2002b). For example, in addition to the president of the RS, the entity will have two vice-presidents, elected from the other two constituent peoples. Whereas before April 2002 no ethnic requirements were linked to the position of the president and vice-president of the RS – considering the overwhelming Serb majority of the entity the ethnicity seemed a forgone conclusion – the new constitution requires the election of two vice-presidents of different nations than the president (OHR 2002c). While the adding of Serb office-holders in the Federation further likens the entity to the state-institutions, the constitutional changes fundamentally changed the nature of RS, which had previously defined itself in mono-ethnic terms as the 17

A highly instructive study of this is the case of Mostar, the focal point of the Federation, as it is the only town divided between Croats and Bosniaks (Bose 2000: 95-148).

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nation ‘state’ of Serbs. It is, however, noteworthy that the constitutional changes in fact enhanced the ethnic dimension of the Constitution of the RS, which beforehand – based on the assumption of Serb dominance – had less explicit references to the national background of office holders. Although the constitutional changes do not provide Serbs in the Federation or Bosniaks and Croats in the RS with some kind of autonomy within the entity, three key aspects of power-sharing – veto rights, proportional representation, and participation in government – now form part of the institutional structure of the entities as well. Whereas the changes are based on a court decision, and formally do not constitute a change of the DPA, the amendments change the nature of post-Dayton governance from mono- and bi-national autonomy with weak power-sharing towards an extension of some elements of power-sharing to the autonomous regions. The entities remain the main aspect of ethnic self-government in Bosnia, but have lost their ethnic exclusiveness. C

The Role of the International Community

The peace agreement for Bosnia has been paradigmatic in terms of the powers it vests in international institutions and personnel with the consent of the local actors. Moreover, the role of the international community, the High Representative in particular, has been considerably broadened during the implementation process. When examining the degree and structure of international involvement in post-conflict Bosnia, some important distinctions need to be made. Firstly, different organizations with unequal powers were charged with overseeing the military and the civilian aspects of the implementation of the peace agreement. The multinational peacekeeping force – IFOR (Implementation Force), later SFOR (Stabilization Force) and now Eufor (European Union Force) – under first NATO and later EU leadership, is the international force charged with the implementation of the military aspects of the agreement (DPA 1995: Annex 1). The International Police Task Force (IPTF), as part of the United Nations presence in Bosnia, was additionally established to oversee the local police forces (DPA 1995: Annex 11), to be replaced by the EU Police Mission (EUPM) in 2003. The institution established to supervise the civilian implementation of the DPA is the Office of the High Representative (OHR), supported in certain aspects by the OSCE, the EU, and the Council of Europe, as well as a host of other international organizations. In addition to these institutions, be they already established international organizations or set up specifically for Bosnia, a number of foreign officials, nominated by international organizations, form an integral part of the Bosnian institutional structure at the joint level (Constitutional Court, Central Bank, Human Rights Chamber, etc.), providing for an additional layer of international involvement in post-Dayton Bosnia. 1 International Military Presence A robust international military presence under the leadership of NATO has been a key factor in ending the war in Bosnia. IFOR, consisting of 60,000 troops from seventeen NATO and fourteen non-NATO countries, was originally tasked with

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

overseeing the disengagement of the military forces in Bosnia, the establishment of a ceasefire along the Inter-Entity Boundary Line (IEBL) and the withdrawal of foreign forces (both from neighbouring states and other third countries) from Bosnia (DPA 1995: Annex 1a). After these tasks were implemented relatively swiftly and, with some exceptions, comprehensively (International Crisis Group 1999c: 3-7), the task of the international military presence turned towards ‘stabilization’, i.e., the prevention of new conflicts through their presence and the supervision of the local military forces, as reflected in the change of names from IFOR to SFOR in December 1996. The military forces were, however, reluctant to actively support civilian aspects of the DPA implementation. While SFOR began arresting some indicted war criminals after 1997 and protected civilian officials when carrying out their duties, i.e., during the raid on the Hercegovačka Banka in April 2001 or on Bosnian Serb television transmitters in August 1997, military support has been partial and only provided hesitatingly, with frequent citing of the limitation of the mandate to military matters only. In 1999, US army personnel within SFOR were for the first time permitted to assist the efforts of the OHR in supporting refugee return. Despite these steps to augment the mandate of SFOR, the troops were not able to prevent the riots in Trebinje and Banja Luka in May 2001, nor could they provide adequate support during the first attempt to take over the Hercegovačka Banka in late March 2001. These incidents, as well as the continued presence of indicted war criminals in Bosnia, have drawn considerable criticism of the international military presence in Bosnia (International Crisis Group 2000). With a shift in the role of SFOR from traditional peacekeeping to more specific tasks, such as the prevention of riots or attacks against returnees, the total strength of the force was reduced to approximately 20,000 personnel by 2001, while a specialized unit for preventing civil disorder and rioting was created in 1999. In December 2004, the Eufor Mission Althea replaced the NATOled peacekeepers, but maintained the 7,000 strong presence in the country. This transfer has been part of the progressive ‘Europeanization’ of the international presence in light of the perspective of European Integration for Bosnia. The criticism of the international military presence in Bosnia notwithstanding, the implementation of the military aspects of the DPA have been widely identified as being most successful. The success can be attributed to a number of factors: first, the mandate and powers of SFOR/IFOR were clearly outlined and detailed, unlike the role of civilian agencies. Second, the mandate was clearly limited and in many areas did not affect the monopoly of nationalist parties over territory under their control. Third, the military aspect of peace implementation focused on securing the status quo, rather than changing the balance of power on the ground, unlike civilian aspects of the agreement.18 Fourth, the military aims of the DPA have been less ambitious than other aspects, such as the refugee 18

In areas where a change of the status quo took place, they were far less successful, as evidenced by the handing over of Serb-held suburbs of Sarajevo to Federation control in early 1996, leading to the mass departure of Serbs living in the area and large-scale destruction of homes. See Sell 2002: 179-202.

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return. These more achievable goals allowed for a swift and relatively successful implementation. Finally, it needs to be noted that the financial resources at the disposal of the international military presence by far outweighed the means of the civilian agencies in Bosnia. 2 Role of International Civilian Agencies The primary civilian international agency in Bosnia is the Office of the High Representative (OHR), established in the DPA as “the final authority in theatre regarding interpretation of this agreement on the civilian implementation of the peace settlement” (DPA 1995: Annex 10, Art V). The original powers of the High Representative, an office held by Carl Bildt (1996–1997), Carlos Westendorp (1997–1999), Wolfgang Petritsch (1999–2002), and currently Paddy Ashdown (2002–present) were limited to “facilitate,” “co-ordinate,” and “report” (Annex 10, Art II), resulting in the parties to the conflict mostly ignoring the work of the High Representative (Petritsch 2000: 300). The powers were augmented in the meeting of the Peace Implementation Council (PIC) in Bonn in December 1997. The PIC is tasked with supervising the work of the High Representative and brings together 55 countries and international organizations involved in the peace process. The session of the council granted the High Representative the power to dismiss officials (both civil servants and elected officials) for obstructing the DPA implementation and to decree legally binding ‘decisions’ in all areas where the parliamentary assembly or the entity parliaments are unable to pass laws. The High Representative has made extensive use of this competence. Since the broadening of the OHR’s mandate, over 180 officials have been dismissed and the High Representative took more than 100 decisions. The number of decisions has increased markedly since the introduction of the extended powers of the High Representative in 1997. In 1998, for example, the High Representative took only 28 decisions, whereas in 2002 the number had increased to 153. Most dismissals affected local administrations, but numerous high-ranking officials were dismissed, including the president of the RS, Nikola Poplašen, in March 1999; the Croat member of the Bosnian presidency, Ante Jelavić, in March 2001; and the Croat member of the presidency, Dragan Čović, in March 2005. The decisions taken by the OHR range from areas less pertinent to interethnic relations, such as pension payment plans, to key areas of re-establishing interethnic cooperation and Bosnian statehood, such as the decision on Bosnia-wide license plates,19 or the flag and hymn of Bosnia. This considerable power vested in an international organization – without clear democratic scrutiny – was conceived as a ‘corrective’ for both the unwillingness of the political elites’ in power after the war to engage in the implementation of the DPA and for their attempt to maintain the divide between the nations in Bosnia in order to preserve their own monopolistic hold on their respective constituencies. This policy switch from monitoring to a more assertive role followed 19

The introduction of neutral license plates in 1998, which do not reveal the origin of the car, has been widely identified as a factor in increased cross-entity traffic.

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

the demands of international think tanks, such as the International Crisis Group, as well as a number of Bosnian intellectuals, who demanded the establishment of an outright protectorate for Bosnia immediately following the end of the war (Sokolović 2001: 93-106). The lack of democratic control and the proliferation of international intervention in Bosnian governance did, however, lead to criticism (Chandler 2001; 1999). In addition, the willingness of the High Representative to make decisions in areas were parliament was not able to agree did in fact increase the unwillingness of some political leaders to also make (unpopular) decisions in areas not pertaining to interethnic relations (Cox 2001: 12-15). The reduction of joint decision-making as a result of the HR interventions was acknowledged as a problem even by Wolfgang Petritsch: “In the long run the usage of the farreaching powers lead to a type of dependency syndrome. Local parties began to opportunistically rely too much on the political intervention of the High Representative, especially when it came to unpopular measures. They can behave, despite being in government, as if they were in opposition and defend their ethnonationalist goals without need to compromise.” (Petritsch 2000: 301). In addition to the impact of the OHR’s (and international agencies) executive and legislative powers on power-sharing arrangements, it can be argued that the interventionist approach of the international implementing agencies has had a negative impact on the larger process of democratization in the country (Chandler 2001). A number of decisions taken by the High Representative during the past years have suspended or opposed decisions – election results or votes in parliament – that had been democratically endorsed by the Bosnian voters or elected officials. While in most of these decisions the argument has forcefully been made that they sought to correct nationalist, obstructionist, or corrupt practices and decisions, they undermine the nascent democratic process in the country. In addition, the nature of decision-making in international organizations limits their credibility as agents of democratization. The decision-making process of the OHR, as that of other international agencies, is inherently secretive and ‘intransparent’. Additionally, relatively small groups of policy makers are able to exert disproportionately large influence. This development has been widely recognized by a range of domestic actors who have sought to influence policy less through parliament or other democratic institutions, but rather through lobbying the OHR and the other agencies, effectively extending the role of these international agencies in terms of their duration and breadth. These critiques gained additional weight with the parliamentary assembly of the Council of Europe criticizing the powers of the OHR. A detailed report, in particular noting the lack of legal recourse for dismissal, was published by the Venice Commission in early 2005 (Venice Commission 2005). After the OHR, the OSCE has been the international organization with the most significant role in the implementation of the DPA. Besides a number of more general projects in the field of democratization and media, the OSCE was charged with carrying out the first elections in Bosnia. Elections have been a key pillar in the international community’s attempt to further reconciliation and democratization in Bosnia. Through the Provisional Election Commission, the

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OSCE determined the election rules. Despite this high degree of international intervention into the electoral process – from party registration, partial funding of parties, to the dismissal of official and candidates – the election results did not favour candidates or parties that were supported by or supportive of the international community in Bosnia (Shoup 1997: 10-14). In addition to the OHR and the OSCE, the United Nations contributed significantly to the implementation of the peace agreement. The organization was charged with the training and monitoring of the local police forces through the creation of the International Police Task Force (IPTF). The 1,500 members of the IPTF were charged with monitoring the police forces with the mandate to professionalize and de-‘ethnicize’ them. Furthermore, the UN has been instrumental in the creation of the State Border Service, the only security structure under the control of the joint institutions, tasked with controlling the external borders of Bosnia (Report of the Secretary General 2000). The EU Police Mission succeeded the UN presence in 2003 with similar activities. Nevertheless, a more substantial police reform, including the abolition of the entity and cantonal control over the police have been under discussion since 2004. Generally speaking, the international presence has been scaled down in size and in the number of actors since 1996. In addition, the EU has taken on key responsibilities from NATO and UN. Furthermore, the OHR is at the same time the Office of the EU Special Representative in Bosnia, with the latter position to eventually eclipse the OHR. In the sphere of economic reconstruction, the EU again and international financial institutions, such as the World Bank, lead the way. Their tasks do, however, not fall within the narrow range of the DPA itself. Finally, a number of individuals from outside Bosnia, Croatia, and Yugoslavia have played a key role in the institutional framework of Bosnia. As mentioned earlier, three of the nine members of the Constitutional Court are foreigners. Similarly, the Central Bank contains an international component. The first governor of the bank, chosen for a six-year term by the International Monetary Fund (DPA 1995: Art VII), contributed significantly to the acceptance of the Bosnian currency, the Konvertibilna Marka. In addition, the joint institutions charged with overseeing human rights in Bosnia contain a strong international component. The Ombudsperson for Human Rights is nominated for a five-year term by the Chairman-inOffice of the OSCE (DPA 1995: Annex 6, Art IV), while eight of the fourteen members of the Human Rights Chamber are nominated by the Committee of Ministers of the Council of Europe (DPA 1995: Annex 6, Art VII), for a five-year term. These positions – held by citizens of neither Bosnia nor its two neighbours – are to eventually revert to domestic office holders after the transition period. The original transition periods of five or six years have been extended, however, due to the lack of political progress at the state level. As result, a number of international organizations, the IMF, the OSCE, the Council of Europe, and the European Court of Human Rights have been granted significant influence on the domestic institutional system. The creation of Bosnian institutions with international participation has been largely more successful than the outright separation of international and Bosnian institutions. Both the Central Bank and the Constitutional Court did

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

emerge as key institutions of the joint state in recent years. Their independence from the political process and their decisions in strengthening the Bosnian state (such as the introduction of the convertible Mark and the Court decision on the entity constitutions) could be considered as successes of mixed international-domestic institutions. The eventual phasing out of international participants in the institutions also will provide for complete local ownership of these institutions. In addition to the formal powers of the international organizations in Bosnia, one has to note the strong informal influence of these organizations and of Western governments (represented through their embassies in the country). For example, the Alliance for Change, comprising a motley group of ten parties centring on the SDP, was established following the November 2000 election with the active involvement of the OHR and the US embassy in Sarajevo (Domi 2001). Only this post-election engineering enabled moderate political parties to take power for the first time in the Federation and at the state level. Both the economic and diplomatic power of the international community and Western governments in Bosnia and the extensive powers accorded to the OHR have yielded the international community leverage in the political system of Bosnia well beyond the power granted in the DPA or by the Peace Implementation Council. At times, the intervention of different countries has even been detrimental to the peace process. The most notable example was the arrest by American agents of six Algerians suspected of planning terrorist attacks in early 2002. The Bosnian authorities had previously released them, after not receiving sufficient evidence from the US authorities. This clear breach of Bosnian laws by foreign countries was widely criticized in Bosnia by human rights organizations and undermined the claim by international agencies to further the establishment of the rule of law in Bosnia (Simić 2001). Despite the length and the detail of the Dayton Peace Accords in many of its aspects and the significant international presence in Bosnia since 1995, a surprising number of areas of governance are either not addressed at all, or only in passing. The entities, wherein most power is vested according to the constitution, particularly have had little formal regulation of their policies through the DPA. The Constitutional Court decision of 2000 forced the entities to significantly change their institutions and structures so as to conform to the state constitution. Fields that were not deemed to fall into the narrow scope of interethnic relations, such as economic reform or social entitlements, were excluded from the agreement. At the same time, the international community has exercised its mandate in Bosnia very broadly, which has meant that it has become active in fields far beyond the narrow scope of the agreement itself. The peace agreement, with its 11 Annexes, maps and ‘side-letters’, was an attempt to broaden traditional conceptions of peace treaties or ceasefire agreements, while also providing a blueprint for the post-war reconstruction of Bosnia. In doing so, however, it created a structure that was so weak that it gave Bosnia little institutional hold at the centre. The agreement, written with the concerns of the time in mind, focused rather narrowly on key issues such as central institutions, human rights and the status of refugees, and, most importantly, military disengagement.

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Other aspects, such as the institutions of the entities, economic reform, and reform of the police and judiciary lay outside the scope of the agreement. V

Acceptance and Obstruction of the Dayton Peace Accords

Only the Republic of Croatia, the Federal Republic of Yugoslavia and the Republic of Bosnia-Herzegovina formally negotiated the Dayton Peace Agreement. The exclusion of both the Bosnian Croats and Bosnian Serbs from the negotiation process bore the risk of rejection by either of the two groups’ political leadership. In the case of Bosnian Croats, however, the close party links with Croatia and clear control exerted by the Croatian government and ruling party over the Bosnian Croat leadership20 ensured that Croatian acceptance would translate into Bosnian Croat acceptance. In the absence of such a direct link between Bosnian Serbs and Serbian/Yugoslav authorities after 1993–1994, the danger of rejection was considerably larger. The Bosnian Serb leadership had only conceded that Milošević could negotiate on their behalf after considerable pressure was exerted on the leadership of the RS. Furthermore, the Bosnian Serb leadership had successfully undermined previous peace agreements, most notably the Vance-Owen plan, which was first signed by Radovan Karadžić, but later renounced by the Bosnian Serb parliament and submitted to a ‘referendum’ in which the plan was rejected (Burg and Shoup 1999: 248-249). The agreement was nevertheless accepted – albeit reluctantly – by all the main political forces in Bosnia. The acceptance by the nationalist forces in Bosnia was largely tactical with little commitment to any significant implementation of the agreement. The most significant resistance to the implementation of the agreement arose from local authorities under the control of the nationalist parties, most notably the SDS and the HDZ. The rejection of the agreement’s implementation was particularly evident from the unwillingness to accept the return of non-dominant groups to their former homes. With the widening of the High Representative’s powers in 1997, a number of local officials were dismissed for hindering the return of refugees or internally displaced persons (IDPs), or for failing to prevent acts (at times even the organization) of violence against returnees (International Crisis Group 1999b). While the three nationalist parties remained at least formally committed to the DPA, largely because they were able to prevent and/or delay any substantial implementation and also out of fear of international reprisals, the most important political force that openly opposed the agreement was the Serbian Radical Party (SRS Srpska Radikalna Stranka). The party, a branch of the extremist nationalist party in Serbia under the leadership of Vojislav Šešelj, won the presidential elections in the RS in 1998 in coalition with the Serb Democratic Party. Nikola 20 For example, both the moderate HDZ leader in Bosnia Stjepan Kljuić (in 1992) and the hardliner Mate Boban (in 1994) were ousted as a result of HDZ intervention from Croatia.

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

Poplašen exercised his office as president of the RS for only a few months, as he was dismissed by the High Representative for obstructing the DPA in March 1999 (International Crisis Group 1999a). While the political programme and the behaviour of Poplašen in office suggest that the party opposed the DPA, even the SRS and its president formally endorsed the peace agreement (Glas Srpski 1998). The most controversial aspect of the agreement was the right of refugees to return to their pre-war homes, as stipulated in Annex 7 of the DPA. While the peace agreement in its other aspects did not threaten the demographic homogeneity and political dominance created by the nationalist parties, the principle of refugee return provides a serious challenge to the results of ‘ethnic cleansing’. Significant parts of the governing elite in the RS and in Croat controlled areas unofficially continue to support separation from Bosnia and an eventual union with their kinstates. Nationalist political elites in Bosnia and neighbouring Croatia and Yugoslavia have, however, realized that this goal had to be postponed in favour of maintaining the entities or territories with far reaching autonomy (Koštunica 1999). After the challenge to the DPA by Nikola Poplašen, the decision of the HDZ leadership in late 2000 and into early 2001 to withdraw from the joint institutions and form a system of Croat self-government constituted the next most serious challenge to the peace agreement on the state-wide level. While the HDZ under the leadership of Ante Jelavić sought to maintain a degree of formal support for the DPA while criticizing post-Dayton international policy towards Bosnia, especially some last-minute election rules for the November 2000 elections, their position led to the dismissal of Jelavić from the Bosnian presidency by the High Representative (Bieber 2001). After a six-month boycott, the HDZ returned to the state and Federation institutions, thus ending that challenge to the peace process. In the course of DPA implementation, the support and rejection of the agreement has shifted considerably. While the moderate non-nationalist parties, such as the social democratic parties, supported the agreement in its early phase, they emerged as the main critics of the accords by 2000. This was particularly true of the Party for Bosnia-Herzegovina (SBiH, Stranka za BiH), founded by the former Bosnian prime minister and leading SDA official Haris Silajdžić, which had vocally advocated a change of the DPA and the abolition of the entities (especially the RS). Despite the party’s opposition to the agreement, its position was not criticized by the international community, and in fact it became, together with the SDP, a main pillar of the international community’s strategy to marginalize nationalist forces in Bosnia. The fact that the DPA is itself inherently contradictory and encompasses the concept of Bosnia’s re-integration, as well as those of decentralization and ethnic separation, has made it difficult to assess the level of rejection or support for the DPA. The High Representative has dismissed a number of elected officials in the past years for obstructing the peace accords’ implementation or for openly rejecting the agreement. These dismissals did, however, only affect officials who had argued for a lower degree of re-integration of Bosnia than foreseen in Dayton, while support for a stronger state than prescribed in the DPA was deemed acceptable. Since the challenge to the agreement in 2001, the preferred strategy of opponents

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has become obstruction, i.e., formal support coupled with non-implementation. As the political and security situation in Bosnia evolved fundamentally since 1995, the key challenge has become the interpretation of the Dayton Accords in the light of the time eclipsed. Whereas the international actors sought to integrate the state at a higher degree of centralization than foreseen in the text of the peace accords, the Bosnian Serb political forces primarily sought to limit the evolution of the state to the minimum requirements foreseen in the peace accord. VI The Implementation Record of the Agreement The Dayton Peace Accords have been widely credited with ending a war, while both the agreement itself and its implementation have been severely criticized for not addressing some of the negative effects of the war and failing to substantially reduce interethnic tensions. Assessing the success of the implementation of the DPA has been difficult, due to the complexity of the institutional structures, the multiple domestic and international actors charged with its implementation and the internal contradictions of the agreement itself. In evaluating the implementation, one can divide the process since the signing of the accords into three phases, which mark a progressive increase in the implementation process, both quantitatively and qualitatively. During the first phase (December 1995–December 1997), when the High Representative was given increased competencies, the so-called Bonn powers, the implementation was restricted to Annex 1 A, i.e., the establishment of a ceasefire. The reluctance of IFOR/SFOR to act in areas outside the narrow military implementation process and the lack of power given to the civilian agencies meant that joint institutions existed only pro forma, freedom of movement across interentity boundaries was impossible, and the parallel power structures of the three nationalist parties remained largely undisturbed. The second phase (December 1997–early 2001), marked an incremental increase in international intervention in the implementation process and a weakening of the parallel structures. While the joint institutions remained frail due to the continued electoral success of nationalist and obstructionist politicians, the international community sought to bolster moderate, or – more often – the slightly less compromised figures in both entities, such as Biljana Plavšić or Milorad Dodik in the RS. The lack of popular support meant, however, that the acceleration in the implementation process was internationally driven and lacked roots in a popular consensus, even if members of all three communities eventually welcomed some of the measures, such as the introduction of the convertible Mark or the establishment of Bosnia-wide license plates. The third and final phase began in May 2000, when for the first time since the introduction of multi-party democracy in Bosnia non-nationalist parties could make significant gains at the expense of the three nationalist parties. Although the November 2000 elections did not bring about a significant shift of public opinion away from the nationalist parties, with the exception of the Bosniak-

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

dominated part of the country,21 it did yield an election result (Table 1) that enabled a fragile coalition of multinational and moderately nationalist parties to take over from the ‘big three’ in the state government and parliament, and in the Federation. While the record of the new government has been mixed, it provided the international community with a local interlocutor in the implementation process. The emergence of a local partner coincided with a shift of the international community’s policy, which recognized the need to strengthen the state institutions. A number of individual events, such as the aforementioned Constitutional Court decision, the change of regimes in Croatia and Yugoslavia, as well as the isolation of Croat extremists due to the proclamation of Croat self-government in March 2001, furthered the demise of parallel power-structures. Table 1 Results of the Bosnian Elections, November 2000 (House of Representatives) Party Federation of Bosnia-Herzegovina SDP SDA HDZ BiH Stranka za BiH DNZ BiH NHI Others Republika Srpska SDS PDP SNSD/DSP SDA SP RS Stranka za BiH SDP SNS RS – Biljana Plavsic Others

Percentage of vote

Seats won

Party orientation

27.3 27.0 19.3 15.6 2.2 2.0 6.6

8 7 5 4 1 1 1

Moderate Nationalist Nationalist Moderate Moderate Moderate

39.7 15.2 10.6 7.4 5.7 5.4 5.2 4.5 6.3

6 2 1 1 1 1 1 1 0

Nationalist Moderate Moderate Nationalist Moderate Moderate Moderate Moderate

Source: OSCE Mission to Bosnia and Herzegovina website www.oscebih.org.

On the fifth anniversary of the signing of the DPA, the International Crisis Group concluded in their comprehensive review of the implementation process that 21

An ESI report points out that in fact the November 2000 election results largely mirror the November 1990 elections that brought the nationalist parties to power (European Stability Initiative 2001: 7).

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“[t]he effect has been to cement wartime ethnic cleansing and maintain ethnic cleansers in power within mono-ethnic political frameworks … Indeed, the only unqualified success has been the four-year absence of armed conflict.” (International Crisis Group 1999c: i). Since this assessment, some progress has been made, as aptly described by the European Stability Initiative (ESI): Over the last two years, Bosnia has changed dramatically. The ethnic power structures left over from the war have begun to crumble. Political changes in Croatia and Serbia have cut external revenues, forcing the political elites in Bosnia to reorient themselves towards the international community and participate in the Bosnian state. Although the nationalist parties continue to enjoy widespread electoral support, the post-war nationalist regimes, built on the ideology of ethnic cleansing and dedicated to the objective of dividing Bosnia, have gone. Determined international efforts to support the return of displaced persons, arrest indicted war criminals and challenge the security structures, including paramilitary and intelligence services, have yielded results (European Stability Initiative 2001: 2).

Any assessment of the implementation of the agreement thus far has to take into account the gradual process in which implementation has taken place. In assessing the implementation of the accords, one can divide the degree of success (or the lack thereof ) into four categories: • no or little implementation (1); • partial, yet incomplete implementation (2); • significant implementation (3); • full implementation (4). Table 2 shows that the degree of implementation varies greatly between the different annexes of the peace agreement. While some have been largely implemented, with others, implementation remains in the early stages. Table 2 Implementation record by Annex, 1996–200522 Implementation level Military Aspects (Annex 1a) Regional Military Aspects and Stabilization (Annex 1b) Inter-entity Boundary Line (Annex 2) Elections (Annex 3) Constitution (Annex 4) Human Rights (Annex 6) Refugee (Annex 7) Monuments (Annex 8) 22

1

2

3 *

*

* *

4 *

* * *

Annex 5 on Arbitration and Annex 9 on Corporations have been excluded, as their implementation cannot be evaluated.

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Evaluating the different aspects of the peace accords according to degree of implementation allows for an analysis of the most problematic fields in the accords and helps identify agencies that have proven to be particularly weak in implementing the peace accords. In the following, I will examine the crucial issues of Refugee Returns (Annex 7), Joint Institutions (Annex 4), and Human and Minority Rights (Annex 4 and 6), which are directly related to the Dayton Peace Accords. Subsequently, I turn to fields that are of particular importance in post-conflict settlements for divided societies, such as education, communications and media, administration of justice, and cross-border cooperation, but which are not or are only marginally addressed by the DPA. A

Refugee Return

The war in Bosnia saw the displacement of over half of the population. 1.1 million people were internally displaced, while 1.2 million sought refuge outside of Bosnia in Croatia, Yugoslavia and other third countries. The peace agreement sought to redress this massive human displacement for both moral and practical reasons. Accepting the permanent displacement of over 50% of the population would have been interpreted as rewarding the political forces who sought to ‘ethnically cleanse’ territory under their control in order to establish mono-ethnic statelets. From a practical perspective, the high number of refugees placed a significant burden on many countries, not to mention the two neighbouring countries and presented the risk of a permanent source of insecurity, as has been the case with Palestinian refugees in countries neighbouring Israel. Annex 7 thus stipulated that: all refugees and displaced persons have the right freely to return to their homes of origin … [and] have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. (DPA 1995: Annex 7, Art I, 1).

The focus of the return process has been on so-called minority returns, i.e., the return of displaced people to their original place of residence in which they now constitute a minority, be it at the level of the entity for the RS, or at the level of cantons for the Federation.23 While the return to majority areas has also been frequently problematic, the minority returns have posed the most significant problems and were often obstructed by local authorities. Most of the returns in the first phase after the war were returns to areas of the majority of the refugees and displaced people, while the later and slower returns were minority returns. By mid-2000, the UNHCR concluded that “return movements to ‘majority’ areas have largely been completed” (UNHCR 2000b: 205). 23

For the two ‘mixed’ cantons in the Federation, the minority status is determined at the level of the municipality.

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Source: UNHCR 2005a.

1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total

Refugees Internally Displaced Persons BosCroat Serbs Other Total BosCroat Serb Other Total niaks niaks 76,385 3,144 8,477 33 88,039 101,402 505 62,792 42 164,741 74,756 33,568 11,136 820 120,280 39,447 10,191 8,452 205 58,295 78,589 23,187 6,765 1,459 110,000 15,806 4,325 9,139 300 29,570 18,440 6,299 6,332 579 31,650 24,907 6,760 11,315 403 43,385 7,633 4,834 5,303 837 18,607 36,944 7,779 14,175 449 59,347 4,642 4,244 9,155 652 18,693 48,042 5,960 25,734 436 80,172 12,592 5,933 18,220 389 37,134 41,511 5,319 23,215 730 70,775 5,257 2,852 5,482 421 14,012 21,861 2,267 16,023 152 40,303 976 450 942 74 2,442 12,976 1,028 3,888 56 17,948 518 127 195 3 843 2,470 302 650 6 3,048 279,788 84,638 72,007 5,267 441,700 44,436 175,383 2,779 567,964

Table 3 Return of Refugees and IDPs (January 1996– July 2005)

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Altogether, only about a third of all refugees and IDPs had returned in the six years since the end of the war, with the result that the current ethnic structure of Bosnia remains drastically altered in comparison to 1991, as is illustrated in Table 3.

On a broader scale, the return of refugees is closely interconnected with the political representation and inclusion of the non-dominant returnees into the political system. Even more pertinent is the lack of economic prospects for returnees, which are the result of both discrimination and the absence of overall economic

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

development in Bosnia (UNHCR 2000a). In addition, the communes to which refugees seek to return have to be able to provide certain services to the returnees, such as schooling, social and health care, and the prospect of finding a job. The absence of these basic conditions for return, often not based on discrimination but on the overall poor state of many communes, has been an important obstacle to refugee return. The acceleration of the return of refugees to minority areas began in 1999 (Figure 1) and has since increased dramatically. This even included areas where return had been prevented for a long time by nationalist forces, especially in eastern Bosnia and in Herzegovina by local Serb and Croat authorities respectively (International Crisis Group 2000: 3-6). Figure 1 Minority Returns in Bosnia, 1996-2004 120,000 100,000 80,000 Line 1

60,000 40,000 20,000 0 1996/7

1998

1999

2000

2001

2002

2003

2004

Source: UNHCR 2005

The return of refugees to minority areas is connected with a number of factors and can be seen as a litmus test for the overall progress in stabilizing Bosnia. In the narrowest sense, the return of refugees is dependent on the immediate security for those who wish to return. Secondly, the return process is largely conditional on a clarification of the ownership of property and the restitution of real estate to pre-war owners. In an overall assessment, the return of refugees has only been partially successful. The acceleration of minority returns and the de facto completion of majority returns point to the possibility of success in this most ambitious part of the Dayton Peace Accords. At the same time, the fact that approximately half of all refugees and IDPs continue to live in their new areas of residence ten years after the end of the war and that the return process has sharply declined since 2003 renders the assessment of the implementation of the peace accords less optimistic in this aspect. With the passage of time, the eventual return of many refugees and IDPs will become less likely, as families establish new homes with professional and personal ties and might be reluctant to give them up again. The reason for the lack of success in the implementation of refugee return can be attributed to the obstruction to the return process, mostly at the local level. The RS, particularly, even under its more moderate governments, has hindered returns to a considerable degree, with

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the clear intent of preventing a reversal of the population structure to a more diverse society where Serbs could lose political, socia,l and economic dominance. In addition to political obstruction, the lack of economic opportunities and the problem of refugees living in occupied property have further hindered return. As, in 2000, Bosnia took in nearly 40,000 Serb refugees from Croatia and both Croatia and Yugoslavia had over 220,000 refugees from Bosnia (UNHCR 2000b: 205), the return process has a regional dynamic and is closely linked with the policy towards return in the neighbouring states. B

Building Joint Institutions

A key endeavour of the Dayton Peace Accords has been the re-establishment of joint institutions, which would maintain a degree of territorial integrity for Bosnia. The institutions established in the DPA are, as pointed out above, weak and largely dependent on the entities. The slow implementation process further undermined these institutions. The predominance of the three nationalist parties in the post-war elections until November 2000 had meant that, at the level of the joint institutions, an informal coalition of the three parties prevented the creation of any viable institutions. In addition, the international community in Bosnia did not focus on strengthening the institutions until 2000. The European Stability Initiative has pointed out that this delay was caused by the focus of the international agencies on creating a sound security environment, which enforced cooperation with existing power-structures at the expense of newly created institutions (European Stability Initiative 2000). Only three joint ministries (foreign affairs, foreign trade and economic relations, and civil affairs and communication), the minimum number, existed before 2000 and even these were seriously understaffed. The Council of Ministers was weakened by a regular rotation (every eight months) of the chairman of the council. Political representatives from the RS also refused to upgrade the council to government, if only in name, as this would have implied an additional quality of statehood vested in the joint institutions. The elaborate veto-system of the joint institutions provided an additional disincentive to effective decision-making. Although the ‘vital interest’ veto was rarely invoked, the implicit or explicit threat of its usage effectively blocked decision-making. The rigidity of the veto rights accorded to the three communities in the DPA has been problematic as it scarcely offers any mechanism for reaching compromise. In the presidency, vetoes by its members can only be overridden if two thirds of the national assembly of the RS or the respective Croat or Bosniak delegates of the House of People of the Federation endorse the original decision vetoed by the presidency members (Constitution, Art V(2)(d)). As such the mechanisms only provide for the over-riding of the veto if the presidency did not ‘represent’ the interests of the respective community adequately, while neither ‘national interest’ is defined, nor does a mechanism exist which seeks to mediate between the different interests. The veto mechanisms in the parliamentary assembly, on the other hand, do have a mediating component. In case of veto by either community, a committee of three members from each community can be

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

constituted to find a compromise. If this committee does not, however, arrive at a solution, the matter is then referred to the Constitutional Court (Constitution, Art IV(3)(f )). Thus, there are only limited incentives and mechanisms for mediation, in contrast to the complex procedures in the current Constitutional Framework in Kosovo, which does not grant an explicit veto to minorities but where the different communities can delay parliamentary decisions. In addition to institutional reasons for the weakness of the joint institutions, the financial and fiscal dependency of the state on the entities exacerbated the problems at the state level. With no substantial resources of its own and only sporadic payment by the entities, the joint institutions lacked the financial viability to carry out the tasks accorded to them in the DPA. International financial support was largely directed at the entities, further weakening the leverage of the joint institutions (European Stability Initiative 2000). A change to the weakness of the joint institutions came in a number of steps occurring in late 1999 and 2000. In late 1999, the Constitutional Court declared parts of the Law on the Council of Ministers of Bosnia and Herzegovina and the Ministries of Bosnia Herzegovina unconstitutional. The law had further weakened the council through the establishment of a vice-chair of the Council and additional control through the presidency. The court’s decision emphasized the role of the prime minister, i.e., the chairman of the Council of Ministers, thereby enhancing the role of this joint institution (Constitutional Court 1999). The meeting of the Peace Implementation Council in Brussels in May 2000 further shifted the attention to the strengthening of the joint institutions: Effectively functioning State institutions are a prerequisite for a modern European State and for progress towards BiH’s entry into European and Euro-Atlantic structures. Ensuring that BiH has such institutions remains a key strategic priority for the Council. Many public institutions at all levels, but in particular State institutions, continue to fail the citizens of BiH, due to lack of political will on the part of the ruling political parties and the continued existence of parallel institutions. (Peace Implementation Council 2000).

The focus of the High Representative and the international community in institution-building has been the strengthening of existing institutions and the creation of new institutions (ESI 2000). An example for this has been an EU-funded project that seeks to strengthen and professionalize the civil service at the state level. In addition to strengthening existing institutions, the HR representative initiated the creation of a number of new institutions, such as the establishment of a Bosnian State Court to supervise the implementation of state laws or the State Border Service. Additionally, a number of regulatory agencies were created at the state level, such as the Communications Regulatory Agency (CRA). Other bodies were created by the OHR to supervise and advise on institutional reform in Bosnia, for example, the Independent Judicial Commission (IJC). The activities on behalf of the international community could not overcome the fact that the institutions themselves were too weak to establish their supremacy over parallel power-structures and the en-

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tities. The fact that the High Representative imposed most of these institutions reflects the lack of consensus and the degree of obstruction, especially by most Serb members of parliament, to enhancing the joint institutions. The change of government at the level of joint institutions in January 2001 provided an opportunity for new authorities with a stronger commitment towards the joint institutions. In some areas, the functioning of the institutions has been enhanced. In fact, parliament and government worked more effectively in 2001 than before. Moreover, the limited mandate of chairmanship of the Council of Ministers, which was limited to eight months, was dropped. Even after the nationalist parties took again power in 2002, the institutions continued to operate more effectively than earlier. The fragility of the coalition government and resistance of Serb members of the new joint government and parliament to any steps strengthening the state institutions prevented any substantial steps towards a full implementation of the DPA with regard to the joint Bosnian institutions. As is the case with the return of refugees and all other aspects of the peace accords that have seen a full or partial implementation, the process has been largely driven by the international organizations and only marginally by local political actors. C

Human and Minority Rights

The constitution set forth in the DPA commits Bosnia to a comprehensive list of international human rights agreements.24 The human rights situation on the 24 The constitution lists: 1. 1948 Convention on the Prevention and Punishment of the Crime of Genocide; 2. 1949 Geneva Conventions I–IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I–II thereto; 3. 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto; 4. 1957 Convention on the Nationality of Married Women; 5. 1961 Convention on the Reduction of Statelessness; 6. 1965 International Convention on the Elimination of All Forms of Racial Discrimination; 7. 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto; 8. 1966 Covenant on Economic, Social and Cultural Rights; 9. 1979 Convention on the Elimination of All Forms of Discrimination against Women; 10. 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 11. 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; 12. 1989 Convention on the Rights of the Child; 13. 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

ground, however, remains problematic in large parts of Bosnia. Human rights violations against national minorities are frequent. In addition, the dominant nationalist parties use their predominance against political opponents and the free media (Helsinki Committee for Human Rights in BH 1999a). Cases of politically motivated violence by authorities and individuals has declined in the past five years, but remains a problem, especially in association with minority return. Further serious human rights violations are connected with the rights of minorities, ranging from political to religious rights (Department of State 2000).25 Furthermore, war crimes committed between 1992 and 1995 are only addressed slowly and many major suspects remain at large, especially in the eastern RS (Helsinki Committee for Human Rights in BH 1999b). Difficulties in implementing the Human Rights protection foreseen in the Dayton Accords are largely caused by local authorities and the three nationalist parties (in varying degrees). The Human Rights Ombudsman and the Human Rights Chamber are charged with investigating human rights violations, as outlined in Annex 6 (Ch 2) of the DPA, and have seen their work expand in the past years. The Human Rights Chamber, with fourteen members (eight nominated by the Council of Ministers of the Council of Europe, four by the Federation and two by the RS), hears cases of human rights violations brought by individuals or organizations. Similarly, the Ombudsman, who is a foreign national, takes on individual complaints and tries to investigate them. The Human Rights Commission, a part of the Constitutional Court, took over from the Human Rights Chamber after it was shut down. The massive challenge of addressing human rights concerns in Bosnia is visible when considering that the Commission had a backlog of over 5,000 cases in January 2005. Table 4 Cases at the Human Rights Chamber, 1996–1999 Year 1996 1997 1998 1999 Total

Number of applications received 31 83 1,387 1,953 3,449

Number of decisions issued 0 19 67 206 292

Source: Human Rights Chamber 2000.

While these institutions have worked and addressed human rights concerns for a number of years, they have been frequently overburdened with the number of cases (Table 4). In addition, the central human rights problem of refugee returns easily escapes these institutions, as the insecurity at the original place of residence

25

14. 1992 European Charter for Regional or Minority Languages; 15. 1994 Framework Convention for the Protection of National Minorities. See also the regular Faxletter published by the Helsinki Committee for Human Rights in BH, available at: http://www.bh-hchr.org/.

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is only in part due to discrimination by local authorities and is very difficult to grasp. Despite the heavy foreign involvement in these institutions, they contain a strong Bosnian component and are rooted in the institutional infrastructure of Bosnia, making them more likely to outlive the international presence than other structures. In addition to the aforementioned problems regarding the implementation of human rights, the DPA is surprisingly weak in regard to minority rights. While the Constitution obliges Bosnia to adhere to the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities, the international standards are inadequate for protecting minorities in the mono-ethnic autonomies of the entities. Neither of the two entities was obliged to grant minority rights to either members who belong to none of the three constituent peoples or to citizens from the non-dominant nation. Thus, while the right to return and other human rights were (inadequately) protected, key group rights to counterbalance the ethnic autonomy of the entities – for example, providing for education of minorities in the non-dominant history and culture – are lacking. Arguably, some aspects of minority rights are less relevant in Bosnia, as the three nations of Bosnia speak the same language, despite the recognition of Croatian, Serbian, and Bosnian, only differing in the official use of the alphabet.26 As a consequence of the absence of a comprehensive minority rights system, the ethnic autonomy created through and in both entities has been particularly problematic. Only the changes to the entity constitutions in 2002 and the efforts at passing a minority law have recently initiated a process which can offset some of the deficiencies of the original DPA. D

Education

During the war the educational system of Bosnia was degraded to a considerable degree. Nevertheless, schools and universities continued to operate throughout the war. Educational institutions were divided into three separate systems during the war. The Croat and Serb educational systems were integrated with their counterparts in Croatia and Yugoslavia, respectively, during the war. The Dayton Peace Accords vests educational policy in the entities. While in the RS education is governed at the level of the entity in a highly centralized fashion, in the Federation the cantons and their ministries administer education. In cantons with a mixed population, education has even been partly devolved to the municipalities. As a result, there are no institutional mechanisms for the re-integration of the divided education system in Bosnia. The peace agreement did not seek to re-integrate the education sector in Bosnia. This segmentation has been assessed as being largely detrimental to the quality of the educational system in Bosnia, as a Council of Europe report asserts: “As a result of Dayton’s legal mandate, the 26 While all official communication of the Republika Srpska is in Cyrillic, most print media is produced in Latin script.

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

educational sector is dominated by politics” (Council of Europe 1999: 9). In addition to the segregation of the education system, the content of curricula and textbooks has been a major problem. Textbooks made no or little reference to the history or culture of the other nations in Bosnia and interpreted recent events, such as the war in Bosnia, according to the political interpretation of the respective community. In the RS and in Croat-controlled areas of the Federation, most textbooks were from Yugoslavia and Croatia, respectively (Low-Beer 2001: 215216; Donia 2000). Attempts at some degree of coordination in the education sector were only undertaken by the OHR in 2000 in light of the extension of the international mandate for Bosnia, more than four years after the end of the war. In an agreement brokered by the OHR in May 2000, the educational ministers of the entities, including a Bosniak and a Croat representative from the Federation, the entities committed themselves to coordinating education policy: Education must no longer be used to divide and fragment the communities of Bosnia and Herzegovina; on the contrary, it should be used to bring them together and live in tolerance with one another. Any existing forms of segregation must be removed from the parallel education systems in the Federation and Republika Srpska, and co-ordination assured in order to facilitate the return of refugee families throughout the whole of Bosnia and Herzegovina. (Meeting of the Conference of the Ministers of Education 2000a).

The agreement concluded at the meeting committed the education ministers to remove offensive materials from the curricula and textbooks and to emphasize the common cultural heritage in future textbooks, including the usage of both Latin and Cyrillic script. As a consequence, most textbooks used in Bosnia today are authored in Bosnia, rather than imported from Croatia and Yugoslavia. The ministers also created a ‘Curriculum Harmonization Board’ to bring the entities’ curricula in line with the goals of the agreement and also committed themselves to including minority-specific education, mutual recognition of diplomas, and country-wide education about Bosnia’s main religious communities (Meeting of the Conference of the Ministers of Education 2000b). While the agreements provided for a major improvement of the education sector, the system remains segregated, reflecting the high degree of ethnically-based decentralization in the country. This segmentation extends to the university system as well. In Mostar, two universities, one in the Croat and one in the Bosniak part of the town, continue to exist after efforts to unify them failed (Bose 2002: 134-138). Since these agreements have been signed, a number of additional reform initiatives have been undertaken by the OSCE and other international organizations with the aim of harmonizing the curricula of the different education systems in Bosnia. In Brčko, in particular, schools have been entirely reintegrated and students only study key national subjects (history, language) in separate classes (Perry 2003). Although the international community in Bosnia has been constrained

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by the lack of a mandate in the DPA, the attention education has received in recent years has allowed for a reform process to be initiated. Even if a full reintegration of the educational system seems unlikely, a reduction of the excesses of segregation and ‘hate-speech’ in textbooks has been achieved since 2000. E

Communications and Media

Most observers of the war in Bosnia agree that the media played a pivotal role in inciting hatred against members of other nations and in spreading fear and stereotypes (Thompson 1994). Throughout the war, the main media outlets were under the control of the three nationalist parties, with only very limited activity by independent media outlets during the war in Sarajevo. Despite the significance of the media in Bosnia, it is not mentioned in the DPA. However, communication, in a broader sense, is a competence vested in the central institutions of the state (DPA 1995: Art III/1h). Only with the establishment of the Independent Media Commission (IMC) in 1998 was this competence addressed. This institution, which was later transformed into the Communications Regulatory Agency (CRA), renamed Regulatary Agency for Communication (RAK) in 2004, was charged with supervising the electronic media (Babić 2001). The international supervision of the electronic media has been instrumental in curbing hate speech in the media, as media contravening the IMC’s regulations could be fined, suspended, or shut down. The CRA has also been licensing the electronic media. This process, completed in 2001, has led to a consolidation of the media with a large number of small, non-viable stations not obtaining permanent operating licenses. The CRA has been identified as one of the more successful institutional experiments in post-Dayton Bosnia. The agency is currently well-established and one of the most effective Bosnian institutions at the state-wide level. It was created as an internationally-run agency and gradually transformed into a Bosnian institution, both in terms of personnel and in its structural development, to eventually become a local (and permanent) institution. As such, the RAK has been running somewhat counter to the general trend of expanding international involvement in the Bosnian process. However, since this experience, this model has been used with other state agencies and institutions, such as the Civil Service Agency, the State Border Service, and the High Judicial Councils. F

Economic Policies

Bosnia’s post-war development was shaped not only by the consequences of the conflict, but also by the legacy of communism, especially in the sphere of economics. Bosnia had been one of the least-developed regions of Yugoslavia, with a significant agricultural sector. Despite the victory of anti-communist parties in the first democratic elections in 1990, interethnic tensions prevented any steps towards economic reform or privatization. During the war, the three nationalist parties established a close symbiosis between the state and party, reminiscent of the League of Communists’ relationship to the state. State-run enterprises pro-

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

vided funding for the parties, and the parallel power structures they maintained offered employment in return for political loyalty. Only with the establishment of the Central Bank in 1997 and the issuing of the new currency, the Kovertibilna Marka (KM) in 1998 did the state assume its responsibility in the area of monetary policy. The success of the currency, despite some setbacks early on, managed to sideline the two other main currencies used in Bosnia, the Croatian Kuna in Croat-controlled areas and the Yugoslav Dinar in the RS. Economic policy, except for foreign trade and monetary policy, are the sole responsibility of the entities, with the competence lying with the cantons in the Federation. As a result, economic policy was determined mostly by the three nationalist parties in the areas of their influence (Donais 2002). While the economy has been largely untouched by the DPA, especially in the areas that remained under entity administration, some steps have been taken to reduce the overlap of corruption and nationalist parties. The most significant step here was the closure of the Payment Bureaus, the remnants of communist administration that served as clearing houses for all commercial transfers. These centralized institutions were controlled by the nationalist parties and provided important sources of income. Their closure, as proposed by the Peace Implementation Council, was carried out by the High Representative (OHR 2000a). This step has been part of a broader strategy of the international community to engage in a reform of the economy, as little privatization has taken place and unemployment remains high (Petritsch 2000). Since 2002, the economy received more extensive attention by the High Representative, in particular in regard to removing administrative obstacles to private business, such as the Bulldozer Initiative. However, the economic situation in Bosnia has remained precarious due to high unemployment and little foreign investment. G

Administration of Justice

Excluding the area of human rights protection and the institution of the constitutional court, the DPA did not foreshadow any mechanisms for either the reconstruction or reform of the judicial system or for its international monitoring. The High Representative has become active in the field of judiciary reform, however, as the rule of law, or rather the lack thereof, was identified as a major hurdle to the success of democratization and interethnic reconciliation. The line of argument for extending the High Representative’s mandate to the judiciary – making it de facto part of the DPA – can be traced in the decision on the establishment of a State Court for Bosnia: In the exercise of the powers vested in me by Article V of Annex 10 … according to which the High Representative is the final authority in theatre regarding interpretation [of the DPA] …; and considering in particular Article II.1. (d) of the last said Agreement, according to the terms of which the High Representative shall ‘Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection

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Florian Bieber with civilian implementation’; Recalling paragraph XI.2 of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the High Representative’s intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties as aforesaid ‘by making binding decisions, as he judges necessary’ on certain issues including (under sub-paragraph (c) thereof ) ‘measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities’; Recalling further paragraph 12.1 of the Declaration of the Peace Implementation Council which met in Madrid on 15 and 16 December 1998, which made clear that the said Council considered that the establishment of the rule of law, in which all citizens had confidence, was a prerequisite for a lasting peace, and for a self-sustaining economy capable of attracting and retaining international and domestic investors (OHR 2000b, emphasis added).

This example demonstrates the capacity of the High Representative to become active in any area that impacts on either the implementation of the DPA or on the establishment of lasting peace in the country. The reform of the judiciary in Bosnia was placed under the supervision of the Independent Judicial Commission (IJC), established by the OHR in November 2000 and closed in March 2004 after completing its work. The commission, consisting of Bosnian and international legal experts, reports to the High Representative, and monitors and intervenes in the work of the judicial reform commissions of the entities and cantons. A Memorandum of Understanding between the IJC and the Ministries of Justice of both entities, signed in July 2001, spelled out specific procedures for hiring judges and prosecutors to ensure both a professionalization of the legal system and better representation of minorities (OHR 2001c). The IJC also monitors the work of courts and prosecutors (OHR 2001a). Since then, the High Judicial and Prosecutorial Council, established in 2002 (in 2004 the two entity councils were merged) is responsible for the appointment of all judges (except for the Constitutional Court) and prosecutors and may remove judges and prosecutors or discipline them. In addition, the High Representative has taken a number of other decisions since 1999 aimed at reforming the judicial system. At the same time, the system is still marred by lack of professionalism, lack of resources and national bias (Huitfeldt 2000). Laws were imposed in both the Federation and the RS by the High Representative to overcome delays in the reform process of the judiciary. These decisions include amendments to the laws to further the independence of the judiciary, especially in regard to the nomination of judges and prosecutors. H

External Relations and Trans-border Cooperation

One of the few domains in which the central Bosnian government is equipped with powers is in the field of foreign relations (DPA 1995: Art III(1)). This competence has, however, been undermined by the fact that the two entities are allowed to establish “special parallel relationships with neighboring states” (DPA 1995:

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

Art III(2)), thus allowing the Federation to form close links with Croatia, and the RS to associate itself with the Federal Republic of Yugoslavia. While these relations have to be consistent with the “sovereignty and territorial integrity” of Bosnia, the formal acknowledgement of close links between the entities and the respective ‘mother state’ of two nations of Bosnia further eroded the already limited powers of the central institutions. As result of the weakness of the joint institutions and the limited basis for an agreement on foreign policy, the country’s external relations have been largely muted, both in the international and regional contexts. The Federation and Croatia concluded the Special Parallel Relations Agreement (SPRA) in 1998, while a similar agreement between the RS and the Federal Republic of Yugoslavia (FRY) was not concluded until spring 2001. The latter agreement was then vetoed by the Croat and Bosniak members of the Constitutional Commission of the RS. This veto was, however, overridden by the HR, who decided that the special relations agreement between RS and Yugoslavia did not constitute a threat to the vital interests of the other communities (OHR 2001b). The special relationships of the two entities with neighbouring states include institutions, such as in the case of RS-FRY relations, a Council for Cooperation and a Standing Committee. That both agreements were concluded a number of years after the end of the war highlights the fact that they constitute the formal tip of the iceberg in relations between the entities and the mother states. Indeed, most relations between either entities or Croat and Serb formal and informal institutions were conducted through non-formalized cooperation with Croatia and Yugoslavia in the post-Dayton period. For example, only on 1 March 2002 did the Yugoslav Army end its financial aid to the army of the RS, despite the fact that this type of support formed neither part of the special relationship, nor was endorsed by the DPA. Allowing for the creation of special parallel relations was not only a compromise with the nationalist demands of the Croat and Serb side during the Dayton negotiations. Establishing regulated relations with neighbours allows for the possibility of greater international control than during the shadowy wartime period. After the end of the Milošević and Tudjman regimes, respectively, the opportunity emerged for more substantial bilateral relations that were not necessarily detrimental to the internal stability of Bosnia. Both Croatia and Serbia ceased illicit funding to either entity or cantons, but political support among the political elites for their respective community has remained problematic, in particular on behalf of Serbia. I

Record of Implementation

The record of implementation has been mixed at best. While in some areas the implementation process did not progress beyond the formal creation of the institutions or structures foreseen in the DPA, in other areas international involvement in the peace process has extended far beyond the original text of the agreement. This seemingly contradictory process is a reflection of the inadequacies of the agreement. It is also an expression of the link between democratization

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and conflict prevention. The original agreement, as has been observed, focused on preventing a continuation or a near-immediate resumption of the conflict. It lacked, however, tools to democratize the country and to reduce the degree of institutionalized ethnic antagonism. Only the broad mandate of the High Representative through the so-called ‘Bonn Powers’ and a broadened interpretation of the agreement itself after 1997–1998 provided the tools to progress with the implementation of the agreement and the tentative stabilization of the country. The implementation process is thus nearly exclusively driven by the international community. During the early years, there was no alternative to an enhanced role for the international community, as domestic political actors either lacked interest in the implementation process or sufficient support from the population. This, however, involved the risk that the degree of intervention of the international community, which has been termed as being a quasi-protectorate, created a disincentive for local actors to agree on compromises and engage in a process of power-sharing (Bieber 2002). In addition, both the agreement and the international implementing agencies largely ignored the issue of reconciliation and the construction of a democratic political culture. Such processes still remain in their infancy and are mostly driven by nongovernmental actors rather than by domestic or international organizations. VII Current Status and Future Prospects A

Power-sharing Theory and the Case of Bosnia

After ten years of post-war reconstruction of Bosnia, it remains to be seen whether the arrangement that sought to resolve the overlapping self-determination disputes will provide for the long-term viability of the state and its institutions. There can be little doubt, however, that the Dayton Peace Agreement and its subsequent implementation and development ushered in a new type of power-sharing arrangement which extends beyond classical theories of power-sharing. Five key aspects of multiethnic governance characterize post-Dayton Bosnia: 1. Power-sharing at the level of state-institutions; 2. A high degree of ethnic autonomy; 3. Power-sharing in sub-state units, down to the level of communes; 4. Substantial institutionalized and informal international intervention, mediation and arbitration; and 5. Weak provisions for minority rights. Whereas the institutional origins of the settlement suggested a minimal degree of interethnic cooperation in multinational institutions with most powers vested in ethnically homogeneous institutions, the trajectory of the implementation process suggests a more integrative approach towards governance and the extension of power-sharing towards the entities through the inclusion of institutional representation of the three communities in the Federation and the RS.

7  Power-sharing and International Intervention: Overcoming the Post-conflict Legacy in Bosnia and Herzegovina

As described previously, the degree of power-sharing in post-war Bosnia derived from the autonomy of the entities, whereas most power-sharing theory considers autonomy to be a function of the power-sharing arrangement at the centre (Lijphart 1977: 41-44; Horowitz 1985: 619-628). As Yash Ghai observes, ‘“[a]utonomy, particularly federal autonomy, is built around the notion that the people of a state are best served through a balance between the common and the particular … The secret of autonomy is the recognition of the common; certainly it seems to be the condition for its success”, (Ghai 2000: 24). In Bosnia, the particular continues to prevail over the common, both in terms of the division of powers and in terms of domestic political support. Whether the attempt to offset this trend by strengthening the centre through integrative measures and by promoting power-sharing in the entities also, as evidenced by the institutional changes at the entity level in spring 2002, will be successful it is still too early to judge. Two key observations or even lessons can be drawn on the basis of the Bosnian case in understanding internationally-mediated power-sharing arrangements. First, a high degree of ethnic autonomy has to be balanced by comprehensive minority rights mechanisms to prevent ethnically exclusive governance in parts of the country – even if a power-sharing arrangement exists at the centre. Second, power-sharing arrangements have to be weary of excluding citizens without ethnic affiliation and smaller minorities. Post-conflict power-sharing arrangements, such as the one in Bosnia, are seeking to prevent the recurrence of armed conflict, frequently ignoring other groups and interests that have not been party to the original conflict or dispute. While their inclusion might not be required to prevent future conflict, the democratic quality of the arrangement suffers from the exclusion of such constituencies. B

Freezing or Resolving Self-determination in Bosnia?

The general observation regarding the Bosnian experience of power-sharing and post-war reconstruction applies to the country itself as well. While most observers of the peace process would agree that there has been some degree of improvement in terms of implementation and ‘normalization’ in recent years, most structural problems remain acute. The acceptance of the Bosnian state by two of its nations, namely Croats and Serbs, remains very low. In the first of half of 2003, a majority of Croats and Serbs opposed the current structure of the state. Among Serbs surveyed, 63.3% supported either the entity as an independent state or its accession to Yugoslavia. 41.9% of Croats favoured the creation of a third Croat entity (UNDP 2003: 27). Despite the wide-spread opposition of significant parts of the population to Bosnian statehood and its institutions, it would be simplistic to consider the attempt at defusing the self-determination dispute in Bosnia through complex power-sharing as a failure. As outlined in this chapter, some progress has been made in recent years. Particularly during the term of the moderate government between January 2001 and the general elections in October 2002, some of the

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power-sharing institutions functioned relatively effectively. However, every step to enhance the capacity of the joint state institutions, such as the creation of a joint border service or the discussions on the establishment of a joint army or a joint command, is met with fierce resistance by the dominant political forces of Croats and Serbs. The political leadership of the RS particularly resists any transfer of power to the joint level. But opposition to strengthening state institutions is only partly based on ethnic politics, i.e., the fear of marginalization and/or the project of ethnic self-government. Although the level of violence has decreased significantly since the end of the war, a number of incidents in 2001 confirm the danger of nationalist mobilization by political parties and organizations that see their own or their community’s interest threatened by political processes either aimed at dismantling parallel power-structures or at undoing some of the effects of ethnic cleansing. The riots in Banja Luka and Trebinje, as well as the organized resistance to the OHR and SFOR takeover of Hercegovačka Banka, the main financial centre of the HDZ, highlighted the ease with which violence can flare up. As a result 40.1% of the Bosnian population – distributed relatively equally across the three nations – fear the outbreak of a new war following the withdrawal of the international military presence (UNDP 2001: 33). Despite these fears, the trajectory of the peace process suggests that the gravest danger for Bosnia following the withdrawal of the international military and civilian presence is not so much the renewed outbreak of the war, but the breakdown of the political system and failure to implement sensitive areas of the accords, such as the return of refugees. The Bosnian powersharing system owes its lack of viability only to some degree to the unwillingness of the nationalist parties to engage in interethnic cooperation. The dysfunctionality of the institutions and a dependency on international financial and political intervention has seriously exacerbated the weakness of power-sharing arrangements in Bosnia. While the reform of the current power-sharing arrangement has been contemplated by both domestic and international actors, a comprehensive reform is unlikely, as it would neither muster the necessary domestic support required for constitutional changes, as stipulated in the constitution (DPA 1995: Art X), nor sufficient encouragement from the international actors to enter into renewed negotiations under international auspices, sometimes referred to as ‘Dayton 2’. As a consequence, the international presence seems likely to continue until new political elites emerge (despite the current system) that might be more ready to consider a thorough institutional reform. A key (or rather the only) incentive for such a process might prove to be European integration (Nowak 1999: 285289), as integration into European structures is not disputed by any of the three nations or their representatives.27 However, the possible integrative dynamic of 27

This was exemplified by the general support for the country’s accession to the Council of Europe in spring 2002. The conditionality of membership in international organizations, such as the creation of an integrated system of defence for accession to Partnership for Peace (PfP), has dampened support for integration into some international organizations, especially among the Bosnian Serb leadership.

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European integration has not yet been seized upon in Bosnia. In fact, divisive ethnic politics remain more frequently utilized by political elites than those that could contribute to reducing the interethnic divide.

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Chapter 8 Interim-governance for Kosovo: The Rambouillet Agreement and the Constitutional Framework Developed under UN Administration Marc Weller

Kosovo represents a unique example of international administration. Its initial phase, internationally-directed mediation, backed by the threat of the use of force, was meant to achieve a settlement for Kosovo that would balance the continued territorial integrity of Yugoslavia (Serbia and Montenegro) with substantial self-government for Kosovo. A draft settlement was generated at the 1999 Rambouillet Meeting, aiming to square that particular circle. The draft was eventually accepted by the political leadership of the mainly ethnic Albanian parties in Kosovo but it was rejected by Belgrade. Armed hostilities with NATO ensued. These were terminated under a compromise formula, which foresaw a UN-led interim administration that would bring the territory towards self-governance until such time as a definite settlement might be achieved. As this review will indicate, the Rambouillet text was highly complex indeed. It featured a very elaborate layering of public authority, involving what was then still known as the Federal Republic of Yugoslavia, one of its constituent republics (Serbia), Kosovo as an entity, local authorities, and even ethnic communities endowed with their own legal identity and some institutions. After the armed conflict, the international administration developed in three major phases. First, there was the immediate post-conflict environment, where UNMIK, the Security Council mandated UN presence in the territory, exercised full powers in relation to governance. During a far longer, second phase, UNMIK devolved authority to emerging Kosovo institutions and an attempt at co-governance was made. The third phase, which is still ongoing at the time of this writing, was focused on generating the right conditions for a final settlement and transferring the remaining, formerly reserved powers held by UNMIK to local institutions. Once a settlement has been achieved – if one is achieved – a fourth phase of transition is to be expected.

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 243-263

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I

Background

Kosovo is a territory occupying an area of some 10,887 square kilometres. According to a 1990 census, it featured a population of roughly 2 million inhabitants, of whom some 88% were estimated to be ethnic Albanians, 8% Serbs, and the remaining number divided among small groups of Turks, Vlachs, Goranies, Roma (Gypsies), and others. As a result of poverty and repression, during the 1990s between 300,000 and 400,000 ethnic Albanians left the territory, even before the hostilities and the dramatic Yugoslav campaign of forced displacement began in earnest in 1998/1999. After the conclusion of hostilities involving NATO in June 1999, over 100,000 ethnic Serbs left the territory; few of whom have returned as of yet. The Yugoslav Federal structure had been fundamentally revised in 1974, establishing a complex balancing of public powers among the republics and also the two autonomous provinces that were contained within Serbia: Kosovo and Vojvodina. The latter enjoyed a quasi-federal status. While their continued appurtenance to the republic of Serbia was confirmed, at the same time the two entities enjoyed all the substantive rights also granted to full republics under the 1974 SFRY constitution, including equal representation in the collective federal presidency. Like the republics, the autonomous provinces were entitled to a very wide measure of self-government, extending even to limited external affairs powers and the running of a central bank. The Tito design for Yugoslavia was therefore already one of power-sharing, combining self-government or autonomy of constituent entities with joint representation in collective federal organs. This was underpinned by a doctrine of ‘unity and brotherhood’, which was meant to reflect the equality of nations, nationalities, and minorities. The doctrine of nations and nationalities is one that has retained some relevance in the post-communist transition, as it still informs the thinking of some actors. Ethnic populations that do not possess a kin-state elsewhere (Serbia, Croatia, Montenegro, Macedonia, Bosnia, Slovenia) were perceived to be nations. They were entitled to full self-government through ‘their’ own republic and they enjoyed an express right to self-determination, to be exercised through the republics. Nationalities were other very large groups that did possess external kin states and could therefore be accommodated through autonomy (the ethnic Albanians of Kosovo and the ethnic Hungarians of Vojvodina). Finally, the smaller groups of Turks, Vlachs, Goranies, Roma, etc., were considered minorities – an odious term within this system, as it implied virtual disenfranchisement. The conflict in Kosovo progressed from a struggle for identity and control of political power within an autonomous province as part of a federal structure to a genuine self-determination conflict aiming towards secession. This transformation occurred in parallel with the attempts of Serbia, one of the six constituent republics of the Socialist Federal Republic of Yugoslavia, to gain political dominance within the Federation as a whole that commenced in the second half of the 1980s. While it still seemed possible to reform the Federation, Kosovo agitated

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for promotion to the status of a Republic. When the Federation dissolved in 1991, Kosovo declared itself independent. II

Rambouillet

Between 1991 and 1995, Kosovo enjoyed a period of uneasy calm. The Kosovo leadership had observed the violence of the conflicts that had raged in Croatia and Bosnia and Herzegovina and was unwilling to take similar risks in provoking armed action by the Yugoslav military and paramilitary forces. The situation changed when the Bosnian issue was settled late in 1995 with the adoption of the Dayton accords that followed upon the limited force by NATO in relation to Bosnian Serb forces. It then became clear that the Kosovo issue would not be addressed through similarly decisive measures. The moderate Kosovo leadership under Ibrahim Rugova that had built up a peaceful parallel administrative structure in the territory was increasingly sidelined by the KLA, an armed opposition movement that engaged in attacks against the Yugoslav infrastructure and was also accused of having engaged in acts of terrorism. Over the years that followed, these armed actions were answered by increasingly repressive operations by Belgrade. By 1998, these tactics appeared to resemble aspects of the conflict in Bosnia and Herzegovina, with increasingly large numbers of ethnic Albanians being forcibly displaced and a humanitarian emergency looming. From the summer of 1998 onwards, an attempt was made under the leadership of US mediator Chris Hill to achieve a political settlement, or interim political settlement, for Kosovo. A number of drafts were presented to the Yugoslav/Serb authorities and to a team of ethnic Albanian delegates, nominated by the unofficial government of Dr Ibrahim Rugova and headed by Dr Fehmi Agani. Yugoslavia took the view that the matter was one relating to the domestic jurisdiction of the SFRY. If a settlement with international involvement could be achieved at all, it would need to respect the territorial integrity of the SFRY. In fact, such an arrangement could only be concluded at the lower level of relations between Kosovo and the Serb republic (a principle maintained to the last and evidenced by the fact that the Yugoslav delegation at the Rambouillet and Paris talks was presented as a Serb delegation). While it would be possible to strengthen autonomy arrangements, this would need to be balanced by special rights of minority populations. Moreover, all of the ethnic groups in Kosovo should be treated principally equally, enjoying equal representation in political bodies. The Kosovo delegation took the view that it could accept an interim arrangement, so long as it did not prejudice its claim to self-determination and provided there would be a process allowing for the ultimate option of independence after the expiry of an agreed-upon interim period. While it was a strong advocate of equal human rights for all groups, it objected to special regimes for minority populations. Kosovo, in particular, was strongly opposed to the assignment of equal political representation of all ethnic groups in the territory, which would have given the 90% ethnic Albanians the same level of representation as each of the minority groups. It argued that in this way the overwhelming majority of

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ethnic Albanians would only control one voice out of six or seven, turning the majority into a minority in terms of representation. The Hill drafts that were produced slightly oscillated over time on the issues of the status of Kosovo. At one stage, the express reference to the right to territorial integrity of the FRY was dropped. On the other hand, there was never an affirmation of the right to self-determination for Kosovo. The question about the timeframe for the ‘interim’ agreement was left unaddressed. While there was provision for a ‘comprehensive assessment’ of the agreement after three years, any changes to the agreement would be subject to a veto of either party. Hence, the situation would have been effectively frozen in time forever. There was also the question of the precise nature of a mechanism to review the situation after the three-year period. In the Hill draft, ‘the sides’ would undertake the review, thus apparently removing the internationalized element of the negotiation process at the review stage. When the Holbrooke agreement collapsed in January 1999 in the wake of the Racak massacre, the Contact Group, acting with the support of the UN Security Council, summoned the parties to a conference (in fact, a ‘meeting’, to downplay expectations) where they were expected to reach an interim settlement within a period of two weeks at most. A

The Issue of Status and the Basic Distribution of Powers

Before the Rambouillet conference, the Contact Group had established a listing of so-called non-negotiable principles. These reflected the FRY/Serb demand that the territorial integrity of the FRY and its neighbouring countries had to be respected. The government of Kosovo had responded that it would be willing to attend the Rambouillet talks, provided a proposed settlement would not prejudice the status of Kosovo, in accordance with the approach that it had adopted in the initial Hill proposals. The first draft of the agreement presented to the Conference was in accordance with this idea of leaving out express statements concerning issues on which no agreement could be achieved. It contained, in what started out as the Draft Framework Agreement, merely a preambular paragraph that recalled the commitment of the international community to the sovereignty and territorial integrity of the FRY. Hence, in signing this text Kosovo itself would not have had to take an express view on this matter. The Agreement also made reference to United Nations and OSCE principles. As these contain both the rule of territorial unity and the principle of self-determination, this reference was also acceptable to Kosovo, while it provided reassurance to the FRY/Serbia. The Constitution (initially Annex 1) did not contain a preamble and, instead of addressing the status of Kosovo and the legal quality of its relations with the FRY or even Serbia, it focused on a reasonable division of competences. When the second draft of the agreement was presented on 18 February, a preamble had been added which referred to “democratic self-government in Kosovo grounded in respect for the territorial integrity and sovereignty of the Federal Republic of Yugoslavia, from which the authorities of governance set forth herein

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originate.” While the Contact Group attempted to assert that this was an insubstantial addition, it did in fact fundamentally change the nature of the entire interim settlement. To avoid a failure of the Rambouillet process on account of this unilateral change made without explanation two days before the deadline for signature, the following compromise was in the end adopted: Desiring through this interim Constitution to establish institutions of democratic selfgovernment in Kosovo grounded in respect for the territorial integrity and sovereignty of the Federal Republic of Yugoslavia and from this Agreement, from which authorities of governance set forth herein originate.

Even as amended, this provision almost led the Kosovo delegation to reject the agreement. Still, the formulation permitted Kosovo to argue that acceptance of the territorial integrity and sovereignty was limited to the interim period. In any event, this commitment and the legal personality and powers of Kosovo were rooted in the Agreement, rather than in a grant of autonomy by the FRY. Another important change that had been made in the draft of 18 February related to the assignment of powers. According to Article I(2) of the initial draft of what then was Annex 1, Kosovo as an entity would enjoy responsibility for “all areas” other than those where authority was expressly assigned to the FRY. Those areas of authority were enumerated exclusively and their exercise was subjected to important restrictions and safeguards for Kosovo. In the draft of 18 February, the express presumption in favour of Kosovar authority had been abandoned. Instead, a new paragraph had been added, indicating that Serbia, too, would exercise competence in relation to Kosovo as specified in the Agreement. The FRY/Serbia strongly insisted on the inclusion of a further provision in the introductory section of the Agreement (formerly the Framework Agreement), stating that the parties would only act within their powers and responsibilities in Kosovo as specified by this Agreement. Acts outside those powers and responsibilities would be null and void. Kosovo would have all rights and powers set forth in the Agreement, in particular as specified in the Constitution. While the FRY/Serb delegation might have intended this provision as a safeguard against creeping jurisdiction by the Kosovo organs, the delegation of Kosovo interpreted it as a helpful confirmation that the powers of Kosovo were indeed based in the Agreement, and not in a sovereign grant of rights by the FRY. In addition, this formulation supported the view that FRY/Serb exercises of powers in relation to Kosovo would be strictly limited to competences that have been expressly granted to them. 



A proposal to entitle Chapter 1 “Interim Constitution” was not adopted. However, given the overall title of the Agreement, the specific reference to the interim period in this preambular provision, and the concluding provisions, this was not seen by the Kosovo delegation as a significant setback. Federal functions were still expressly, and in the view of Kosovo, exhaustively listed: territorial integrity, maintaining a common market within the Federal Republic of

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The issue of legal personality for Kosovo as a whole was also clarified in some measure through a provision concerning the communes. One of the difficulties with the initial Hill proposal was its insistence that Kosovo communes be the basic unit of self-governance in Kosovo and that they exercise all authority not assigned to Kosovo and not assigned to other Kosovo organs. While the latter element was retained, it was clarified in what was to become Article I(8) of Chapter 1 of the final text that the communes were merely the basic unit of local self-government. The insertion of the word ‘local’ ensured that this provision no longer diluted the overall legal personality of Kosovo as a whole. B

The Kosovo Institutions and Their Powers

The principal organs of Kosovo according to the agreement were the Assembly, the President of Kosovo, the Government and Administrative Organs, judicial organs, and the communes. The Assembly was to be composed of 120 Members, of which 80 would be directly elected; the other 40 members would be elected by representatives of qualifying national communities. Communities whose members constitute more than 0.5% of the Kosovo population but less than 5% were to divide ten of these seats amongst themselves. Communities whose members constituted more than 5% of the Kosovo population (in fact, only the ethnic Albanians and Serb) would divide the remaining thirty seats equally. The draft of 18 February had introduced as an additional feature a second chamber of the Assembly as a result of FRY/Serb pressure. In that Chamber of 100 seats, the Turks, Goranies, Romanies, Egyptians, Muslims and any other group constituting more than 0.5 per cent of the population (hence also including the ethnic Albanians and Serbs) would be equally represented. The Chamber would have had the right of consultation in relation to legislative acts of the Assembly, and any of the groups represented within it could have initiated so-called vital interest motions, which would amount to an attempted veto of legislation. The FRY/Serb delegation itself abandoned the concept of the second chamber and instead focused on attempting to strengthen the veto power of national communities in the Assembly. According to the initial draft and the subsequent draft of 18 February, the decision as to which legislative acts would violate the vital interests of a national community, and would thus be null and void, would have been taken by the Constitutional Court of Kosovo. The Kosovo delegation had grave reservations about the very concept of special powers for ethnic groups, including separate elections according to ethnic criteria. While strongly endorsing the notion of equal rights for members of all ethnic groups, the idea of separate representation appeared to grant to very small groups broad rights of co-decision,

 

Yugoslavia, monetary policy, defence, foreign policy, customs services, federal taxation, federal elections, and other areas specified in this agreement. See also Article VIII(5) of Chapter 1, and the important reference contained therein to Article II(5)(b) of Chapter 1. On the national communities and their institutions, see the following section.

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which were unrepresentative and hence undemocratic. Moreover, the example of ethnic politics in Bosnia and Herzegovina had demonstrated the divisive nature of a political system organized along ethnic lines. Finally, a legislative system that was subjected to the constant threat of veto by any ethnic group would result in perennial paralysis. Despite these concerns, and in view of the strong position of the FRY/Serbia in this matter, the Kosovo delegation endorsed, albeit reluctantly, the concept of special representation for ethnic groups for the interim period. However, this concession was dependent on a judicial process to check vital national interest motions in the Assembly in order to avoid an arbitrary use of this procedure leading to constant deadlock in the legislature. The Contact Group disregarded this view and gave way to a Serb/FRY proposal of settling disputes about vital national interest motions outside of the judicial system. According to Article II(8)(c) of Chapter 1, the final agreement provided that the decision about such motions would be rendered by a panel comprising three members of the Assembly: one Albanian and one Serb – each appointed by his or her national community – and a third Member of a third “nationality” to be selected within two days by consensus of the Presidency of the Assembly. As the Serb national community was guaranteed a member of the Presidency of the Assembly, it appears that this nominating process itself could be blocked by a factual veto. Decisions of the Assembly that had been challenged according to the vital national interest procedure were to be suspended in response to the national community having brought the challenge, pending completion of the dispute settlement procedure. Hence, it might appear as if a Serb veto in relation to Assembly decisions was introduced through the back door. However, as this veto would depend on an abuse of process in frustrating the nomination of the third member of the arbitration panel, the general dispute settlement mechanism attaching to the agreement as a whole, or the general powers of the Constitutional Court, would probably be brought to bear on a matter of this kind. It should also be noted that the decision on the merits of a vital interest motion, while conduced by a political body, was to be made according to legal criteria. The substantive powers of the Assembly were reasonably wide, covering most aspects of governance. Importantly, this included the power to set the framework of, and to coordinate, the exercise of competences assigned to the communes. The first elections in Kosovo were to be held within nine months of the entry into force of the Agreement under international supervision. The President of Kosovo was to be elected by the Assembly by a majority vote. His or her functions included representation before international, FRY, or republic bodies, the conduct of foreign relations consistent with the authorities of Kosovo institutions, proposing candidates to the Assembly for Prime Minister and for the principal courts of Kosovo, etc. The government, also to be ap

A vital interest motion shall be upheld if the legislation challenged adversely affects the community’s fundamental rights as set forth in Article VII, or the principle of fair treatment.

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proved by the Assembly, would have general authority for implementing the laws of Kosovo, etc. At least one minister would have been a member of the Serb national community. The powers reserved for the communes had been narrowed down somewhat in comparison with earlier drafts. However, while there was provision for coordination on a Kosovo-wide basis, the police was to be organized on a communal basis and limited to a ceiling of 3,000 active law-enforcement officers throughout Kosovo. In addition, there was authority in relation to education, child care, the communal environment, local economic issues, etc. The judiciary consisted of a Constitutional Court composed of nine judges. At least one judge would have been a member of the Serb national community and five other judges would have been selected from a list drawn up by the President of the European Court of Human Rights. The powers of review of the Constitutional Court were quite wide. They included, but were not limited to, determining whether laws applicable in Kosovo, decisions or acts of the president, the Assembly, the government, the communes, and the national communities were compatible with the Constitution. The Supreme Court, composed of nine judges, including one member of the Serb national community, would hear final appeals from subordinated courts in Kosovo, including communal courts. A special feature related to the rights of citizens in Kosovo is the option to have civil disputes partly adjudicated by other courts in the FRY, which would apply laws applicable in Kosovo. In criminal cases, a defendant would be entitled to have a trial transferred to another Kosovar court designated by him or her. In effect, this meant that a defendant could opt to be tried in the local court of a specific commune, which would be principally composed of members of his or her ethnic appurtenance. In criminal cases in which all defendants and victims were members of the same national community, all members of the judicial council would be from the national community of their choice if any party so requested. A defendant in a criminal case could also insist that one member of the judicial council hearing the case be from his or her national community. This might include judges of courts in the FRY serving as Kosovo judges for these purposes. C

Human Rights and Additional Rights of National Communities

The provisions on human rights were strangely short and undeveloped in the Constitution and throughout the Agreement. There was no listing of fundamental human rights to be applied in Kosovo. Instead, Article VI(1) of the Constitution stated rather generally that all authorities in Kosovo must ensure internationally recognized human rights and fundamental freedoms. As opposed to the Dayton agreement, which included a long list of human rights instruments identifying what internationally recognized human rights and fundamental freedoms are, the agreement in Article VI(2) rather ingeniously incorporated by reference the terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, which “shall apply directly in Kosovo.”

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In this way, a very sophisticated body of human rights law, refined in decades of jurisprudence by the European Court and Commission of Human Rights, would have been instantly available in Kosovo. The Kosovo Assembly also had the power to enact other internationally recognized human rights instruments into law. The rights and freedoms established in this way would have priority over all other law. Interestingly, all “courts, agencies, governmental institutions, and other public institutions of Kosovo or operating in relation to Kosovo shall conform to these human rights and fundamental freedoms” (Article VI(3)). This means that FRY and republic authorities would also have had to exercise their competences in relation to Kosovo and in accordance with these standards. As the FRY was not a party to the European Convention and its Protocols, this would have placed it in an unusual position. While the human rights provisions were compact, the additional rights granted to national communities were extensive, but not unlimited. Firstly, these rights were tied to the specific purpose of preserving and expressing their respective national, cultural, religious, and linguistic identities. This was to be done in accordance with international standards and in accordance with human rights and fundamental freedoms. More controversially, each national community could elect and establish its own institutions – a feature which was feared would give rise to a parallel state structure within Kosovo. However, national community institutions would have to act in accordance with Kosovar law and not take discriminatory action. National communities could arrange for the inscription of the local names of towns and villages, etc., in the language and alphabet of the respective community; issue information in that language; provide for education and schooling in that language and in national culture and history, reflecting a spirit of tolerance between communities and respect for the rights of members of all national communities; display national symbols, including those of the FRY and Serbia; protect national traditions on family law; arrange for the preservation of sites of religious, historical, or cultural importance in cooperation with other authorities; implement public health and social services on a non-discriminatory basis; operate religious institutions in cooperation with religious authorities; and participate in nongovernmental organizations. National communities could also enjoy unhindered contacts with representatives of their respective national communities within the FRY and abroad. They must be guaranteed access to and representation in the media and may finance their activities by collecting contributions from their members. Importantly, every person has the right freely to choose to be treated or not to be treated as belonging to a national community. D

Final Status

The draft presented to the parties at the outset of the Conference restated the concluding provision from previous Hill proposals providing for amendments to the Agreement to be adopted by consensus of all the parties. Each party was to

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be entitled to propose such amendments at any time. However, after three years, a comprehensive assessment of the Agreement would occur under international auspices with the aim of improving its implementation and determining whether or not to implement proposals by either side for additional steps. The means of undertaking this assessment and the procedure to be adopted were left unclear. The Kosovo delegation argued strongly that, in accordance with the interim character of the agreement, a provision would need to be made for a further international conference on a final settlement for Kosovo. The decisions of that conference should be based on the will of the people of Kosovo, made manifest in a referendum. The negotiators pointed out that they were not authorized by the Contact Group to adopt language on a referendum. However, even the non-negotiable principles had at least provided for “a mechanism for a final settlement after an interim period of three years.” In the dramatic final phase of the conference, it became possible to obtain significant changes to the final provision, in reflection of this wording. The final text of what became Article I(3) or Chapter 8 reads: Three years after the entry into force of this agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, each Party’s efforts regarding the implementation of this Agreement, and the Helsinki Final Act, and to undertake a comprehensive assessment of the implementation of this Agreement and to consider proposals by any Party for additional measures.

This wording stops short of actually establishing a mechanism for a final settlement, contrary to what might have been expected in view of the language contained in the non-negotiable principles. However, startlingly, it was accepted that this mechanism shall be established and/or operate, inter alia, on the basis of the will of the people. On the other hand, this mechanism would be created by “an international meeting,” the composition, remit and authority of which was not defined. All organs of the international community had consistently ruled out the possibility of independence and it would not be surprising if the “international meeting” might hold a similar view. These uncertainties were not necessarily entirely removed by the unilateral interpretation offered by the US in a draft sideletter which confirmed that Kosovo could hold a referendum on independence 



This formulation actually represented a slight retreat from the final Hill draft, put forward on 27 January, which had referred to a ‘procedure’ for considering such addition steps to be determined taking into account the parties’ roles in and compliance with this agreement. In a dramatic night negotiating session towards the very end of the conference, the Kosovo delegation was able to extract from the negotiators an even better formulation, referring to the ‘expressed will of the people’. However, this concession was lost when the delegation was not immediately able to sign the final text and when the Contact Group overruled it afterwards.

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after three years. In any event, that side-letter was in the end not formalized, given the failure of the Kosovo delegation to sign the agreement by the stipulated deadline at Rambouillet. E

Implementation

The provisions for implementation contained in the Rambouillet text were complex and distributed throughout the interim agreement. They consisted principally of the introductory section of the Agreement entitled Framework; Chapter 2 on Police and Public Security; Chapter 3 on the Conduct and Supervision of Elections; Chapter 4(a) on Humanitarian Assistance, Reconstruction and Development; Chapter 5 on the Civilian Implementation Mission in Kosovo; Chapter 6 concerning the Ombudsman; and Chapter 7 on ‘Implementation II’, that is to say, military implementation. For reasons of space, it will only be possible to review some of the principle features of this implementation structure here. F

Confidence-building

Upon signature of the agreement, a ceasefire was to come into force immediately. Alleged violations of the ceasefire were to be reported to international observers and could not be used to justify use of force in response. The status of police and security forces in Kosovo, including withdrawal of forces, was to be achieved according to Chapter 7. Paramilitary and irregular forces in Kosovo were deemed incompatible with the terms of the agreement. The latter provision gave rise to some difficulty, inasmuch as the KLA did not consider itself a paramilitary or irregular force. However, it was clear that it, too, was addressed through Chapter 7 of the agreement. All abducted persons or other persons detained without charge were to be released, including persons held in connection with the conflict in Kosovo. No one was to be prosecuted for crimes related to the conflict, except for persons accused of having committed serious violations of international humanitarian law. Persons already convicted for committing politically motivated crimes related to the conflict were to be released, provided these convictions did not relate to serious violations of humanitarian law obtained in a fair and open trial conducted pursuant to international standards. The agreement confirmed the obligation, already contained in mandatory Security Council resolutions, to cooperate with the Hague International Criminal Tribunal for the Former Yugoslavia. This included the obligation to permit complete access to tribunal investigators and compliance with the orders of the Tribunal. This provision was somewhat contested at Rambouillet. Kosovo attempted to strengthen its scope, as did, indirectly, the Tribunal itself. However, in the face of determined opposition from the FRY, a rather short paragraph was adopted, which did not greatly improve upon the obligations already contained in the demands of the Security Council.

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The parties also recognized the right to the return of all persons to their homes, including those who have had to leave the region. There was to be no impediment to the normal flow of goods into Kosovo, including materials for the reconstruction of homes and structures. The FRY would not require visas, customs, or licensing for persons or things connected with international implementation. G

NATO-led Implementation and the Withdrawal of Forces

The military implementation chapter was the most detailed element of the entire accords. The parties would have agreed that NATO would establish and deploy a force (KFOR) operating under the authority and subject to the direction and the political control of the North Atlantic Council (NAC) through the NATO chain of command. However, contrary to much speculation afterwards, a Chapter VII mandate was to be obtained from the Security Council from the beginning. Other states would be invited to assist in military implementation. While this is not spelt out, it was envisaged that KFOR would be of a strength of approximately 28,000 troops. This would include a sizeable Russian contingent, according to the precedent set by SFOR/IFOR in Bosnia and Herzegovina. In accordance with that precedent, KFOR would be authorized to take such actions as required, including the use of necessary force, to ensure compliance with Chapter 7. As opposed to the arrangements of Dayton, it was made clear at the beginning that KFOR would not only be available to ensure compliance with the military aspects of the agreement, but that it would also actively support civilian implementation by the OSCE and others as part of its original mandate. As in the Dayton agreement, the mandate of KFOR could have been broadened through further action by NATO – in this instance acting through the North Atlantic Council. A Joint Implementation Commission would have been established to consider complaints by the parties and other matters. It would have been composed of FRY military commanders and FRY/Serb officials, Kosovo representatives, and representatives of the military and civilian implementation missions. The agreement envisaged that final authority to interpret the provisions of Chapter 7 would rest with the KFOR military commander. The regular armed forces of the FRY (VJ) would have been subjected to a rigourous regime of redeployment and withdrawal according to fixed deadlines. This included the removal of assets such as battle tanks, all armoured vehicles mounting weapons greater than 12.7mm and all heavy weapons of over 82mm. Within 180 days of the coming into force of the agreement, all VJ units, other than 1,500 members of a lightly-armed border guard battalion deployed close to the border would have had to be withdrawn from Kosovo. An additional 1,000 support personnel would be permitted in specified cantonment sites. The border guards would have been limited to patrolling the border zone and their travel through Kosovo would have been subjected to significant restrictions. Moreover, the air defence system in Kosovo would be dismantled and associated forces withdrawn, as would other FRY or Serb forces, including the Ministry of Interior Police (MUP). The MUP would initially be drawn down to a size of 2,500 and be

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entirely withdrawn upon the establishment of a Kosovo police force within one year. Upon entry into force of the Agreement, all other forces would have had to commit themselves to demilitarization, renunciation of violence, to guaranteed security of international personnel, etc. The definition of the term ‘demilitarization’ has been subject to some discussion, especially as it applies to the KLA. It would have included the surrender of heavy armaments and some small arms. The military chapter was accompanied by two appendices, which were both published along with the agreement. The rather extravagant claims that they reveal a secret agenda by NATO for the virtual occupation of all of Yugoslavia made some time after the conclusion of the conference are entirely without substance. Appendix A established cantonment sites for FRY/Serb forces. The famous Appendix B established what in other contexts would be the standard terms of a status of forces agreement for KFOR, very much in line with the precedent of IFOR/SFOR in Bosnia and Herzegovina and United Nations peacekeeping operations. A provision that permits transit through Yugoslavia for NATO and affiliated forces falls within these standard terms, although it may have been phrased slightly more broadly than would have been usual. If, as was subsequently claimed, the terms of the Appendix, or this particular provision, were the reasons that rendered Rambouillet unacceptable, it remains to be explained why the FRY did not seek clarification or even modification of this provision at the Paris follow-up conference. That conference was exclusively dedicated to negotiations on the implementation aspects of the agreement, which had not been available at Rambouillet itself. H

Civilian Implementation

The OSCE would have been charged with principal responsibility over the civilian elements of implementation, operating under a Chief of the Implementation Mission (CIM). The implementation mission would monitor, observe, and inspect law enforcement activities in Kosovo, which would be established principally at communal level. The Kosovo police force of around 3,000 was to be only lightly armed. The authority of federal and Serb police would have been very significantly restricted. Importantly, the CIM would have had final authority to interpret the provisions of the agreement in relation to civilian implementation. All aspects of civilian implementation would have been coordinated and monitored by a Joint Commission, including Federal, Republic, and Kosovo representatives and others, and chaired by the CIM exercising a final right of decision in this rather powerful body. In addition, an ombudsman would monitor the realization of the rights of members of national communities and the protection of human rights and fundamental freedoms. Elections were to be held at communal and Kosovo level within a period of nine months from entry into force of the agreement, once the OSCE certified that conditions had been established for a free and fair ballot. Finally, the agreement provided for the administration of humanitarian aid and reconstruction, principally through the organs of Kosovo, with strong involvement by the European Union. In fact, throughout the confer-

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ence, the European Union, through its negotiator and through representatives of the Commission, exercised considerable influence, especially in relation to this issue. Great emphasis was placed on careful planning, rapid and unbureaucratic deployment of resources once needs had been identified, and close cooperation with the beneficiaries of such aid. III Resolution 1244 (1999), UN Administration and the Constitutional Framework A

The Remit of Resolution 1244 (1999)

Security Council Resolution 1244 (1999) was adopted on 10 June 1999 by fourteen votes to none (China abstaining). The entire text of the resolution is subject to Chapter VII of the United Nations Charter. Preambular paragraph 10 reaffirms the commitment of all UN member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other states of the region. In its very first operative paragraph, it addresses the issue of a political settlement, “deciding” that a political solution to the Kosovo crisis shall be based on general principles established in two annexes to the resolution. In addition, the Council authorized the deployment under UN auspices of “international civil and security presences.” The civil presence was to be “controlled” by a Special Representative of the UN Secretary-General. While the military presence established by “member states and relevant international organizations” was to coordinate closely with the civil presence, it is not subject to control by the Secretariat. It enjoys a mandate to enforce the ceasefire, deter hostilities, ensure withdrawals, and prevent the return of certain forces. It is also empowered to demilitarize the KLA; ensure public safety and order in the interim; conduct border monitoring; ensure freedom of movement for itself, the civil presence, and other international organizations; and support, as appropriate, the civil presence. The civil presence is charged with: a. Promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo, taking full account of annex 2 of the Rambouillet accords (S/1999/648); b. Performing basic civilian administrative functions where and as long as required; c. Organizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections; d. Transferring, as these institutions are established, its administrative responsibilities while overseeing and supporting the consolidation of Kosovo’s local provisional institutions and other peace-building activities; e. Facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords (S/1999/648); f. In the final state, overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement;

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g.

Supporting the reconstruction of key infrastructure and other reconstruction; h. Supporting, in coordination with international humanitarian organizations, humanitarian and disaster relief aid; i. Maintaining civil law and order, including establishing local police forces, and, meanwhile, through the deployment of international police personnel to serve in Kosovo; j. Protecting and promoting human rights; and k. Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo. Annex I, to which reference is made, consists of the Petersberg G-8 declaration of 6 May 1999, which effectively contained the peace terms that Yugoslavia was invited to accept before a termination of hostilities with NATO could take place. That document refers to an interim administration of Kosovo to be decided by the Security Council and “a political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region and the demilitarization of the KLA.” Annex 2 consists of a ten point statement presented to the FRY on 2 June 1999 and expressly accepted by it as part of the cease-fire negotiations. It provides for: … 5.

… 8.

B

Establishment of an interim administration for Kosovo as part of the international civil presence under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, to be decided by the Security Council of the United Nations. The interim administration is to provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo. A political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of the UCK. Negotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions.

Interim Administrative Practices

While there was initially some confusion as to the precise extent of the mandate and to the progression of events foreseen in the three different instruments to

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which reference has been made, in practice, a fairly smooth development has occurred. During the first phase of governing under UNSRSG Bernard Kouchner, participation of local actors was limited to a consultative role. In a second phase, provision was made for limited co-decision, when, early in 2000, the UN administration established a Joint Interim Administrative Structure (JIAS). This consisted of the establishment of some twenty departments with responsibility for civil administration. These departments were jointly headed by one local and one international official. This was matched by the holding of municipal elections and the establishment of local structures of self-government at the end of 2000. A third phase provided for conditional self-government, to be realized under the terms of the constitutional framework that was put forward in 2001. C

Constitutional Framework

1 Origin and Establishment The Constitutional Framework for Provisional Self-Government was issued on 15 May as UNMIK regulation 2001/9. That is to say, its legal force is rooted in Regulation 1999/1 (subsequently amended), which vests supreme executive powers and also quasi-legislative powers in the SRSG. This power is, in turn, derived from the mandate contained in Security Council Resolution 1244 (1999). The drafting of the document had caused some friction among the Western members of the Contact Group (the quint) throughout 2000. The United States attempted to present a draft instrument that was very much based on Rambouillet, although the powers for Serbia/FRY had been significantly reduced in view of the recent conflict and its outcome. Others argued that it would be premature to offer any sort of consolidated interim constitution, which would accelerate the process of claims for statehood on the part of the Kosovo majority parties. Instead, individual regulations that would, over time and in stages, address issues normally contained in a constitutional document should be issued. The debate took a different turn with the appointment of a new SRSG, former Danish Minister of Defence Hans Haekkerup. With amazing expedition and the encouragement of a Presidential Statement of the Security Council, a consultative body of experts was established to draft a framework document (at the time, the use of the word ‘constitution’ was not accepted). This body was intended to be fully representative, but was generally boycotted by its Serb representatives. Some of the ethnic Albanian experts also resigned towards the end of the drafting process, when it emerged that the draft texts they had submitted would not be taken as the basis for the venture. Overall, therefore, the text that emerged showed a strong hand of internationalized drafting, through the UN’s own legal advisor’s office and other international experts, especially including an expert of the Venice Commission. Nevertheless, the ethnic Albanian experts did have influence on the shaping of the document, which eased the process that led all major ethnic Albanian political parties to embrace the document (although with hesitations) as an acceptable interim solution. At the very end of the drafting, an effort was also made to take account of the positions of the Serb leadership and

8  Interim-governance for Kosovo: The Rambouillet Agreement and the Constitutional Framework

to incorporate at least some of them, despite the continued failure to participate formally in the drafting process. Overall, therefore, an instrument emerged that fulfilled the functions of a constitution for a considerable period to the end of 2007. There was no democratically legitimized constitutional drafting process, say, through a constitutional convention. Instead, the document was internationally established with the involvement (or, in the case of the Serb community, with the possible involvement) of experts. Some of these experts were in fact affiliated with the principal political parties in Kosovo. Hence, local ‘ownership’ of the drafting process was fairly limited. On the part of the ethnic Albanian parties, it was possible, at least for the moment, to avoid the appearance of ‘spoilers’. Instead of attacking the document, they declared it flawed but acceptable and focused on the upcoming election campaign in order to attempt to fill some of the positions of political power foreseen in the document. The Serb National Council had rejected the instrument and remained a spoiler in the establishment of the intended power-sharing arrangement. However, a large number of ethnic Serbs were registered for the Kosovo-wide elections (in stark contrast to the local elections of the preceding year). Hence, the Serb political leadership retained the option to participate in the system or to attempt to opt out of it and instead to exclude elections from areas mainly inhabited by ethnic Serbs. 2 Status, Structure, and the Layering of Public Authority Kosovo is defined in Article 1.1. as an entity under interim international administration that, because of its people, has unique historical, legal, cultural, and linguistic attributes. This clause appears to acknowledge that Kosovo is an entity that has ‘a people’. If so, then the preambular paragraph – which refers to provisional self-government as a step for a peaceful and normal life for all inhabitants of Kosovo, with a view to facilitating the determination of Kosovo’s future status through a process at an appropriate future stage that shall, in accordance with UNSCR 1244 (1999), take full account of all relevant factors “including the will of the people” – takes on an interesting meaning. The two combined could give rise to the view that Kosovo is a self-determination unit. On the other hand, the entire text is of course subjected to the superior authority of Resolution 1244 (1999). There exists an institutional and a functional layering of authority. The institutional layers of authority are arranged in a comparatively simple way. There are municipalities, the Kosovo-wide layers of provisional self-government, and the SRSG. Municipalities are the basic territorial units of local self-government, exercising responsibilities as set forth in UNMIK legislation in force. Hence, as opposed to the Hill draft, the municipalities are no longer the residual source of all public authority not expressly assigned elsewhere. The Framework also refers to communities and their members. However, as opposed to the Rambouillet draft, there is emphatically no provision for parallel institutions for communities. Instead, these are now defined in terms of traditional minority rights. That is to say “communities of inhabitants belonging to the same ethnic or religious or linguistic group (communities) shall have the rights

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set forth in this Chapter in order to preserve, protect and express their ethnic, cultural and religious identities.” To this end, they can use their own language, receive education and have access to information in that language, as well as enjoy equal opportunities, etc. They can also establish associations to promote their community interests and culture and to operate educational institutions. However, the communities are not equipped with institutions that exercise original state powers almost by way of full functional autonomy. Hence, this layer of public authority that was a crucial element of Rambouillet has simply disappeared. The Kosovo-wide institutions enjoy powers that are specifically enumerated in the Framework. These functions extend to most aspects of public policy. These institutions also have the power to coordinate and supervise the exercise of public powers by the municipalities. This fact, together with the finding in Article 1.1. that “Kosovo is an undivided territory throughout which the Provisional Institutions of Self-Government established by this Constitutional Framework … shall exercise their responsibilities,” clearly subordinates the municipalities to the Kosovo-wide institutions. Hence, there is no original autonomy located within the municipalities, other than specific power of municipal governance assigned in legislation. A third institutional layer consists of the SRSG, who exercises certain ‘reserved powers and responsibilities’ that remain exclusively in his hands: • Full authority to ensure that the rights and interests of Communities are fully protected; • Final authority to set financial and policy parameters and approval of the Kosovo Consolidated Budget and its auditing; • Dissolving the Assembly and calling for elections, especially when other institutions have acted in violation of Resolution 1244 (1999); • Monetary policy; • Control of the customs service; • Appointment, removal, and disciplining of judges and prosecutors; • Assignments of international judges and prosecutors and changes of venue of trials; • International legal cooperation, conclusion, and implementation of international agreements, and exercise of foreign affairs powers; • Authority over law enforcement institutions and correctional facilities; • Control over the Kosovo Protection Corps; • Etc. While the chapeau to this provision does suggest that these are exclusive powers, several provisions do in fact provide for the exercise of administrative authority in relation to them ‘in cooperation’ with the Kosovo institutions. Hence, it was expected that some of this residual authority would be exercised by the Kosovo institutions, up to the point when the SRSG saw a need to intervene. In relation to other functions that are indeed formally exclusive, there is room for consultation and advice before decisions are made. However, the principle of unchallengeable supreme powers in relation to these issue areas must be noted. Moreover, accord-

8  Interim-governance for Kosovo: The Rambouillet Agreement and the Constitutional Framework

ing to a concluding provision of the Regulation, the SRSG retained a general right to oversee the provisional institutions and its officers and to take appropriate measures whenever their actions are inconsistent with Resolution 1244 (1999) or the Framework. The unique character of the SRSG’s role was also evident in the fact that he could ‘effect’ changes to the constitutional framework either at the initiative of a two-thirds majority of the Assembly, or at his own discretion,. This provision does, of course, cast some doubt on the character of the instrument as a ‘constitution’ and instead confirms its sui generis character. 3 Veto-mechanisms and Guaranteed Representation The Kosovo Assembly, the principal legislative organ of provisional self-government, consists of 120 members elected by secret ballot in a nationwide, singledistrict vote. 100 of the seats are assigned proportionally to the votes cast for parties, citizens initiatives (according to a fixed list system), or individual candidates. Additionally, twenty seats are reserved for ‘the additional representation of nonAlbanian Kosovo communities.’ Ten of these fall to those declaring themselves respresentatives of the Kosovo Serb Community; the others are divided amongst the Roma, Ashkali, Egyptian, Bosniak, Turkish, and Gorani communities. The seven-member Presidency of the Assembly must contain one member representing the Serb community and one member representing another minority community. However, there is no rotating presidency. Instead the president is nominated by the party having achieved the highest number of votes. There is no provision for representation of other groups through, for instance, offices of vice presidents. The presidency, which manages parliamentary business, is invited to attempt to agree by consensus, but failing that decides by majority vote. There is also no specific quota for representation in function committees, other than the general exhortation that the membership shall reflect the diversity of the membership of the Assembly. Chairs and vice chairs of committees are appointed according to strength of parties in the Assembly. A Committee of the Rights and Interests of Communities does exist, however, consisting of two members from each of the communities represented in the Assembly (but only one Gorani representative). The Committee can adopt a recommendation in relation to draft legislation or other matters by simple majority. Decisions of the Assembly are adopted by simple majority of members present and voting (the quorum being 50% for decisions and 33% for debates). Within forty-eight hours of approval of a law, any six members may submit a motion to the presidency alleging a violation of vital interests of the community to which at least one of them belongs. A motion may be made on grounds that the law or provisions discriminate against a community, adversely affect the rights of the community or otherwise seriously interfere with the ability of the community to preserve, protect, or express its identity. An attempt at conciliation will be made by the presidency, which is to attempt to put forward a consensus proposal. If that is not possible, a panel consisting of one member of the majority, one representative of the complainants and one

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presiding individual appointed by the SRSG are to issue a recommended decision by simple majority. However, the Assembly remains at liberty to decide to accept or reject the consensus proposal of the presidency or the recommendation of the panel. An Assembly decision can be reviewed for compatibility with the Constitutional Framework by a special chamber of the Supreme Court. Overall, therefore, there exists no effective blocking mechanism in the Constitutional Framework. There is also only limited provision for representation of minority groups. While it is confirmed that judges, the police, and other public officials shall be fully reflective of the diversity of the population, there is no rigid quota system as part of the Constitutional Framework (implementing legislation may be different). The only concession to quota rules and minority representation is the determination that out of nine ministries that are to be established after the election, two shall be headed by minority representatives, one of them composed of ethnic Serbs. IV Preparations for a Final Status UNMIK remained very much involved in the international administration of Kosovo during the period that followed the adoption of the constitutional framework. As was foreseen, the JIAS was replaced by the Provisional Institutions of Self-government (PISG). These were essentially ministries. The assignment of the ministries to the Kosovo parties proved difficult. In the end, the SRSG mediated a ministerial power-sharing agreement between all parties, including minority communities. This meant in practice that there was no parliamentary opposition, as all ethnic majority parties were represented in the government. This practice was only terminated after a further round of elections, resulting in a coalition government formed between the AAK and the LDK parties, leaving the PDK and the smaller Ora party in opposition. As before, though, minority communities were represented in government according to a power-sharing formula. However, after a series of destructive anti-Serb riots in March 2004, the official Serb parties in parliament withdrew cooperation from the political processes, although ministerial posts remained occupied. As a result of the 2004 riots, a greater impetus towards a final settlement was generated. Nominally, a policy of ‘standards before status’ was maintained, which would have conditioned the commencement of status talks on the fulfillment by the Kosovo authorities of standards of good governance and community relations. In reality, the dynamics of the situation made a further delay of status talks impossible, even if achievements in governance were somewhat uneven. In 2006, a process of direct negotiations mediated by former President Ahtisaari of Finland acting under a UN mandate commenced. A Framework for a Comprehensive Settlement for Kosovo emerged from these discussions. However, Belgrade was unwilling to accept this design, which essentially foresaw an independent Kosovo, remaining for some time under partial international administration. New negotiations were demanded by Russia and Serbia.

8  Interim-governance for Kosovo: The Rambouillet Agreement and the Constitutional Framework

V

Conclusion

Kosovo has gone through an interesting permutation of constitutional designs, from a (barely) autonomous territory within Serbia to a quasi-federal entity in the 1974 SFRY system. Indeed, it gave itself an independent state constitution at one stage in 1991. Afterwards, the Hill drafts, but in the most pronounced way the Rambouillet agreement, provided for an ever-more complex fractionating of public power in Kosovo. This was overcome to a considerable extent in the Constitutional Framework that was established for an interim period. This instrument was principally generated by United Nations and other international drafters although with input from experts representing the majority population. Its authority is based in powers derived from a Chapter VII Security Council resolution. Residual authority remained with the SRSG to a considerable extent, although much governmental authority, including towards the end so-called reserve powers, were progressively transferred to local authorities. Power-sharing between the ethnic communities was not supported by a very strong institutional framework, probably as a result of the Bosnian experience. This resulted in a withdrawal of ethnic Serb populations to virtual autonomy exercised through the municipalities. While in principle local powers were subject to control and coordination by the Kosovo-wide institutions, this power proved difficult to exercise in practice, given the lack of effective control of the central government in community enclaves, especially Northern Mitrovica. Overall, the case of Kosovo is a difficult one to assess in terms of the performance of power-sharing arrangements. With hindsight, it is probably clear that the Rambouillet accords would have imposed an essentially unworkable constitutional setup upon Kosovo, given the excessive allocation of powers at the local level, blocking powers, and other consociationalist mechanisms operating in parallel. The constitutional framework avoided these pitfalls. However, it did not engender governance in a conventional sense. The Serb-held ministry tended to be isolated and politically irrelevant. The Serb community and especially the smaller minorities could not assert themselves through their representation in parliament. The ethnic Albanian parties found it difficult, at least in the early phases, to forge a consensus on legislative action in the Assembly, leaving much of the legislative work to EU and UNMIK experts. However, towards the end of the interim period, performance improved markedly. Similarly, the transfer of powers from UNMIK to local ministries removed the tendency to blame only the international administration for all ills befalling Kosovo and instead impelled the local political parties to accept more responsibility for their own conduct. The security situation of ethnic Serb populations improved somewhat. However, there was no sign of a beginning of any genuine integration at that time. Instead, the prospect of the forthcoming status discussion reinforced the tendency of most political actors to retain the status quo in terms of ethnic relations and governance in general.

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Chapter 9 Power-sharing in Macedonia? Farimah Daftary and Eben Friedman

Since its independence, representatives of Albanian parties have shared power with Macedonians. That is part of the general political consensus in the country … Certainly it would be hard to find a serious analyst who maintains there is a minority in the region that enjoys greater rights and more prosperity than Albanians in Macedonia. Branko Geroski, Editor-in-Chief, Dnevnik, Skopje (IWPR 2001a).

[T]he fact remains the [NLA] militants have exposed the weaknesses in Macedonia’s concept of multi-ethnic democracy – a concept built for at least a decade on the principle of one community’s, the Macedonian majority’s, dominance over another, the Albanians. Kim Mehmeti, Director, Centre for Multi-cultural Understanding and Cooperation (CMUC), Skopje (IWPR 2001b).

I

Introduction

Until early in 2001, the ‘former Yugoslav Republic of Macedonia’ (hereafter ‘Macedonia’) represented an apparently successful model of preventive diplomacy, and had been commended by the Organization for Security and Co-operation in Europe (OSCE) and other international organizations for its commitment to reforms designed to enhance political stability and economic prosperity. Indeed, despite predictions that conflict would spill over into this multiethnic state surrounded by hostile neighbours when it declared independence in September 1991, Macedonia has fared relatively well. From the drafting of its Constitution onward, the young republic sought to develop a legal framework for the protec



Although it seceded from Yugoslavia in 1991, Macedonia was not admitted to the United Nations until 1993, and then only under the provisional name ‘former Yugoslav Republic of Macedonia.’ The country’s constitutional name is ‘Republic of Macedonia.’ See, for example, OSCE 1999b.

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 265-305

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tion of its minorities (which represent roughly a third of its population) while embarking upon a difficult period of democratic transformation and economic transition. The preventive activities of numerous international and domestic actors (including the United Nations (UN), the OSCE and numerous nongovernmental organizations (Anderson 1999)) combined with the moderate approach of domestic political leaders to make Macedonia a beacon of stability in a region beset by conflict. Macedonia even withstood the immediate impact of the Kosovo conflict in 1999, which resulted in a huge influx of ethnic Albanian (and later Roma) refugees, who threatened to disrupt Macedonia’s fragile interethnic equilibrium. Nevertheless, interethnic relations had been deteriorating since Macedonia’s independence from Yugoslavia, particularly affecting relations between the ethnic Macedonian majority and the ethnic Albanian population (the country’s secondlargest group). With this in mind, both international and domestic experts emphasized the importance of continued attention to the question of interethnic relations, warning of possible conflict if the Macedonian government did not make a special effort to address the issue (Najčevska and Beška 1999). In February 2001, shooting broke out between Macedonian border guards and ethnic Albanians belonging to an organization calling itself the National Liberation Army (NLA) in Tanuševci (a village on the Kosovo border that had served as a KLA base in 1999). When in March fighting between the NLA and Macedonian security forces spread to Tetovo – the second largest city in Macedonia with an ethnic Albanian majority – the worst fears of the international community concerning a new Balkan war seemed to have materialized. As the NLA opened new fronts, it became increasingly clear that this was not a small terrorist group (as the government claimed), but rather an organized movement with a military strategy to gain control of portions of the territory of the Macedonian state. While the NLA claimed to be fighting for the improvement of the rights of ethnic Albanians in Macedonia, the Macedonian government maintained that the NLA was working towards secession or a ‘Greater Albania’. The foreign media was quick to seize on a new story, using terms such as ‘Balkan Ulster’ (Walker 2001) to the frustration of Macedonia’s population, which had become used to more agreeable terms such as ‘Oasis of Peace’. The low-level military conflict between the NLA and Macedonian government forces continued throughout the spring of 2001 in the regions around Tetovo (to the west) and Kumanovo (to the north), even spreading to the immediate suburbs of Skopje in early June when the NLA occupied the village of Aračinovo. There were also several incidents of interethnic violence (mainly in Bitola and in Skopje) as crowds took to the streets in several cities and destroyed stores belonging  

The NLA and the Kosovo Liberation Army (KLA) have the same abbreviation in Albanian: UÇK (which stands for Ushtria Çlirimtare Kombëtare, in the first case, and Ushtria Çlirimtare e Kosovës in the second). ‘Greater Albania’ refers to the territories inhabited by ethnic Albanians: Albania itself, Kosovo, parts of southern Serbia (Preševo valley), and portions of western Macedonia.

9  Power-sharing in Macedonia?

to ethnic Albanians and other minorities in response to killings of Macedonian soldiers and police officers that were attributed to the NLA. The fears of civil war raised by the interethnic violence were further fed by several large, ethnic Macedonian-led anti-government demonstrations in front of the parliament building in Skopje. On 13 August 2001, however, after more than a month of intense negotiations mediated by European Union (EU) and United States Special Envoys François Léotard and James Pardew, as well as by Max van der Stoel of the OSCE and NATO’s Peter Feith, Macedonia’s four largest political parties – two ethnic Macedonian and two ethnic Albanian – signed an agreement on a set of legal and other measures designed to improve the situation of the country’s ethnic Albanian community. Beginning with a brief analysis of the roots of the Macedonian conflict, this chapter provides an overview of events in Macedonia from February to August 2001. Domestic and international attempts to end the fighting receive attention, as do the negotiations leading to the Framework Agreement of 13 August 2001. The chapter also offers an analysis of the main measures proposed in the Framework Agreement and an assessment of the formal grounds the document provides for power-sharing. Next, we examine domestic and international reactions to the Framework Agreement, as well as the complex and to-date incomplete process of implementation. Drawing on the preceding sections, in Section VI we assess the Framework Agreement’s prospects for bringing a durable resolution to the conflict which prompted its drafting. From our analysis, we conclude that Macedonia constitutes neither a successful case of power-sharing nor a failed one, but rather a potential case of powersharing at a crucial juncture. On the one hand, it is still too early to assert that the Framework Agreement has attained its goals, and future implementation of the accord may be compromised by the perception, widespread among ethnic Albanians and ethnic Macedonians alike, that the terms of the Framework Agreement stem from the international community’s sympathy for the ethnic Albanian side. Moreover, even strict adherence to the terms of the Framework Agreement would not lead to consistent and comprehensive power-sharing. On the other hand, the fact that the Framework Agreement continues to play a central role in setting the agenda of the Assembly of the Republic of Macedonia (Macedonia’s parliament) in a highly sensitive, but largely non-violent, political atmosphere provides evidence that the document may yet provide the basis for a functional consociational arrangement.



For the text of the agreement, see http://www.president.gov.mk/eng/info/dogovor. htm.

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II

Roots of the Conflict

A

Delayed Spillover from Kosovo or Domestic Tensions?

The Macedonian conflict was prompted by the deliberate decision of an ethnic Albanian paramilitary organization with roots in both Kosovo and Macedonia to provoke clashes with the Macedonian security forces in the hope that this would spark a conflict between the Macedonian authorities and the local Albanian minority. While the official appearance of the NLA is linked to the attack on a police station in January 2001 in Tearce, Macedonia, there are indications that preparations for the NLA offensives might have already begun in mid-2000. The explanation for the timing of events must be sought in a combination of factors: the influence of ethnic Albanian decision-makers in Kosovo; an attempt in 2000 by the Macedonian border patrol to crack down on cross-border smuggling and weapons trafficking by ethnic Albanians; the signing of the border delineation agreement between Macedonia and the Federal Republic of Yugoslavia in February 2001; and, finally, the decision by NATO to allow Yugoslav forces back into southern Serbia in May 2001, which in consequence drove those NLA fighters who were there into Macedonia. What was the overall aim of the NLA? Notwithstanding ethnic Macedonian suspicions that the NLA was fighting for a Greater Albania and that the ethnic Albanian population of Macedonia supported this aim, polls taken in the spring of 2001 showed that, in fact, support among the ethnic Albanian population for a Greater Albania was quite low (although it might have been higher for uniting the western, Albanian-majority areas of the country with Kosovo to form a ‘Greater Kosovo’). Further, even those who supported this idea were not necessarily ready to take up arms. According to a poll commissioned by the US State Department’s Office of Research, while 69% of ethnic Albanians were sympathetic to the NLA guerrillas, 87% stated that it was personally important to them that the country remain united. A majority of ethnic Albanians (71%) stated that they would prefer to live in an ethnically mixed Macedonia rather than a greater Albanian state and, of those who supported a Greater Albania, only 13% were prepared to fight for it. It therefore cannot be maintained that the conflict in Macedonia stems from claims to external self-determination by the ethnic Albanian population. These poll results seem to demonstrate that the strong sympathies for the NLA among ethnic Albanians reflected support for the NLA’s claim to be fighting for an improvement of ethnic Albanian rights as well as a greater say in the affairs of the state rather than any territorial aim. The Macedonian government nonetheless held that the NLA was a terrorist organization consisting primarily of KLA fighters and lacking domestic legitimacy. The government accordingly blamed the international community for having failed to effectively seal the border between Kosovo and Macedonia. The international community, while also refusing 

Poll of 1,091 nationally representative adults conducted between 16 April and 3 May 2001 (cited in Judah 2001a).

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to accept the NLA’s legitimacy to speak for the ethnic Albanian community of Macedonia, nevertheless took the stance that the actual grievances were legitimate and that the solution to the crisis lay in addressing these concerns through political dialogue. The Macedonian government’s position was consistent with various theories predicting that interethnic conflict in Kosovo would eventually spill over into Macedonia. However, while it was true that the NLA had clear links to the KLA and a splinter group, the Liberation Army of Preševo, Medvedja, and Bujanovac (UÇPMB), which was active in Albanian-majority enclaves of southern Serbia, there was no doubt that it also had important domestic roots. Not only did the NLA include ethnic Albanians from Macedonia who had previously fought with the KLA (a fact that the Macedonian government recognized), but its ranks also included significant numbers of ethnic Albanians from Macedonia who had taken up arms more recently, with the NLA claiming that about 80% of its fighters were from Macedonia (Naegele 2001). Thus, while the unfolding of the Macedonian conflict seems to fit with expectations of a spillover from Kosovo, this explanation must be supplemented with the domestic roots theory, which saw potential for conflict in the growing tensions between ethnic Macedonians and ethnic Albanians. Indeed, Macedonia’s ethnic Albanian population seems to have become increasingly frustrated with the ineffectiveness of its political leaders in representing its concerns. Sidelined from politics in Kosovo, former KLA leaders might have calculated the opportune moment to capitalize on ethnic Albanian dissatisfaction in Macedonia, gathering support for armed action there. At the 





There were two main variants of the spillover scenario. The first one assumed that the western and northern portions of Macedonia would become the theatre of military operations for the Albanian army or for paramilitary formations of ethnic Albanians from Macedonia (or for both) acting in support of Albanian insurgents in Kosovo and possibly resulting in an armed incursion by Serbian troops. The second variant predicted that a wave of up to one million refugees from Kosovo could flood into Macedonia and destabilize the country. For a critique of the various scenarios, see Troebst 1997. Although different variants of the domestic roots theory provide different genealogies of the tensions that eventually erupted into the armed conflict of 2001, a commonly cited point of origin for a gradual but steady deterioration of relations between ethnic Macedonians and ethnic Albanians are the Kosovo uprisings of 1981. The ensuing government crackdown in Kosovo led to a large influx of ethnic Albanians into Macedonia, prompting Macedonian authorities to take various measures to combat the perceived threat from Albanian nationalism. For a discussion of these measures, see Poulton 1989. According to Tim Judah, many members of the Popular Movement for Kosovo (LPK), a small party instrumental in setting up the KLA, were ethnic Albanians from Macedonia. While some opted for politics at the end of the Kosovo war, others did not. According to Judah, these people whom he calls “the losers of Kosovo politics” had been agitating for a conflict in Macedonia (Judah 2001b). Stefan Troebst has published a similar analysis (2000).

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same time, in an attempt to gain the support of both ethnic Albanians and the international community, the NLA “effectively hijacked the political programme of the Albanian parties in Macedonia” (Engström 2002), advocating recognition of Albanians as an equal constituent people in the preamble of the Constitution, making Albanian an official language, and equal job opportunities in state institutions and administration. B

Interethnic Relations in Macedonia: Fertile Ground for an Albanian Insurgency?

According to official statistics based on the 1994 census,10 ethnic Macedonians account for approximately 67% of Macedonia’s 1.95 million inhabitants, with ethnic Albanians constituting 23% of the total population, ethnic Turks 4%, Roma 2.25%, ethnic Serbs 2%, Vlachs 0.44%, and other ethnic groups another 2%.11 The high birth rate of the ethnic Albanian population is often cited as a reason for the ethnic Macedonians’ fear that they will lose control of ‘their state’, with ethnic Macedonian insecurities magnified by Macedonia’s neighbours’ refusal to recognize the existence of a separate Macedonian nation, a distinct language, or even the name of the country. In this context, many ethnic Macedonians seek to justify their domination of the state by the fact that this is the only state that they have (implying that ethnic Albanians can go to Albania if they wish). Additionally, the Macedonian government may well be correct in claiming that no other minority in the region has such extensive rights as the Albanian minority in Macedonia, and the status of ethnic Albanians in Macedonia is considerably higher than the status of ethnic Macedonians living in neighbouring Albania, Bulgaria, and Greece. Ethnic Albanian parties have pressed for changes of a largely symbolic nature, arguing that these are essential for improving the rights of ethnic Albanians in practice. They reject the 1994 census figures, claiming that ethnic Albanians represent more than a third of the population12 and that they should therefore enjoy 10 11

12

A new census had been planned for May 2001 but was repeatedly delayed, such that it was only eventually conducted at the end of 2002. For official statistics, see http://www.stat.gov.mk. As is the case throughout postcommunist Eastern Europe, Macedonian census data undercount Roma relative to the number of persons who identify themselves as such in daily life. Estimates by Romani nongovernmental organizations in Macedonia place the country’s Romani population between 100,000 and 150,000. Discrepancies are due to the large number of ethnic Albanians living in the country without a legal status, with some representatives of Macedonia’s ethnic Albanian population claiming that over 100,000 ethnic Albanians were not counted in the 1994 census as a result of application of the Law on Citizenship of 1992 (“Zakon za državjanstvoto na Republika Makedonija,” Služben vesnik na Republika Makedonija 67/1992). Among the most problematic of the provisions from the standpoint of many ethnic Albanian applicants for Macedonian citizenship were the citizenship law’s requirements of fifteen years of legal residence in Macedonia and fluency in the

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equal status with ethnic Macedonians in the preamble of the Constitution. They have also long demanded that Albanian be made a second official language alongside Macedonian. At present, it may be used at the local level in municipal bodies if ethnic Albanians make up a majority or a ‘considerable number’ (set at 20% in the 1995 Law on Local Self-Government) of the local inhabitants (this applies to any minority language which satisfies this requirement).13 They also point to the fact that they are under-represented in state administration (despite a doubling of numbers since 1991, the percentage of ethnic Albanians in civil service is only about 7%), in the police, and in the army, and that they generally feel like secondclass citizens. As already stated, the majority of ethnic Albanians want to live in a shared Macedonian state, as the political, economic, and other advantages of being governed by Skopje have until now outweighed the numerous risks of changing the territorial status quo (Troebst 1997: 91). Successive Macedonian governments have made efforts to build a satisfactory framework for the protection of rights of the ‘nationalities’ (i.e., minorities), granting them special rights in the fields of education, culture, and the media.14 Particularly notable are the Macedonian government’s efforts to work with the OSCE High Commissioner on National Minorities to settle the question of higher education in Albanian, with the private South East European University at Tetovo admitting its first students in October of 2001.15 Still, many issues have been left unresolved, exacerbating ethnic tensions between the ethnic Macedonian and ethnic Albanian populations. Ethnic tensions are directly related to ethnic imbalances that can be traced back to the socioeconomic structure left over from Yugoslavia, of which Macedonia was a constituent republic from 1943 to 1991. During this period, despite

13

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Macedonian language, with both provisions apparently targeting ethnic Albanians who had fled Kosovo following the uprisings of 1981 in that province. There have also been calls to count the ethnic Albanian diaspora. See “Zakon za lokalnata samouprava,” Služben vesnik na Republika Makedonija 52/1995. A 1999 resolution of the Macedonian Constitutional Court repealed the right to use minority languages in local courts, restricting its use to municipal councils. The resolution provided that a person may still address the court in a minority language, but only through an interpreter whose costs must be borne by the state. The 1995 Law on Local Self-Government does not contain provisions for the use of minority languages in communication with local government offices. See, for example, Articles 7, 8, and 48 of the Macedonian Constitution of 1991, an official English version of which is available at http://www.ok.mk. These constitutional provisions are further elaborated in separate laws in the areas of education, local self-government, and the media. Macedonia is also a party, inter alia, to the Council of Europe’s Framework Convention for the Protection of National Minorities. The European Charter for Regional or Minority Languages was signed on 25 July 1996, but has not yet been ratified. The recommendations of the HCNM on Macedonia are at http://www.osce.org/ hcnm/recommendations/fyrom/index.htm. For the homepage of the South East European University at Tetovo, see http://www.see-university.com/.

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many human rights abuses, an extensive system of collective rights for minorities was established. In reality, however, discrimination against certain ethnic groups, especially against ethnic Albanians, was common practice. The socioeconomic, cultural, and educational gap between the ethnic groups widened due to the fact that a higher proportion of ethnic Albanians and ethnic Turks lived in predominantly rural environments. As a result of disproportionately high dropout rates, minorities are under-represented in secondary and post-secondary education. Despite a drastic increase in minority representation following the raising of university quotas, members of Macedonia’s ethnic minorities still constituted only 16% of the total student population of Skopje and Bitola in the 1998–1999 academic year (US Department of State 2000).16 Lower levels of education compound problems of unemployment among ethnic Albanians and Roma, although all groups, including ethnic Macedonians, are affected by high rates of unemployment.17 The problems of a struggling economy (exacerbated by the embargo on the Federal Republic of Yugoslavia) have also been a consistent negative factor. Ethnic and socioeconomic differences in Macedonia are reinforced by religious and linguistic divides. Although nearly all ethnic Albanians speak Macedonian, very few ethnic Macedonians can communicate in Albanian. Additionally, the barriers between ethnic Albanian and ethnic Macedonian communities are sustained by a political and state system founded on the ethnic rather than the civic principle, with ethnically-based political parties. The absence of truly multicultural and multilingual media reinforces the isolation of the ethnic communities. Even the many domestic nongovernmental organizations tend to represent ethnic interests. Approximately a decade after Macedonia’s secession from Yugoslavia, the country’s social and political landscape was marked throughout by ethnic divisions, with ethnic Macedonians and ethnic Albanians living in parallel societies, such that there was little communication and interaction between ordinary people from different ethnic backgrounds. This state of affairs had resulted in growing mistrust between the ethnic Macedonian and ethnic Albanian populations, leading in turn to occasional incidents, often over issues related to education and use of language. Relations between ethnic Macedonians and ethnic Albanians are thus not a function of ancient hatreds, but rather the product of indifference and mistrust stemming from Macedonians’ and Albanians’ lack of first-hand knowledge about one another. The situation deteriorated as Macedonia’s independence from Yugoslavia increased the political relevance of the country’s sizeable Albanian population.

16 17

The quota system was introduced at 10% in 1991, and in 1996 was adjusted to correspond to each minority’s share of the total population according to the results of the 1994 census. In late 2001, for example, estimates from the State Employment Bureau and the Institute of Economics indicated an unemployment rate of over 40% (Nanevska 2002).

9  Power-sharing in Macedonia?

C

Main Political Actors before the Conflict

The government formed after the 1998 parliamentary elections and which ruled until May 2001 was a coalition of the Internal Macedonian Revolutionary Organization – Democratic Party for Macedonian National Unity (VMRO-DPMNE), the small and nominally civic Democratic Alternative (DA), and the Party for Democratic Prosperity of the Albanians (PDP-A, or PPD-Sh in Albanian).18 From independence until the 1998 elections, Macedonia had been ruled by changing coalitions headed by the Social Democratic Union of Macedonia (SDSM), a party presenting itself and viewed externally as a successor to the League of Communists of Macedonia. If the programmatic differences between the two largest parties of the Macedonian majority have often been obscured by convergences in political practice (Hristova 2000; Sasajkovski 1999),19 even programmatic differences are largely absent between the two ethnic Albanian parties represented in the Assembly of the Republic of Macedonia. Instead, the main divergence between PDP-A and the Party for Democratic Prosperity (PDP, or PPD in Albanian) has been their degree of radicalism, with PDP-A forming when part of PDP’s youth wing broke off out of dissatisfaction with PDP’s relative complacency as a member of the governing coalition until 1998. Moreover, the position of these two parties relative to one another has seemed to depend on which of the two is in government. Thus, PDP became the more radical of the pair when it joined the parliamentary opposition in 1998. As already mentioned, from independence until the parliamentary elections of 1998, the political scene in Macedonia was dominated by the Social Democratic Union of Macedonia, with President Kiro Gligorov playing an important role in arbitrating conflicts among parliamentary parties. The formation of the new government led by Prime Minister Ljubčo Georgievski (VMRO-DPMNE) and the subsequent election of Boris Trajkovski (also VMRO-DPMNE) therefore marked a major change in Macedonian politics. Notwithstanding, on the one hand, the party’s pedigree as the descendant of the original Internal Macedonian Revolutionary Organization founded to fight the Ottomans and, on the other hand, the 18

19

Following the parliamentary elections of 1998, PDP-A merged with the smaller People’s Democratic Party (abbreviated as NDP in Macedonian, PDP in Albanian) to form the Democratic Party of Albanians (DPA in Macedonian, PDSH in Albanian). The NDP was founded in early 1990 by Iljaz Halimi, who in 1992 called for the federalization of Macedonia with an autonomous Albanian region and the reconstitution of the Republic of Macedonia as a bi-national state (Bugajski 1994). The practice of smaller parties of the Macedonian majority tends to be similar. In this context, it is worth mentioning the Liberal Party, which participated in the Government of National Unity formed in May 2001 (discussed below); the party’s presentation of itself as civic notwithstanding (see http://www.liberalna.org.mk), its leader, Stojan Andov, often made use of his role as parliamentary speaker in obstructing the implementation of the Framework Agreement on behalf of the ethnic Macedonian population.

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thinly veiled anti-Albanian rhetoric of its 1998 electoral programme20 (as well as the explicitly anti-Albanian outbursts of the party’s leader, Ljubčo Georgievski), VMRO-DPMNE turned out to be surprisingly moderate and open to resolving outstanding issues in interethnic relations once in government. By bringing PDPA into the governing coalition, VMRO-DPMNE pursued its predecessor’s informal policy of power-sharing with an ethnic Albanian party. This policy of moderation towards the ethnic Albanian community paid off as the VMRO-DPMNE candidate Boris Trajkovski won the November 1999 presidential elections over his rival Vasil Tupurkovski (DA), thanks in large part to the votes of the ethnic Albanian population (Krause 2000). III The Macedonian Conflict (February–August 2001) A

The Domestic Response: Pursuit of a Military Solution

Consistent with its position that the activity of the NLA was a purely imported crisis brought on by terrorists seeking to gain control of portions of Macedonian territory and to guarantee their revenues from cross-border smuggling, the Macedonian government first attempted to destroy the NLA by military means. On 21 March 2001, the NLA was given a twenty-four hour deadline to lay down arms and/or leave the country. The NLA declared a unilateral ceasefire, stated that it did not wish to threaten the territorial integrity of the country and called for dialogue on the rights of ethnic Albanians in Macedonia. However, the government refused to negotiate and ordered a full-scale military offensive on 25 March. As the conflict continued into April, it became apparent that there would be no easy victory for the small and ill-equipped Macedonian army; not only were there casualties among Macedonian and Albanian combatants as well as civilians, but the NLA was also successful in opening a new front in the northern city of Kumanovo. Furthermore, the Macedonian government’s strong-arm tactics (e.g., shelling Albanian-inhabited villages) contributed to radicalizing the ethnic Albanian population. For its part, the NLA perpetrated acts of interethnic violence with the killing of eight Macedonian soldiers and police officers who were patrolling the border near Tetovo on 28 April 2001, provoking a wave of revenge attacks on 30 April and 1 May (and again on 6 June following more killings) against stores owned by ethnic Albanians and other Muslim minorities in the city of Bitola, from which several of the victims originated. The government reacted to these incidents by imposing curfews in Kumanovo, Bitola, and Tetovo, making known on repeated occasions that it was considering declaring a state of war in order to have greater means of fighting the NLA. 20 Vnatrešna makedonska revolucionerna organizacija-Demokratska partija za makedonsko nacionalno edinstvo, Promeni za dostoinstven život: Izborna programa na parlamentarnite izbori ‘98 (Skopje, 1998).

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B

Formation of a Government of National Unity

Under intense international pressure, a ‘Government of National Unity’ was formed among the main parliamentary parties on 13 May 2001 with the aim of finding a political solution to the crisis. Joining the previous coalition (consisting of VMRO-DPMNE, DA, and DPA) were the SDSM, the PDP, the Liberal Democratic Party (LDP), the Liberal Party (LP), and the Internal Macedonian Revolutionary Organization – Real Macedonian Reform Option (VMRO-VMRO).21 No progress was made in the talks, however, for this new government was anything but unified. Opinions on how to deal with the crisis diverged between the two ethnic Albanian parties, although both advocated amnesty and talks with the NLA. Divisions within the ‘Macedonian bloc’ were even stronger, especially between the hardline faction keen on pursuing a strong military offensive, on the one hand – represented by Prime Minister Ljubčo Georgievski and Interior Minister Ljube Boškovski (both VMRO-DPMNE) – and the more moderate SDSM leader Branko Crvenkovski, on the other. Georgievski’s frequent inflammatory statements against the ethnic Albanian parties, as well as the West, further polarized the domestic political environment. Just as detrimental was the fact that neither of the ethnic Albanian parties clearly condemned the NLA. Apart from efforts by President Boris Trajkovski to stabilize the situation and to come up with a peace plan, most politicians seemed more concerned with the prospect of upcoming parliamentary elections than with preventing a civil war. C

Reactions of the Macedonian Population

The failure of the government to explain its actions to the public and its tendency to blame any unpopular decision on Western pressure was a public relations disaster and partly to blame for bringing the country to the brink of civil war. A case in point is the handling of the Macedonian army’s withdrawal from the village of Aračinovo, with its strategic proximity to Skopje’s airport (Macedonia’s main airport). Following a prolonged offensive in late June 2001 to dislodge the NLA from the village, which it had occupied since 9 June 2001, the Macedonian army was forced to withdraw under Western pressure. The state television’s broadcast of the evacuation of armed NLA fighters by US soldiers serving under KFOR on 25 June cemented in many ethnic Macedonians a view of the event as a major affront against the Macedonian people on the part of the West. That same evening, crowds gathered in front of the parliament building to protest against the govern21

The ministerial positions were distributed as follows: VMRO-DPMNE received the largest share with six out of a total of eighteen ministers and four out of thirteen deputy ministers; SDSM, despite its large size in parliament, received the same number of positions as the two ethnic Albanian parties: three ministers and three deputy ministers; finally, the three smaller coalition members, LDP, LP, and VMROVMRO each received one ministerial position (see RFE/RL Balkan Report, 5.36, 18 May 2001).

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ment’s decision to allow the NLA to escape. Shots were fired and mobs marched through Skopje, destroying shops owned by ethnic Albanians and demanding the resignation of the president. An address by the president the following day barely succeeded in calming tempers. The impact of the conflict on interethnic relations throughout the country was extremely serious. Already divided along ethnic and linguistic lines, domestic media outlets of both ethnic Macedonian and ethnic Albanian populations broadcast ‘hate speech’ by politicians, contributing to a radicalization of opinion within each ethnic community. At the same time, all citizens suffered from a general atmosphere of insecurity and the deterioration of interethnic relations. The conflict also resulted in over 100,000 refugees and internally displaced persons, as well as in human rights violations ranging from arbitrary arrest to the killing of unarmed civilians by both Macedonian security and NLA forces (Amnesty International 2001). D

Unified International Intervention

The international community demonstrated that it had learned the lessons from previous Balkan conflicts by acting quickly and in a unified fashion, condemning the NLA’s violent tactics. At the same time, it acknowledged that action on behalf of the Macedonian government to improve the situation of ethnic Albanians was warranted. The international community therefore called on the Macedonian government to find a political solution to the crisis rather than pursue a military path, which risked leading to full-blown war. The EU High Representative for Common Foreign and Security Policy Javier Solana and the NATO SecretaryGeneral Lord Robertson made repeated trips to Skopje from late March 2001 to encourage talks among the political parties represented in parliament. While Solana’s and Robertson’s efforts prevented the declaration of a state of war and pressured the main parties to join in a Government of National Unity, this shuttle diplomacy achieved little in the way of positive outcomes. The international community therefore decided to invest more resources in resolving the crisis, with the EU and the USA each nominating (in late June 2001) a special representative to facilitate talks on the ground (former French Defence Minister François Léotard and Ambassador James Pardew respectively). The efforts of the EU and the USA to bring about a political solution to the crisis were supplemented by those of the OSCE. The OSCE has a long history of conflict prevention in Macedonia: in addition to the active engagement of OSCE High Commissioner on National Minorities Max van der Stoel from 1993 to 2001, the OSCE Spillover Monitor Mission to Skopje had been in place since September 1992, making it the longest-serving OSCE mission. When the conflict broke out, the capacity of the OSCE Mission in Skopje was doubled from a staff of eight, typical of OSCE missions, to 16 international personnel who were sent to monitor crisis areas. The OSCE Mission also consistently condemned acts of violence by both sides in the conflict, investigated claims of human rights abuses and con-

9  Power-sharing in Macedonia?

demned the misuse of religious and cultural sites.22 The task of the OSCE Mission was made particularly difficult by the strong anti-Western sentiment of parts of the population reinforced by the xenophobic statements of some politicians. In this atmosphere, there were also several attacks on Western embassies as well as against the office of the OSCE Mission. On 21 March 2001, the OSCE Chairman-in-Office, Romanian Foreign Minister Mircea Geoana, announced his intention to nominate US diplomat (and former head of the OSCE Mission in Skopje) Robert Frowick as his Personal Representative. In May of the same year, Frowick initiated the first serious attempt to bring about a cessation of hostilities by brokering direct negotiations between the DPA, the PDP, and the NLA on a ceasefire in exchange for an amnesty (International Crisis Group 2001a; IWPR 2001c). In the ‘Prizren Declaration’ of 22 May 2001 (named after the town in Kosovo where the parties met), the NLA reaffirmed recognition of Macedonian territorial integrity and demanded as a condition of a ceasefire that ethnic Albanian representatives be given a veto over policies related to ethnic Albanians’ rights, as well as an amnesty and the integration of demobilized NLA fighters into the police and army in Albanian-majority areas of Macedonia. These were unacceptable demands for the ethnic Macedonian side, and Frowick’s alleged role in arranging the meeting was condemned not only by the Macedonian-language media but also by the international community. Even the OSCE Mission to Skopje claimed that Frowick had been acting on his own and that the NLA could not be considered as a partner in a political dialogue.23 Ambassador Frowick left Macedonia at the end of May and was replaced on 1 July 2001 by the former OSCE High Commissioner on National Minorities, Max van der Stoel. In the end, the Prizren Declaration nonetheless proved useful for creating a common platform between the NLA and the two ethnic Albanian parties, likely contributing to the NLA’s assent to the Framework Agreement despite not being a signatory to it. E

The Internationally Sponsored Talks

Following a request for assistance – apparently motivated by the absence of other viable options – from President Trajkovski, on 29 June NATO agreed to send about 3,000 troops to supervise the disarming of the NLA provided that four conditions were fulfilled: (1) a peace agreement signed by the main political leaders; (2) a status of forces agreement (SOFA) with Macedonia on the conditions of NATO troop deployment; (3) an agreed plan for weapons collection, including an explicit agreement by the NLA to disarm; and (4) an enduring ceasefire.35 The final condition for starting talks was achieved with a new Western-brokered ceasefire on 5 July 2001.

22 23

For the press releases of the OSCE Mission, see http://www.osce.org/news_scripts/. RFE/RL Balkan Report, 5.37, 29 May 2001.

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1 Skopje, 9 July 2001: Round 1 The round of talks that began in Skopje on 9 July 2001 involved only the four largest parties in the Government of National Unity (VMRO-DPMNE, SDSM, DPA, and PDP). EU and US representatives Léotard and Pardew were joined on 10 July by Ambassador Van der Stoel. The chief NATO representative in Skopje, Ambassador Peter Feith, was responsible for liaising with the NLA. An extensive proposal drafted by domestic legal experts, with the help of the French constitutional lawyer Robert Badinter, served as a basis for the talks.24 The ethnic Albanian parties strongly criticized the initial draft and made a counter-proposal demanding that ethnic Albanians be made a ‘constituent people’ and that the Albanian language be placed on an equal footing with the Macedonian language.25 They also proposed to establish the post of vice-president, to be filled by an ethnic Albanian, with veto power over all important government decisions. The Albanian parties also proposed transferring control of the local police to the municipal authorities. These demands came as no surprise as most were part of the PDP-A’s platform in the October 1998 elections (Poulton 2000: 198);26 some had also allegedly been discussed in Prizren. Responding to the Albanian parties’ concerns, the international mediators met separately with those parties to prepare a revised document. Two important concessions were obtained from the ethnic Albanian parties: the request for the post of vice-president with veto power and demands to make ethnic Albanians a constituent people were both dropped. The second draft was presented to the ethnic Macedonian parties on 18 July 2001.27 Already highly suspicious because of the separate meeting with the Albanian parties, the ethnic Macedonian parties strongly rejected the new draft in which it was proposed that any language spoken by at least 20% of the population (i.e., Albanian) would be official state-wide. Prime Minister Georgievski stated that this would lead to “language federalization” and condemned the “cowboy-like methods” of the international mediators (IWPR 2001d). In protest, Lord Robertson and Javier Solana cancelled a trip to Skopje scheduled for 19 July and the two ethnic Albanian leaders pulled out of the talks. Talks resumed the next day, but at the expert level only, with separate meetings between the international mediators and each side. Meanwhile, the situation on the ground deteriorated, with ceasefire violations and reports of ‘ethnic cleansing’ in the form of expulsions of ethnic Macedonians from the Tetovo area confirmed by OSCE and other monitors.

24 This first draft was published in the Macedonian-language daily Dnevnik on 10 July 2001. For an overview of its contents, see RFE/RL Balkan Report, 5.48, 12 July 2001. 25 Published in the Macedonian-language daily Večer on 12 July 2001. 26 Also see Kongresi i Partisë Demokratike Shqiptare, Programi i Partisë Demokratike Shqiptare (Tetovo, 1997); Sobranie na Partijata za demokratski prosperitet, Programski opredelbi (Tetovo, 1999). 27 The second draft was published in Dnevnik on 19 July 2001.

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2 Ohrid, 28 July 2001: Round 2 A government ultimatum, together with an agreement reached by Ambassador Feith with the NLA in Prizren on 25 July 2001, prompted the NLA to begin withdrawing from its positions near Tetovo and to respect the ceasefire. Following a meeting in Skopje on 26 and 27 July between the four parties in the talks as well as Lord Robertson and Javier Solana, it was announced that negotiations would resume. While Tetovo was originally chosen as the site of the talks, as a result of security concerns the talks began on 28 July at the Macedonian president’s official residence on Lake Ohrid. A cautious breakthrough on the status of the Albanian language was reported on 1 August, followed on 5 August (after another visit by Solana) by a compromise agreement on the administration of the police.28 Despite reported progress on the political front, the armed conflict continued even after an announcement was made that a final agreement had been initialled on 8 August. In apparent retaliation for the extra-judicial killing by the police of five alleged NLA members in Skopje on 7 August, five ethnic Macedonian road workers were kidnapped and abused, allegedly by the NLA.29 The killing of at least seventeen soldiers on 8 August in two separate attacks was also attributed to the NLA. Editorials in the Macedonian-language press put pressure on the government to resume military action. Over the weekend of 11–12 August, the country saw some of the worst fighting as both sides attempted to gain ground before the official signing of the agreement. Under heavy Western pressure, a unilateral ceasefire was declared by the government in the evening of 12 August, in time for a low-key signing ceremony the following day in Skopje. IV The Framework Agreement of 13 August 2001: Towards Power-sharing in Macedonia? A

Main Measures Proposed

The Agreement of 13 August 2001 aims to provide a “framework for securing the future of Macedonia’s democracy and permitting the development of closer and more integrated relations between the Republic of Macedonia and the Euro-Atlantic Community” (Preamble). In fact, the document is an attempt to address many of the grievances of ethnic Albanians and to give them a greater say in managing the affairs of the country, which a system of majoritarian democracy alone cannot guarantee. It consists of ten main sections and three annexes. The Agreement begins by rejecting the use of violence in the pursuit of political aims and reaffirms Macedonia’s sovereignty and territorial integrity. Next, it outlines a series of proposed measures to improve the status of ethnic Albanians in Macedonia, with the measures followed in turn by a discussion of constitutional and 28

“Macedonian Parties Resolve Police Issue,” RFE/RL Newsline, 6 August 2001, at http://www.rferl.org/newsline. 29 See the Amnesty International news release of 10 August 2001 (EUR 65/004/2001). Also see the press release by Human Rights Watch (2001).

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other legal reforms necessary for their implementation. Before evaluating the potential of the Agreement to provide a lasting resolution of the Macedonian conflict, we will outline the measures proposed in the document. 1 Promotion of the Civic Approach The Framework Agreement endorses a civic rather than ethnic concept of the state and stresses the need to “continually ensure that the Constitution fully meets the needs of all its citizens,” while also emphasizing that the multiethnic character of Macedonian society must be preserved (Section 1). A series of constitutional amendments are thus proposed in Annex A of the Agreement to replace all reference to “nationalities” (minorities) by the term “communities.” This concerns, first and foremost, the infamous preamble of the 1991 Constitution, which defined the republic as “a national state of the Macedonian people, in which full equality as citizens and permanent coexistence with the Macedonian people is provided for Albanians, Turks, Vlachs, Roma and other nationalities living in the Republic of Macedonia.” According to the Framework Agreement, the revised preamble is to refer only to the “citizens of the Republic of Macedonia,” thereby transforming the Macedonian nation-state into a state of all of its citizens, regardless of ethnic, religious, or linguistic background. Favoured by the EU and US Special Envoys, this civic solution was already proposed in the first draft by the ethnic Macedonian side as an alternative to making the country a binational state of ethnic Macedonians and ethnic Albanians (Pearson 2002: 6). 2 Language-related Measures The Framework Agreement contains several major changes concerning linguistic rights, which in practice will have the greatest impact for ethnic Albanians. Concerning the state level, the Framework Agreement states that any language spoken by at least 20% of the total population is also an official language throughout the republic (Section 6.5). Any official language may also be used in state organs, and separate legislation is to be adopted to codify the use of official languages other than Macedonian. By the terms of the Agreement, Albanian is the only language to qualify as an official language state-wide and may thus be spoken in parliament in addition to being used for the publication of state laws. With respect to the local level, the Framework Agreement restates the right of members of any (minority) community to use their language in units of local self-government if that language is spoken by at least 20% of the local population (Section 6.6). It also grants a new right to speakers of any language that qualifies as official at the state level (i.e., Albanian) to use in official communication at the local level with regional representatives of the central government, who must respond in Macedonian as well as in that language (Section 6.5). This provision differs from the one contained in the first draft, by which regional authorities were not obliged to respond in the minority language. At the same time, the protection of the rights of Macedonian speakers is ensured by making Macedonian the official language throughout the country, regardless of the number of its speakers in

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any municipality (Section 6.4). Moreover, Macedonian remains the sole language of the republic’s external relations. The Framework Agreement’s potential impact on other minority languages is minimal insofar as only Albanian qualifies for status as an official language for use at the state level as well as in communication with organs of the central government at lower levels.30 Thus, while the Agreement allows speakers of Albanian to make use of their native tongue in communication with regional representatives of the central government, it contains no similar provision for the use of other languages spoken by 20% of the population of a given municipality. The situation is different, however, when it comes to minority language use in organs of selfgovernment. The use of such languages in organs of municipal government was already allowed by the 1995 Law on Local Self-Government and is not affected by the Framework Agreement. By way of contrast, one local-level innovation of the Framework Agreement for speakers of minority languages other than Albanian is the option for municipalities to allow the use of languages spoken by less than 20% of the local population in communication with municipal administrative organs (Section 6.6). 3 Measures Concerning Local Police A particularly controversial issue of the talks that produced the Framework Agreement was the control of local police. Accordingly, the final proposal regarding responsibility for local police is a compromise, with local police commanders to be appointed by local authorities from a list drawn up by the Interior Ministry (Section 3.3). At the same time, the police will remain under the control of the central government. In line with the commitment of the signatories to ensure that the police force reflects the ethnic composition of the general population, the Framework Agreement calls for a total of 1,000 new police officers “from communities not in the majority” to be hired and trained by 2004 (500 by July 2002 and a further 500 by July 2003) (Annex C, Section 5.2). The new recruits are to be sent to areas inhabited by members of their own minorities. In practice, most of the new recruits will be ethnic Albanians, with the numerical goal of the planned recruitment to increase the proportion of Albanians in the police force from approximately 3% in 2001 to approximately 23% (i.e., ethnic Albanians’ share of Macedonia’s general population according to the 1994 census). 4 Special Majorities Section 5 of the Framework Agreement proposes special parliamentary procedures in the form of a system of “double majorities” that are designed to prevent representatives of minority communities from being outvoted when adopting 30 While the 20% threshold is not uncommon at the local level (see, for example, the 1999 Slovak Law on the Use of Minority Languages (Zákon č. 184 o používaní jazykov národnostných menšín, at http://www.zbierka.sk)), Macedonia’s smaller minorities have called for a national threshold as low as 3% on the grounds that none of them can even approach the 20% requirement.

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laws that directly affect those communities (i.e., laws concerning culture, education, personal documents, and the use of languages and symbols). The same section of the Agreement provides for similar procedures to be applied when adopting laws on local finances, local elections, the city of Skopje, and the boundaries of municipalities. In each of these cases, laws can only be approved by a parliamentary majority “that includes a majority of the votes of representatives claiming to belong to the communities not in the majority in the population of Macedonia” (i.e., minority votes). This mechanism is similar to what was proposed for Bosnia-Herzegovina, although much simpler, as it will require deputies in parliament to identify themselves either as members of the majority or of “communities not in the majority in the population of Macedonia.” Not specified in the Framework Agreement, however, is whether membership in a minority is automatic (e.g., based on whether the deputy in question is a member of a political party associated with a particular ethnic minority) or instead is based on a more flexible system of self-identification, which could vary from vote to vote. The practical relevance of these considerations of group membership is demonstrated by the fact that although the Macedonian parliament in place when the Framework Agreement was drafted and approved included members of several of the country’s smaller (i.e., non-Albanian) minorities,31 only one member of a smaller minority (Amdi Bajram of the Union of Roma of Macedonia (SRM)) had been elected as a representative of a minority party. The Framework Agreement foresees different types of majorities (simple and qualified or two thirds) for different types of decisions. In most cases of laws directly affecting minority communities, the Framework Agreement calls for a simple majority of votes that also includes a simple majority of the minority votes. In the case of the constitutional amendments proposed in Annex A of the Framework Agreement and a revised Law on Local Self-Government, however, the Agreement calls for a special qualified majority of two thirds of the votes, including two thirds of the minority votes. 5 Equitable Representation Section 4 of the Framework Agreement (Non-Discrimination and Equitable Representation) reaffirms the general principle of non-discrimination and equal treatment before the law. In particular, Section 4 focuses on employment in public administration and public enterprises, as well as access to public financing for businesses. In addition to the measures to ensure fair representation of ethnic Albanians in the police force (discussed above), laws regulating employment in public administration are also to be amended in order to ensure equitable representation of the “communities” in all central and local public bodies as well as at all levels of employment. These proposed measures respond to observations that 31

According to the Macedonian Ministry of Information, the Assembly resulting from the parliamentary elections of 1998 consisted of ninety-two Macedonians, twentyfive Albanians, two Roma and one Bosniak. Ministerstvo za informacii na Republika Makedonija, Fakti (Skopje, 1999), 44.

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ethnic Albanians are under-represented in the workforce in general, and at the top levels of administration and decision-making in particular. Not resolved by the Framework Agreement are the financial means necessary to recruit and train persons from the under-represented communities. While the post of Public Attorney (i.e., ombudsman) was established in 1997, its lack of influence during its first four years of existence led to an expansion of the Public Attorney’s area of competence in the Framework Agreement. In particular, the ombudsman is to ensure observation of the principles of non-discrimination and equitable representation of (minority) communities in public bodies and in other areas of public life. Additionally, the ombudsman may contest the conformity of laws with the Constitution before the Constitutional Court, onethird of the members of which must now be chosen in parliament by a simple majority of votes, including a simple majority of minority votes. This same procedure applies also to the election of three members of the Judicial Council, as well as to the election of the ombudsman himself. 6 Decentralization of the Unitary Macedonian State The Framework Agreement states that the unitary character of the Macedonian state is inviolable, thereby excluding federalism as well as all forms of territorial autonomy. At the same time, however, the Agreement notes the importance of developing local self-government as an essential step in encouraging the participation of citizens in democratic life and promoting respect for the identity of the ethnic communities. A cornerstone of the Framework Agreement is thus the expansion of the role of local self-government and municipalities in what had been an extremely centralized country (Section 3). Indeed, when the Agreement was approved, there was no intermediate level of administration between the central government and the country’s 124 municipalities.32 The Framework Agreement accordingly states that a revised law on local self-government must be adopted to reinforce the powers of elected local officials and to enlarge their competencies in the areas of public services, urban and rural planning, environmental protection, local economic development, culture, education, social welfare, and health care. 7 Other Measures A symbolic concession of great importance to ethnic Albanians and other minorities in Macedonia is the provision of the Framework Agreement that official personal documents may be issued in a minority language and its alphabet, in addition to Macedonian, which uses the Cyrillic alphabet (Section 6.8). The Agreement also stipulates that local authorities will be allowed to display emblems of community identity on local public buildings (an issue which in 1997 led to riots 32

The administrative changes of 1996 more than tripled the previous number of municipalities in the country (i.e., 35), resulting in an extremely large number for a country as small as Macedonia. See “Zakon za teritorijalnata podelba na Republika Makedonija i opredeluvanje na podračjata na edinicite na lokalnata samouprava,” Služben vesnik na Republika Makedonija 49/1996.

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in the west Macedonian towns of Gostivar and Tetovo in response to the removal of Albanian and Turkish flags from municipal buildings by the police). Additionally, the Agreement mentions the possibility of state funding for the new, primarily Albanian university in Tetovo (Section 6.2). A provision of the Framework Agreement inconsistent with the principle of non-discrimination is the document’s approach to Article 19 of the Constitution, which addresses the status of religious communities. While Article 19 was due to be amended through the elimination of its reference to the Macedonian Orthodox Church, thus granting all religious communities the same status, the Agreement calls for the amendment to state that “the Macedonian Orthodox Church, the Islamic Religious Community in Macedonia, the Catholic Church, and other Religious [sic] communities and groups are separate from the state and equal before the law.” By extending privileged status to Macedonia’s Muslim and Catholic populations in addition to the Orthodox population, the phrasing proposed in the Framework Agreement risks discriminating against smaller religious communities. Representatives of the Macedonian Orthodox Church, on the other hand, complained about the placement of Islam and Catholicism on the same level with Orthodoxy. B

Provisions Concerning Implementation

The Framework Agreement sets strict deadlines for effecting the changes outlined in the document (Section 8). In addition to the proposed constitutional amendments contained in Annex A, a revised Law on Local Self-Government was to be debated and adopted within forty-five days of the date of the official signing of the Framework Agreement (i.e., by 27 September 2001). Additionally, a long list of legislative changes was to be effected within a rigid timeframe (Annex B). Changes to be made by the end of the term of the parliament in power when the Framework Agreement was signed (thought at the time to be the end of 2001)33 included: a law on local self-government finances; provisions pertaining to police located in the municipalities; amendments to the laws on the civil service and public administration to ensure equitable representation of the communities; amendments to the Rules of Procedure of the Assembly to enable use of the Albanian language; new legislation regulating the use of languages in state organs; and new legislation on the issuance of personal documents. All other laws were also to be checked to ensure that their provisions regarding the use of languages were fully compatible with those of the Framework Agreement. Changes to be made by the end of 2002 were: a revised law on municipal boundaries; a revised law on electoral districts; and amendments to the law on the Public Attorney and other relevant laws to enact the change concerning the new responsibilities and financing of this position. 33

In fact, however, parliamentary elections were subsequently postponed until 15 September 2002.

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C

A Framework for Complex Power-sharing?

The five main elements of a full-fledged power-sharing arrangement are: (a) a power-sharing executive; (b) veto rights; (c) proportionality; (d) arbitration mechanisms; and (e) segmental autonomy (Schneckener 2000; cf. Lijphart 1977). Below, we juxtapose these elements with the provisions of the Framework Agreement. In so doing, we aim to demonstrate that the Framework Agreement is an awkward attempt at combining an integrative, civic approach emphasizing equal rights for all citizens with elements of consociational democracy and a regime of minority rights. Attempting, on the one hand, to establish a civic state, the document perpetuates divisions between the majority and non-majority communities, on the other. An example of the latter tendency is the special parliamentary mechanism proposed for certain situations, which forces deputies to make a choice about whether they belong to the majority or the non-majority community. At the same time, the Agreement reaffirms the unitary character of the state while introducing many important elements of power-sharing at the central level between the two largest communities. Thus, the Framework Agreement simultaneously rejects territorial autonomy and adopts measures which usually call for complementary territorial arrangements. 1 A Power-sharing Executive As previously mentioned, Macedonia has had an informal power-sharing executive due to the participation of an ethnic Albanian party in government since 1992. From 1994 to 1998, the PDP had nineteen representatives in parliament, five ministers (including one Deputy Prime Minister) and four deputy ministers. Following the October 1998 elections, the DPA held fourteen of the 120 seats in parliament, five of twenty-seven government ministers (including one Deputy Prime Minister), and five deputy ministers (out of twenty-one).34 Although this informal power-sharing arrangement at the executive level was not formalized in the Framework Agreement, the results of the September 2002 parliamentary elections provide additional evidence that a power-sharing executive constitutes an unwritten rule of Macedonian politics, with former NLA leader Ali Ahmeti’s Democratic Union for Integration (DUI in Macedonian, BDI in Albanian) in charge of four ministries (education, health, justice, and transport), as well as a minister without portfolio in the new SDSM-led government, which consists of a total of seventeen ministries.35

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35

Given that the total number of ministries had increased, ethnic Albanians claimed that they were less represented than in the previous government. However, the situation had improved in terms of providing a more significant presence of DPA representatives among high-level state administrators. For the results of the 2002 parliamentary elections in Macedonia, see http://www. ecmi.de/emap/mk_B04.html.

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2 Veto Rights Another element of a power-sharing arrangement is a veto power designed to encourage parties to reach a consensus by creating an atmosphere of security in which each group can, if necessary, block decisions in certain policy areas. Veto rights can be divided into three types: delaying, indirect, and direct. While the demand of the Albanian side for the creation of a post of vice-president with a veto right was not granted, the special system of double majorities to be used in specific situations constitutes an indirect veto power for minority representatives. In particular, the system of double majorities is designed to ensure that no law directly affecting the ethnic Albanian community can be adopted without the consent of ethnic Albanian deputies. According to the terms of the Agreement, the influence of ethnic Albanian politicians is not strictly limited to laws related to language, education and culture, as Albanian deputies’ consent is also necessary for the adoption of revised laws on local self-government, local finances, and local elections. In these cases, a simple majority of votes, including a majority of the votes of “representatives claiming to belong to communities not in the majority in the population of Macedonia”, is necessary (Section 5.1). 3 Proportionality The extensive measures to ensure proportional representation of the minority communities in state institutions and in public administration have already been outlined. More important than overall statistics, however, is the degree to which ethnic Albanians and other minorities will be represented at all levels, and especially in positions of responsibility. 4 Arbitration Mechanisms A further indication of a move from a state system based on general non-discrimination and minority protection towards power-sharing is the creation of a Committee on Inter-Community Relations to replace the weak and ineffective Council for Inter-Ethnic Relations. The purpose of the Committee is to settle disputes on issues affecting inter-community relations and regarding laws directly affecting the minority communities. The members of the Committee, to be elected by parliament from among its members rather than proposed by the president, are to consist of equal numbers of ethnic Macedonians and ethnic Albanians (seven each), and one member each from among ethnic Turks, Vlachs, Roma, and two other communities.36 Although one purpose of the Committee on Inter-Community Relations is to ensure that the concerns of the smaller minorities are heard, the influence of such minorities has been reduced relative to their previous position in the Council for Inter-Ethnic Relations, which had included two members each from the Macedonian, Albanian, Turkish, Vlach, Romani, and 36

If there are not enough members of parliament representing these communities, the Public Attorney/ombudsman may appoint persons from outside following consultation with the relevant community leaders.

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‘other’ nationalities.37 In this sense, one of the major mechanisms of power-sharing in Macedonia effectively increases ethnic Albanian representation at the expense of the representation of the smaller minorities. The Public Attorney (i.e., ombudsman), on the other hand, can be viewed as a more equitable arbitrator among ethnic communities insofar as election to the position follows from a majority vote in parliament, also including “a majority of the votes of the total number of Representatives claiming to belong to the communities not in the majority in the population of Macedonia.”38 On the whole, however, the (incomplete) power-sharing arrangement established by the Framework Agreement reduces the influence of Macedonia’s smaller minorities in favour of the ethnic Albanian community. 5 Segmental Autonomy Absent from the provisions of the Framework Agreement is any form of segmental autonomy, either territorial or cultural/personal. A crucial element of power-sharing arrangements, segmental autonomy gives the parties involved in power-sharing rights to manage their own affairs in certain policy areas (e.g., culture, education, economy, health services, security). While territorial autonomy would have been theoretically possible for the western portions of the country in which ethnic Albanians are concentrated, the Macedonian government viewed such an arrangement as unacceptable on the grounds that it could serve as a first step towards secession. Moreover, a simple territorial arrangement would not have satisfied the Albanian side concerned primarily with greater participation in the affairs of the state. However, while the planned decentralization does not give ethnic Albanians group autonomy, it is intended to increase their room for manoeuvre by way of ethnically neutral mechanisms; by calling for the transfer of competencies from the central government to the local governments, the Framework Agreement facilitates ethnic Albanian self-government in municipalities where ethnic Albanians constitute the local majority. A summary review of the five elements of power-sharing as they apply to Macedonia provides a neat demonstration of the incompleteness of the power-sharing arrangement promulgated in the Framework Agreement. First, while the document does nothing to prevent continuation of the informal power-sharing at the executive level that has characterized Macedonian politics since independence and may indirectly encourage such continuation through a proportional electoral system that increases ethnic Albanian representation in parliament, this central element of consociational democracy has not been embodied in legislation. By way of contrast, veto rights, another central element of power-sharing, have been encoded in the various requirements for double majorities in parliament, while both the Committee on Inter-Community Relations and the institution of the 37 38

Also included on the Council for Inter-ethnic Relations was the President of the Assembly of the Republic of Macedonia. See Article 78 of the 1991 Constitution. Constitution of the Republic of Macedonia (2001), Article 77, at http://www.sobranie. mk/Eng/rule.htm.

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ombudsman constitute formal mechanisms of arbitration. On the other hand, while the Framework Agreement also calls for proportional representation in state institutions and public administration, implementation in this area has thus far been limited mostly to formal party politics. Possibly the most conspicuous omission in the Framework Agreement, however, is that of any provision for segmental autonomy, territorial or otherwise. In light of the above, even if it were implemented consistently, the Framework Agreement could not produce a full-fledged power-sharing arrangement; not only are some essential elements of power-sharing missing, but there are major contradictions that prevent this document from being a formal power-sharing arrangement. Perhaps most problematic is that the groups concerned by the arrangement are not specifically named. While the measures outlined in the Agreement clearly relate to the country’s two largest groups (i.e., ethnic Macedonians who constitute the majority, and ethnic Albanians, who constitute the only minority that comprises more than 20% of the general population of the country), the constitutional amendments proposed in the Framework Agreement seek to do away with distinctions based on ethnic differences by eliminating explicit references to concrete ethnic groups. Given the various ethnic communities’ respective numbers and the fact that Macedonia’s political system is based on ethnic parties, the Framework Agreement can at most enforce what was previously an informal power-sharing arrangement limited to ethnic Albanians and ethnic Macedonians, and only at the executive level. D

Vertical and Horizontal Aspects of the Arrangement

Not outlining all of the legislation for which it calls, the Framework Agreement provides little information as to how power will be divided vertically other than regarding issues such as control of the local police. Nonetheless, the Agreement suggests that local governments will enjoy greater influence in the areas of culture, education, environmental protection, health care, local economic development, planning (both urban and rural), public services, and social welfare. The Framework Agreement also foresees decentralization in the area of human and minority rights, as the Public Attorney is expected to establish decentralized offices. Language matters are also to be decentralized to the extent that municipalities may decide on the languages to be used in their administrative organs. If the Framework Agreement provides some indication as to how power will be divided vertically, it also suggests by omission that there will be no corresponding horizontal division, for the document makes no mention of dividing jurisdictions between ethnic Macedonians and ethnic Albanians. While the Framework Agreement leaves room for speculation as to which ministries will be headed by Albanians, such speculation was equally possible in the period preceding the conflict.

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E

Conditions Affecting Successful Implementation of Power-sharing

The conditions for implementing any form of power-sharing in Macedonia have generally been unfavourable (Schneckener 2000: 10-18). Reached through external pressure rather than internal compromise, the Framework Agreement is viewed by considerable segments of the ethnic Macedonian population as a bitter pill Macedonia was forced to swallow by pro-Albanian Western actors. Implementation of the Framework Agreement is also likely to be hindered by the presence of mutually reinforcing cleavages in Macedonia’s general population, as ethnic differences are generally reinforced by linguistic, religious, and socioeconomic differences. Moreover, neither ethnic Macedonian nor ethnic Albanian political elites have had the unilateral support of their respective ethnic communities. Also problematic for the implementation of a power-sharing agreement is the exclusion of one of the parties to the conflict – the NLA – from the negotiations to end the conflict. Thus, the Framework Agreement can be seen as an externally imposed solution on two levels: first by the international community on Macedonia as a whole, and second by the parliamentary political parties on the NLA. Moreover, the success of the parliamentary parties in bringing the fighting to a conclusion despite the NLA’s absence from the negotiations combined with various features of the conflict (e.g., the relatively low number of casualties and the fact that the fighting began in the wake of a major government corruption scandal) tend to support the position of some observers that the armed conflict had in fact been staged (e.g., Vankovska 2002: 7-8; International Crisis Group 2002a). V

Reactions to the Framework Agreement

A

Reactions of Domestic Politicians

Prime Minister Ljubčo Georgievski repeatedly sought to distance himself from the terms of the Framework Agreement, which he claimed to have signed under international pressure, and then only as leader of VMRO-DPMNE. Georgievski also displayed outrage when DPA leader Arben Xhaferi addressed the press in Albanian immediately following the signing ceremony of 13 August 2001. On 3 September 2001, Georgievski declared in parliament that to approve the Framework Agreement would send a message that terrorism pays. Unlike Georgievski, President Trajkovski made some effort to defend the Framework Agreement itself, describing it in his 31 August 2001 address to the Macedonian parliament as a path chosen by the legitimately elected leaders of a large number of citizens, both ethnic Macedonian and ethnic Albanian. Trajkovski’s main argument, however, was that the Framework Agreement was the only alternative to civil war. SDSM, on the other hand, generally reacted positively and refrained from criticizing the Framework Agreement. On the ethnic Albanian side, the defence of the Agreement by DPA and PDP was lukewarm. Finally, representatives of some of the country’s smaller minorities – particularly ethnic Turks and Roma – expressed

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concern that the Framework Agreement would lead to the neglect of their needs in a new bi-national order. It is extremely likely that Georgievski’s efforts to undermine the legitimacy of the Framework Agreement hurt the document in the eyes of many segments of Macedonia’s general population. Moreover, even if Georgievski and other domestic politicians had wished to sell the Agreement to their constituents, their task would be made more difficult by the fact that most politicians have lost legitimacy in the eyes of the people. A poll conducted in 2001 confirms this trend, also showing that neither belligerent rhetoric nor a more compromising approach bore fruit as all four political parties involved in the talks lost popularity.39 Even more significant is that one third of all people planned not to vote at all (31.6% of ethnic Macedonians, 14.3% of ethnic Albanians) in the next parliamentary elections. The disposition to boycott was strongest in the Turkish ethnic community (50%), a reflection of ethnic Turks’ disaffection with the Macedonian-Albanian political debate. However, voter turnout of nearly 75% in September 2002 confounded these earlier, more pessimistic predictions about the elections. B

Reaction of the NLA

Although the non-participation in the negotiations of one party to the conflict – the NLA – would normally be considered a negative factor, the NLA’s indirect involvement through a NATO liaison seems to have secured its support for the Framework Agreement. Thus, despite the fact that one of his main demands (i.e., a transfer of control over the police to the municipalities) was not satisfied, NLA leader Ali Ahmeti indicated on 20 August 2001 that he was satisfied with the Agreement and that the NLA would surrender its weapons. C

Legitimacy of the Framework Agreement in the Eyes of the Population

Most problematic is that the Agreement was reached through strong external pressure on seemingly unwilling political actors rather than through internal compromise. Additionally, the Framework Agreement contains many measures that are unpopular with ethnic Macedonians, and there has been little support for it in the Macedonian-language press (which has termed it the ‘Macedonian Dayton’ and even compared it to the 1938 Munich Agreement). Moreover, while the change to the Preamble proposed in the Agreement is offensive to many ethnic Macedonians as well as to the smaller minorities, it also does not satisfy the demands of the ethnic Albanians for a bi-national state.40 The low degree of sup39

Poll published on 20 August 2001 by the Skopje daily Utrinski Vesnik, cited in RFE/ RL Balkan Report, 5.60, 24 August 2001. 40 According to a poll from early May 2001, 83% of ethnic Macedonians said they were against a revision of the Constitution while 77% of ethnic Albanians believed immediate changes were necessary (poll conducted by the Center for Ethnic Relations in Skopje, published in Utrinski Vesnik on 30 May 2001, cited in “Macedonians Against,

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port among the ethnic Macedonian population may also be related to the failure of the government to explain the implications of the measures proposed; there has been little debate in the media (even in the Albanian-language media) on the actual implications of the measures proposed, leading to misunderstanding about the actual implications for the Macedonian state (Rusi 2001). Thus, the poll of August 2001 indicated that two thirds of ethnic Macedonians believed that decentralization would lead to federalization, which they equated with an eventual dissolution of the state. Nonetheless, it should be noted that the Framework Agreement is supported by a significant segment of the ethnic Macedonian population. A poll taken in September 2001 indicated that while 50.7% of ethnic Macedonians opposed the peace plan, 43.7% approved of it.41 Also providing some indication of ethnic Macedonian support for the Framework Agreement is SDSM’s clear victory in the 2002 parliamentary elections. The September poll indicated considerably stronger support for the accord among ethnic Albanians (78% in favour, 12.9% against). D

Reaction of the International Community

The international community was unanimous in welcoming the Framework Agreement and in insisting that it be implemented as soon as possible. In particular, the EU, USA, and NATO responded quickly and favourably to the signing of the document, with the UN issuing a statement on the same day the Framework Agreement was signed. International human rights organizations, such as Amnesty International (AI), also welcomed the Framework Agreement out of a belief that the document would redress past human rights abuses and institutionalized discrimination. At the same time, AI and others expressed concern over the implications of some of the constitutional amendments for the rights of Macedonia’s smaller ethnic minorities.42 VI Implementation of the Framework Agreement Implementation of the Framework Agreement involves a series of complex processes, each of which represents a potential obstacle to successful conflict resolution. Additionally, not all of the legislation adopted since the signing of the Agreement is consistent with the provisions of the Agreement. Thus, not only do the elements of power-sharing outlined in the Framework Agreement fall short of a full-fledged power-sharing arrangement, but the measures enacted to impleAlbanians for Changes of Constitution,” MILS News, 6 June 2001, at http://groups. yahoo.com/group/balkanhr/message/2306. 41 Poll published in Utrinski Vesnik and cited in “Macedonian Poll Shows Depth of Ethnic Divide,” RFE/RL Newsline, 4 September 2001. 42 See Amnesty International news releases of 15 August, 7 September, and 10 September 2001, at http://web.amnesty.org. Also, see the statements by the Budapest-based European Roma Rights Center, at http://www.errc.org.

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ment the Agreement also reflect additional compromises among parliamentary actors in Macedonia concerning the terms of the document. A

NATO’s Operation “Essential Harvest”

The first step taken by the international community to assist with implementation of the Framework Agreement was to disarm the NLA. After NATO had secured an agreement to disarm from the NLA and President Trajkovski had secured parliamentary approval for an amnesty, the North Atlantic Council authorized the deployment of 3,500 NATO troops to Macedonia. Operation ‘Essential Harvest’ (27 August–26 September 2001) was a ‘soft’ mission to collect and destroy 3,300 weapons voluntarily surrendered by the NLA. By 26 September, NATO had actually exceeded its mission, collecting and destroying 3,875 weapons. From its inception, Operational Essential Harvest was criticized by Macedonian politicians and the Macedonian-language press as an essentially symbolic mission rather than a genuine effort to disarm the NLA. Presumably because of Macedonian authorities’ perception that the international community would dictate the terms under which it would move toward implementation of the Framework Agreement, the Macedonian government apparently never prepared its own plan for disarming the NLA. Within the broader ethnic Macedonian population, on the other hand, there were widespread fears that NATO intervention would lead to the creation of an international protectorate (as in Kosovo) or to territorial division along ethnic lines (as in Bosnia) by helping the NLA to secure control over portions of Macedonian territory. Thus, on 11 September 2001, major Macedonian dailies ran editorials expressing concern that the country might soon be forced to accept a new international force, possibly leading to the partition of Macedonia along ethnic lines.43 The number of weapons to be collected also sparked controversy, for the Macedonian government estimated the NLA stockpile to be as high as 60,000. It was argued that even if the majority of weapons was collected that the NLA could easily procure more from Kosovo and other sources. Further complicating matters was the need for NATO to synchronize the collection of weapons with the debates over the Framework Agreement in parliament; whereas the Macedonian government had demanded that all weapons be collected before parliament would start debating the Agreement, the NLA wanted the constitutional amendments to be adopted as weapons were surrendered. Among the ethnic Macedonian population, strong negative perceptions of NATO date back to the NATO bombing of Serbian forces in Yugoslavia during the 1999 Kosovo crisis. As with many other issues, the position of the ethnic Albanian population was radically different: it strongly supported NATO’s involvement and hoped that it would protect ethnic Albanians against harassment by Macedonian security forces. According to the May 2001 poll cited above, 57.9% of ethnic Macedonians said they did not trust NATO while 76.3% of ethnic Al43

See “Macedonia ‘On Horns of Dilemma’, ” RFE/RL Newsline, 12 September 2001.

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banians did. Thus, whereas many ethnic Albanians see the Framework Agreement and NATO’s role in promoting it as important victories in the (continuing) battle for improved status in Macedonia, a large number of ethnic Macedonians view the Framework Agreement as a defeat at the hands of not only the ethnic Albanian population, but also the international community. In this manner, the mutual reinforcement of common ethnic Albanian and ethnic Macedonian perceptions concerning the partiality of the international actors responsible for the Framework Agreement poses a significant threat to the implementation of the power-sharing arrangement outlined in the document. B

Preliminary Steps towards Implementation: August–November 2001

From the outset, the adoption of the constitutional amendments and other legislative modifications promised to be a long and difficult process complicated by the strong opposition of many ethnic Macedonian deputies, particularly representatives of VMRO-DPMNE and parliamentary speaker Stojan Andov (LP). Further, although DPA, PDP, and SDSM were generally in favour of the proposed amendments, many deputies were afraid of supporting the Framework Agreement for fear of appearing insufficiently patriotic.44 Another complication was that the amendments, originally proposed in English, had to be translated into an acceptable Macedonian version. The day after NATO completed the first phase of Operation Essential Harvest, parliament began debating the Framework Agreement. The first day of parliamentary debate, 31 August 2001, did not bode well, with Stojan Andov delaying discussion in response to a demonstration outside the parliament building, then setting new conditions to be met by the NLA to allow for the return of displaced civilians before deliberation would continue. Despite predictions to the contrary, however, parliament approved the Framework Agreement on 6 September. Of the 112 deputies voting, 91 voted in favour, 19 voted against, and 2 abstained. On 7 September 2001, NATO’s Task Force Harvest embarked on Phase 2 of the weapons collection – to gather an additional third of the weapons while parliament began debating the constitutional amendments. Six days later, NATO announced that Phase 2 was complete, with the weapons tally at 2,200. Instead of proceeding with adopting the amendments, however, parliament began debating a referendum on the Framework Agreement, a move which threatened to significantly delay the legislative process (as a simple majority is sufficient to call a referendum). This debate, too, was suspended after DPA leader Xhaferi raised the possibility of holding a separate referendum to decide on which constitutional changes the ethnic Albanian community wanted. Xhaferi was aided in his effort to stall the debate over a referendum by the SDSM leader Branko Crvenkovski, 44 At the time of the debates in parliament over the Framework Agreement, VMRODPMNE occupied 47 of the 120 seats in the Macedonian Assembly, while the two ethnic Albanian parties occupied an additional 25. SDSM, on the other hand, held 27 parliamentary mandates.

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who threatened that his party would leave the governing coalition if parliament decided to hold a referendum. NATO Secretary-General Robertson travelled to Skopje on 14 September to ensure that the political aspect of the implementation process would move on. According to Andov, however, the second phase of the parliamentary debate would end on 20 September without the adoption of the constitutional measures, which would have to wait until all weapons were collected and Macedonian forces had moved back into the NLA-controlled areas. The issue of a referendum was finally set aside on 18 September and parliament returned to the constitutional amendments. As an illustration of the difficulties encountered in approving the amendments, one can cite the proceedings of 21 September 2001. On that day, parliament approved amendments on the preamble of the Constitution, on provisions regulating the use and status of the Albanian language (Article 7), and on provisions regarding the equitable representation of minority communities in state institutions (Article 8). Each of these measures was adopted with a majority of sixty-two votes. By way of contrast, the proposed changes to Article 19 on the status of the Macedonian Orthodox Church failed to pass by one vote. While the amendments were supported by the SDSM, PDP, DPA, Liberal Democrats (LDP), and LP, ten VMRO-DPMNE deputies also voted in favour. About thirty VMRO-DPMNE deputies voted against, along with VMRO-VMRO, DA, New Democracy (ND), and Amdi Bajram (SRM), who apparently objected to the removal of a reference to Roma as a “nationality” in the preamble of the Constitution. Despite the delays, NATO announced that it would proceed with the third and final phase of weapons collection. For its part, the NLA stated that it would surrender the remainder of its weapons. As news came on 24 September that the 3,300 weapons had already been collected, parliament adopted the package of fifteen constitutional amendments as well as the new preamble by a narrow majority (sixty-eight in favour, twenty-four against and four abstentions). In October 2001, the third phase of the parliamentary debate (i.e., the process of ratification) was slowed as the media (particularly television) launched an extensive public discussion on the provisions of the Framework Agreement. At roughly the same time, Andov raised the issue of a referendum again, while President Trajkovksi and SDSM proposed changes to the proposed amendments. Ethnic Albanian deputies, on the other hand, boycotted some sessions of parliament in protest against piecemeal discussion of the amendments. Following visits by the EU Commissioner for External Relations Chris Patten and by Javier Solana, the parties reached a new compromise (albeit over PDP objections). Even amid the ongoing wrangling in parliament, there were some positive developments on the security front. On 9 October 2001, President Trajkovski – with the backing of the Macedonian government – declared an amnesty for NLA fighters not guilty of war crimes. In light of the high degree of ethnic polarization surrounding the issue of amnesty, Trajkovski’s declaration constituted

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a significant event.45 Still, the ethnic Albanian parties in parliament called for stronger guarantees in the form of a law. Another positive development was the deployment (beginning on 22 October 2001) of ethnically mixed police patrols (accompanied by NATO troops and OSCE monitors) in some villages in the crisis areas. Additionally, the Ministry of Defence announced the demobilization of approximately 1,200 reservists. On 1 November 2001, parliament resumed discussion of the package of fifteen constitutional amendments. Two weeks later, in a surprise vote held shortly after midnight to avoid demonstrations, the Macedonian Assembly ratified a new Constitution containing the fifteen amendments with a comfortable two-thirds majority (ninety-four deputies in favour, fourteen against). The ratification came just three days after some of the worst incidents since the signing of the Framework Agreement, involving ethnic Macedonian civilian hostages as well as both Macedonian police (including the special units called ‘Lions’ and ‘Tigers’) and the NLA. In combination with discussions with the new EU representative in Skopje, Alain Le Roy, the violence of 11–12 November played an important role in convincing PDP to abandon its opposition to the new preamble. C

Legal Measures Adopted in Implementing the Framework Agreement

1 The 2001 Constitution The Macedonian Assembly adopted an amended Constitution on 15 November 2001. Contrary to the provisions of the Framework Agreement, which had called for an ethnically neutral preamble, the version adopted as Amendment IV refers to “[t]he citizens of the Republic of Macedonia, the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romani people, the Bosniak people and others.” (Constitution of the Republic of Macedonia 2001). While the new preamble does away with the term “national state” used in the preamble of 1991, it also gives pride of place to “the Macedonian people” in the list of peoples. In tension with this apparent priority, however, is the use of the term “people” in reference to the other groups mentioned in the Preamble. While this would seem to indicate a promotion from these groups’ prior status as ‘nationalities’, reference to these same groups as “communities” elsewhere in the Constitution (see, for example, Amendment VIII, which replaces Article 48) further confuses the issue. Overall, the preamble of 2001 suggests that Macedonia is neither a civic state, nor a nation-state, nor yet a bi-national state. Whereas the Framework Agreement proposed to regulate relations among religious communities by extending privileged status to Macedonia’s Muslim and Catholic populations as well as to the Macedonian Orthodox Church, Amendment VII to the Constitution takes this approach further by incorporating additional groups. Thus, rather than employ terminology that would allow all religious 45

According to the poll of May 2001, 81.8% of ethnic Macedonians opposed granting amnesty to NLA fighters while 98.4% of ethnic Albanians favoured amnesty.

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communities to enjoy the same status, Amendment VII mentions “[t]he Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelical Methodist Church, the Jewish Community and other Religious communities and groups.” In this manner, Amendment VII extends privileged status to Macedonia’s Jews and Methodists as well as to the groups enumerated in the Framework Agreement, leaving intact the possibility for discrimination against smaller religious communities. Other constitutional amendments adopted on 15 November 2001 are consistent with provisions outlined in the Framework Agreement and discussed above. These include measures related to the use of minority languages in an official capacity (Amendment V), measures to prevent ethnic Albanian deputies from being outvoted in the adoption of future legislation (Amendments X–XII and XIV–XVI), measures to bring about proportional representation in public life in general as well as in public administration in particular (Amendments VI, XI, and XII), and measures concerning arbitration mechanisms in the form of the Public Attorney and the Committee for Inter-Community Relations (Amendments XI and XII, respectively). 2 The Law on Local Self-government of 2002 Missing the 27 September 2001 deadline by nearly four months, the new Law on Local Self-Government was passed on 22 January 2002 by the two-thirds majority required in Amendment XVI to the Constitution.46 As stipulated in the Framework Agreement, the 2002 Law endows the municipalities with a larger set of competencies relative to the 1995 law of the same name, including public services, urban and rural planning, environmental protection, local economic development, culture, education, social welfare, and health care.47 Additionally, the Law enacts elements of the Framework Agreement in its provisions for the use of Macedonian and minority languages (Articles 89 and 90), in requiring double majorities for local regulations concerning culture, languages, and alphabets used by less than 20% of the citizens of a given municipality (Article 41), and in calling for the establishment of a Committee for Inter-Community Relations in each municipality in which more than 20% of the inhabitants “are members of a certain community” according to the most recent census (Article 55). Although the committees are to consist of “an equal number of representatives from each community represented in the municipality,” the Law provides no indication as to how to determine what constitutes a community which must then be represented. Anticipating a still forthcoming law on municipal boundaries, the Law on Local Self-Government of 2002 also contains provisions concerning appropriate grounds for the creation of new municipalities: 46 Official Gazette of the Republic of Macedonia 5/2002. An English translation of the law is available at http://www.ecmi.de/emap/mk_CO4_O4b01.html. 47 For an analysis of administrative centralization in Macedonia before the 2002 Law on Local Self-Government, see Popovski and Panov 1998.

9  Power-sharing in Macedonia? The territory on which a municipality is established should represent a naturally, geographically and economically linked entity, with communication among populated places and gravitation towards the common center, and it should have infrastructure facilities as well as facilities of social standard built therein (Article 17; see also Article 16).

Reactions to the Law on Local Self-Government have been mixed, with some ethnic Macedonians claiming that the new legislation goes too far in reducing central control while some ethnic Albanians maintain that Skopje retains too much power.48 Insofar as municipalities in Macedonia – regardless of the ethnic composition of the local population – had suffered under the previous legal order from a dearth of competencies, the 2002 Law on Local Self-Government seems to constitute a major improvement. Nonetheless, the actual functioning of the municipal governments with their newly acquired powers will depend in large part on the definition of local populations in the forthcoming law on municipal boundaries, as well as on pending legislation concerning the financing of the municipalities. 3 The Law on Amnesty Another major piece of legislation related to implementation of the Framework Agreement is the Law on Amnesty of 26 February 2002.49 Although no mention of an amnesty was made in the Framework Agreement, it was promised by President Trajkovsi on 30 May 2001 as part of his peace plan. The chances of a resumption of violent action remained high as long as an amnesty had not been declared, for the absence of such a declaration added to the general climate of uncertainty over the future of former NLA fighters.50 Due to fears of being arrested if they returned home, many NLA fighters seemed to be seeking refuge in Kosovo, taking their weapons with them (Wood 2001). Others were reportedly firing on Macedonian forces seeking to regain control of areas formerly held by the NLA. Clashes were thus reported between the NLA and government forces in September and early October of 2001 as Macedonian police sought to move into these areas despite NATO’s appeal to the Macedonian government to refrain from sending its forces until an amnesty was in place. Passed for the explicit purpose of reintegrating into normal life participants in the conflict that led to the Framework Agreement, the Law on Amnesty exempts from prosecution persons who committed acts not falling under the jurisdiction of the Hague Tribunal (Article 1). Additionally, the amnesty law terminates criminal proceedings against those same persons while providing full exemption from 48 “Macedonian Government Passes Local Autonomy Law …”; “… As Controversy Remains,” both RFE/RL Newsline, 25 January 2002. 49 Official Gazette of the Republic of Macedonia 18/2002. English translation at http:// www.ecmi.de/emap/mk_C04_04b01.html. 50 Whereas some KLA fighters were integrated into local police forces in Kosovo, there are no similar provisions for these (mostly) young men in Macedonia.

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serving any time in prison for their involvement in the conflict. Also covered by the amnesty are persons who did not report for duty in the Macedonian army as well as those who deserted it in the course of the conflict (Article 2). Finally, the Law reduces the sentences of most of the general prison population by 25% (exceptions include persons convicted for crimes against humanity, involvement in the narcotics trade, and persons sentenced to life terms) in an attempt to prevent “mutiny with unwanted material and human consequences” (Article 3). 4 Electoral Legislation On 25 and 26 June 2002, the Macedonian Assembly passed a package of electoral laws, including the Law on Election of Members of Parliament of the Republic of Macedonia, the Law on Voters’ List, and the Law on Election Districts for Election of Members of Parliament of the Republic of Macedonia.51 Required by the Framework Agreement by the end of 2002, the Law on Election Districts divides Macedonia into six districts of approximately equal population.52 The Law on Election of Members of Parliament stipulates that the Assembly’s 120 deputies will be elected from the six districts on rigid party lists using the D’Hondt formula of proportional representation (PR) (Articles 2, 83, 96). In so doing, the new Law on Election of Members of Parliament departs from its predecessor, which provided for the distribution of eighty-five parliamentary mandates by a majority run-off system and thirty-five mandates by fixed-list PR in a single, state-wide district.53 5 The Status of the Albanian Language On 19 June 2002, the Macedonian parliament adopted nine laws aimed at making Albanian an official language. Not addressed by this legislation was the use of the Albanian language on passports.54 Following repeated disputes in parliament, on 13 March 2003 SDSM, LDP, and DUI struck a compromise by which ethnic Albanian citizens of Macedonia could apply for passports with the Albanian language on the cover in addition to the standard Macedonian and English inscriptions.55 In return for this concession, the DUI abandoned its demand that the use of Albanian be allowed for chairing debates in parliament and meetings of parliamentary committees.

51 52 53 54 55

Whereas the first two laws were published in Official Gazette of the Republic of Macedonia 42/2002, the Law on Election Districts was published in Official Gazette 43/2002. For a map of the new districts, see http://www.dik.mk. “Zakon za izbor na pratenici vo Sobranieto na Republika Makedonija,” Služben vesnik na Republika Makedonija 28/1998. Legislationline Newsletter, 4, 4 September 2002, at http://www.legislationline.org. “Compromise Reached over Language Issue in Macedonia,” RFE/RL Newsline, 14 March 2003.

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D

Pending Legislation Affecting Implementation of the Framework Agreement

While the above discussion demonstrates that the Framework Agreement has not been ignored in the Assembly of the Republic of Macedonia, much remains to be done for the accord to be fully implemented, with a plan drafted on 26 December 2002 by Macedonian officials in the presence of EU special representative Alexis Brouhns, as well as US Ambassador Lawrence Butler, outlining necessary amendments to over ninety laws to this end (Saskova and Janeva 2003). Of the pending legislative changes, a set of proposed amendments to the 1992 Law on Citizenship stands out as particularly sensitive, as approval of these changes would allow many ethnic Albanians originally from Kosovo, who had been excluded by the law, to become Macedonian citizens.56 The proposed changes are likely also to affect considerable numbers of Roma and ethnic Turks. E

The Role of International Actors

Recognizing the need for international aid in implementing the Framework Agreement, Annex C of the Agreement calls for extensive international support. International monitors are invited to go to the sensitive areas, and international support is requested for facilitating the return of refugees and reconstruction. Also requested is aid in strengthening local self-government as well as in training local police, minority lawyers, and judges. Additionally, Annex C calls for aid to projects aimed at strengthening the media. Even before the drafting of the Framework Agreement, the OSCE had been actively involved in the crisis areas. Following an official invitation by the Macedonian foreign minister to assist with implementing the Agreement,57 the OSCE announced on 1 October 2001 that the size of the Mission in Skopje would be increased from 51 to over 200 international monitors. These monitors have been involved in confidence-building and police training as well as in reporting on humanitarian issues. Ambassador Van der Stoel, whose discrete role of facilitator and source of advice in the internationally sponsored talks was recognized by the US and EU representatives, also continued to be involved, along with the OSCE Chairman-in-Office. As past experience in Macedonia has shown, international monitors have an important role to play in parliamentary elections and the population census. Held on 15 September 2002, the most recent parliamentary elections in Macedonia have been evaluated considerably more favourably by domestic as well as inter56 57

Some ethnic Albanians claim that the requirements of the 1992 citizenship law resulted in the exclusion of over 100,000 ethnic Albanians. Speaking in Vienna on 30 August 2001, the Macedonian Minister of Foreign Affairs, Ilinka Mitreva, commended the OSCE’s efforts in Macedonia and called for the OSCE’s further involvement in monitoring through the OSCE Mission as well as for assistance in implementing Annex C of the Agreement.

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national observers than had any of the elections previously held there. Running in an electoral coalition with several smaller parties, including parties representing Bosniaks, Roma, Serbs, Turks, and Vlachs (among others), the SDSM under Branko Crvenkovski won a narrow majority in parliament. Although Macedonia lacks special provisions to facilitate the entry of minority parties into parliament, cooperation with SDSM resulted in the election to parliament of several candidates representing minority political parties, including Neždet Mustafa of the United Party of Roma of Macedonia (OPRM in Macedonian, PPRM in Romani).58 On the other hand, the change to a pure proportional electoral system is likely to have been responsible for another Rom, former MP Amdi Bajram (SRM), not being re-elected. Originally scheduled for May 2001, the population census was initially postponed to October 2001 due to the crisis. Although this date is reiterated in the Framework Agreement, additional postponements followed, with the census conducted only in the last quarter of 2002.59 Insofar as it has the potential to settle the sensitive issue of the size of Macedonia’s various ethnic communities, the census constitutes an essential element of the current reforms. While the results of the census have not been released as of March 2003 (and no information is available as to when the results will be released), preliminary indications are that radical departures from the results of the last (1994) census are few and not significant for the overall implementation of the Framework Agreement. Another sensitive task yet to be undertaken will be the redrawing of municipal boundaries, due to be conducted under international supervision within one year of completion of the census. Some experts have expressed concern that the new boundaries might be drawn with the aim of obtaining ethnically pure municipalities, thereby reinforcing the divide between ethnic groups. Apart from ethnic Albanians, it is likely that only ethnic Turks and Roma will qualify for the 20% threshold, as other minorities are either too small or too highly dispersed throughout the country. Nonetheless, a municipality dominated by one ethnic group could decide to allow the use of another group’s language, and in so doing provide an indication of interethnic accommodation and allay concerns regarding the rights of other ethnic communities under a given local ethnic majority. F

Financial Assistance from the International Community

Implementation of the many measures contained in the Framework Agreement will be expensive. With this in mind, the EU promised large amounts of aid to Macedonia, including USD 27 million towards damages and infrastructure repair, USD 44 million in state budget support and USD 37.7 million as part of a 58 59

Prior to his election to parliament, Mustafa served six years as mayor of the Romanimajority municipality of Šuto Orizari on the outskirts of Skopje. The reason for the delay was that the census was to be held after the parliamentary elections, which were in turn dependent on the timely passage of relevant legislation (discussed above).

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broader package. The direct link between the process of implementing the constitutional and other legal changes proposed in the Framework Agreement to financial support from the international community for Macedonia was made clear by François Léotard, who stated on 2 October 2001 that the international donor conference foreseen in the Framework Agreement and scheduled for later that month was in jeopardy due to the delays by parliament (“no vote, no money”). That this was no idle threat was confirmed three days later when the EU called off the conference. As the EU Commissioner for External Relations, Chris Patten, said in Skopje on 4 October 2001, it was inconceivable for the EU to invite donors to write cheques to support a political agreement that has not yet been endorsed and implemented. Following re-evaluation of the situation in Macedonia, the postponed donor meeting was held in Brussels on 12 March 2002. The total contribution of the European Commission to Macedonia in 2001-2002 was EUR 188 million.60 VII Prospects for Durable Peace in Macedonia? A

The Possibility of Renewed Conflict

Although the level of social disorder has generally been low since the signing of the Framework Agreement, sporadic incidents – some of them involving special units of the police – have contributed to maintaining tensions. While most of the conflict’s refugees and internally displaced persons have returned to their homes, the process has been slow for fear that returnees’ security will not be guaranteed. It is therefore crucial that ethnic Albanians be incorporated into the local police force as quickly as possible to boost confidence among ethnic Albanian civilians.61 The continued presence of NATO forces, although they are not mandated to protect the civilian population, may also provide some reassurance. While the NLA’s cooperation in Operation Essential Harvest and its disbandment announcement of 27 September 2001 were favourable developments, doubts have persisted that former NLA fighters will integrate into normal life as peaceful citizens as per the instructions of their leader, Ali Ahmeti. Particularly troubling is the mysterious genesis of the ‘Albanian National Army’ (ANA or AKSH in Albanian) (Matoshi 2001),62 which rejected the Framework Agreement and claimed to be fighting for a Greater Albania, and also claimed responsibility for the seventeen Macedonian soldiers killed on 8 August 2001. Whatever the relationship between the ANA and the NLA, delays in parliament surrounding the implementation of the Framework Agreement could lead to frustration and renewed armed action. 60 See http://europa.eu.int/comm/external_relations/see/news/ip02_399.htm. 61 100 ethnic Albanians began police training on 17 September 2001. Within the first month, there were complaints of harassment of the new recruits by ethnic Macedonians in the force. 62 See also Rüb 2001; IWPR 2003.

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One of the principal aims of Ahmeti and others within the NLA was to carve for themselves a role in Macedonian political life in a context of decreasing legitimacy of the two main ethnic Albanian parties. Despite the fact that the NLA’s attempt to enter the Macedonian political scene by force was initially thwarted by a refusal to include the NLA in the negotiations that produced the Framework Agreement, Ahmeti has nevertheless succeeded not only in endearing himself to the international media, but also in founding a political party considerably more powerful than DPA or PDP after the 2002 parliamentary elections. It remains to be seen, however, what kind of role Ahmeti’s DUI will play in parliament and in the current SDSM-led government. On the Macedonian side, there may still be support for a renewed military offensive among hardliners seeking to improve their political ratings in the context of a serious erosion of political legitimacy, particularly among the losers in the parliamentary elections of 15 September 2002. Those in favour of a renewed conflict might be counting on the support of the ethnic Macedonian population and on the feeling that it has been forced to make unacceptable concessions to the ethnic Albanians under the threat of violence. Further, NATO envoy Peter Feith has relayed concerns about the presence of ethnic Macedonian paramilitaries near Tetovo and in other parts of the country. While the Macedonian government has consistently denied the existence of paramilitaries, it has also not collected all of the weapons distributed to civilians during the conflict. B

Fears of a Security Vacuum after the Departure of NATO

Concerns about a security vacuum following the end of Operation Essential Harvest were temporarily allayed when an agreement was reached on 27 September 2001 over a new NATO mission of 1,000 lightly-armed soldiers under the leadership of Germany. Operation ‘Amber Fox’, which took over immediately upon completion of Essential Harvest, was initially due to be active for three months, subject to renewal upon agreement by both sides. Amber Fox’s mandate was initially limited to guaranteeing the security of the EU and OSCE monitors who had gone to Macedonia to assist with the implementation of the Framework Agreement until the end of 2001.63 While the size of the new NATO force was more than the Macedonian government had wanted, it was also far from the large, longer-term NATO presence advocated by some international experts.64 Indeed, NATO, and particularly Germany, had insisted on 1,200 troops with an initial mandate of nine months. President Trajkovski, on the other hand, had asked for only 700 troops to stay for a period of three months. Also subject to dispute were the terms of the mandate, with an initial formulation envisaging NATO involve63

According to the head of Task Force Fox, its mission was: “Liaison and exchange of information with international organizations and Macedonian authorities; in emergency situations, after consultation with the Government as appropriate, to provide medical evacuation and extraction for monitors.” (NATO 2001). 64 See, for example, International Crisis Group 2001b; 2001c.

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ment in the implementation of the Framework Agreement and of the proposed constitutional changes. The formulation was dropped when some ethnic Macedonian politicians objected to giving the mission a political mandate.65 Additionally, the UN option preferred by President Trajkovski was not realized, as the UN Security Council seemed reluctant to take on a lead role.66 Nonetheless, a statement from the Security Council granted badly needed support to multinational efforts to establish a security presence in Macedonia. After staying through the September 2002 parliamentary elections as well as the census, Amber Fox was succeeded on 16 December 2002 by a smaller mission, called ‘Allied Harmony’, followed in turn by a handover of the military mission to the EU is pending, with the mandate of the EU mission tentatively set at six months.67 C

Impact of the Framework Agreement on Interethnic Relations in Macedonia

Insofar as the debate over Macedonia’s future involved only representatives of the country’s two largest ethnic groups, members of some of the smaller minorities – particularly Roma and ethnic Turks – were alienated by the negotiations. While the terms of the Framework Agreement provided some reassurance that Macedonia will not become a bi-national state, some representatives of the smaller minorities see the position accorded to ethnic Albanians in the new legal order as problematic. Still, it is to be hoped that the smaller minorities will reap some of the benefits negotiated by the ethnic Albanian parties, such as the measures to ensure adequate representation of non-majority communities in public bodies. As a sign of goodwill and commitment to the concept of a civic state, the ethnic Albanian representatives in government and in parliament would do well to seek also to take the interests of other minorities into account. Since the signing of the Framework Agreement, the position of the international community in general has been that implementation of the Agreement is the only current option for resolving the Macedonian conflict. However, considerably more explanation will be necessary if the provisions of the document are to be accepted by the general population in Macedonia. At the same time, although the population has exhibited a high degree of scepticism that the Framework Agreement will provide a durable resolution to the crisis, a poll conducted shortly before the signing of the Agreement indicated that most people believed that 65

“Macedonia – One Down,” Transitions Online, 25 September–1 October 2000, at http://www.tol.cz. 66 There were calls for reviving the UN Preventive Deployment Force (UNPREDEP), which had been successful in preventing spillover of conflict in the country from 1995 until February 1999 when a Chinese veto at the UN Security Council blocked the renewal of its mandate. UNPREDEP was preceded by the UN Protection Force (UNPROFOR), first deployed in January 1993. 67 “Skopje, Paris Agree to Limit EU Military Mandate in Macedonia,” RFE/RL Newsline, 3 March 2003.

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ethnic Macedonians and ethnic Albanians can still live together.68 Efforts must, therefore, focus on rebuilding trust between ordinary citizens, as dialogue at the local level will be indispensable for repairing the huge damage to interethnic relations caused by the conflict. A related step in conflict resolution will be to build on the existing (albeit tenuous) loyalties of both groups to the common state. Here, the positive example of restraint shown by local leaders in some multiethnic towns (e.g., Kumanovo) during the conflict offers grounds for cautious optimism, as does the orderly conduct of the September 2002 parliamentary elections. VIII Conclusion: An Arrangement Highly Dependent on International Support Well over a year after the signing of the Framework Agreement, Macedonia is at best in the very early stages of “the peaceful and harmonious development of civil society” that the document seeks by its own account to promote (Preamble). This being the case, it would be premature to call Macedonia – based on the provisions of the Framework Agreement – a successful complex power-sharing arrangement. Moreover, the provisions of the Framework Agreement are such that even their full and consistent implementation would not result in such an arrangement. These facts notwithstanding, however, the Framework Agreement remains at the centre of political life in Macedonia, and its continued implementation seems to provide the most favourable prospects for the country’s development as such. Here, the international community has a central role to play in maintaining a regional environment conducive to the Framework Agreement’s implementation. The conflict of 2001 has demonstrated that Macedonia exists at the mercy of destabilizing regional factors, with the situation of regional interdependence heightened by political instability and tense interethnic relations within Macedonia itself. Outstanding issues, such as the status of Kosovo, should therefore be resolved as soon as possible in order to enhance regional stability. In light of Macedonia’s precarious regional position, the continued implementation of the Framework Agreement depends in large part on international assistance. In particular, a NATO presence will likely be necessary to help Macedonian and Yugoslav forces to control the border regions and to prevent a build-up of forces by the NLA and other groups, as well as to stem arms trafficking, the drug trade, and other forms of illegal business. This task could also be carried out through a revival of UNPREDEP or another multinational force. Given popular views of NATO in Macedonia, the need for an international security presence must be explained to the population by political leaders on all 68 60% of both communities think that the two groups can live together in the future. 22% of ethnic Macedonian respondents do not believe in peaceful coexistence; 40% of ethnic Albanians did not know or did not respond at all (poll cited in “Macedonia: Peace Talks Successful, Civil War Inevitable?,” RFE/RL Balkan Report, 5.57, 7 August 2001).

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sides. At a minimum, this means presenting the positions of all parties in both the Macedonian- and Albanian-language media. Another way in which the international community can assist in enhancing Macedonia’s internal as well as external stability is by recognizing the country under its constitutional name, “the Republic of Macedonia” (particularly given repeated indications from Greece that the name dispute is near resolution). Settlement of this longstanding issue would greatly contribute to reducing the insecurity of the Macedonian people, thus improving the chances for success of any power-sharing arrangement. Additionally, Macedonia needs international financial assistance and expertise to enact reforms and to fight corruption, with financial and economic assistance packages needed to ensure resources adequate for implementing the provisions of the Framework Agreement as well as to bring about an improvement of the economic situation of all citizens. The end goal of this ensemble of measures should be Macedonia’s integration into European structures, with continued international aid part and parcel of the integration process.69

69 A significant step was the signing of a Stabilization and Association Agreement on 9 April 2001 between the EU and Macedonia. The Stabilization and Association Process was initiated by the EU during the NATO campaign in Kosovo as an upgrading of the EU’s Regional Approach to Southeastern Europe.

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Chapter 10 Gagauzia and Moldova: Experiences in Power-sharing Priit Järve

I

Introduction

Several syndromes are haunting the post-communist countries. One of the most paralysing is the ‘weak state syndrome’. As George Schöpflin points out, with the collapse of communism not only the ideology but also the communist state disintegrated. Despite their questionable legitimacy, the institutions that the communist state had established had provided a degree of order and coherence seen as ‘normal’ by many. Attempts to establish the authority of post-communist political formations could neither rely on the state, which had disintegrated, nor on civil society, which did not exist under communism (Schöpflin 2001: 8-9). Hence, post-communist politics and social-cultural coherence came to depend heavily on ethnicity, the third classic raison d’etre of traditional European polities. This point of departure for post-communist politics could not but give rise to feeble state institutions fortified by ethnonationalist rhetoric. This combination did not produce the order and coherence required for the normal and peaceful development of these societies. Instead, the ethnocultural preferences of ethnic majorities, imposed on the whole population in certain multiethnic countries, induced claims of smaller ethnic groups to share power through autonomy or to become independent altogether. The weak state institutions have been unable to defuse the resulting ethnopolitical tension and conflicts. In addition to initial ethnocultural disagreements, these conflicts have been fuelled by the opposing economic interests of emerging ethnic elites in the distribution of state property through privatization or otherwise. As weak state institutions seek to establish themselves by claiming as much power as they can, the atmosphere remains unfavourable for resorting to powersharing. For example, the aversion to territorial autonomies in Central and Eastern European countries is overwhelming. The Republic of Moldova, a post-Soviet country, reflects this general pattern. The ‘weak state syndrome’ has plagued Moldova ever since its independence in 1991. At the same time, Moldova is exceptional because in 1994 it legislated auMarc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 307-343

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tonomy for the territorial unit of Gagauzia (Gagauz-Yeri) implying codified power-sharing between the centre and the autonomous region. However, the conception of the Gagauz autonomy was closely related to the armed ethnopolitical conflict in the Moldovan region of Transdniestria in 1992, which deeply shocked the whole country. Thus, the creation of this autonomy was not a manifestation of a noble nationwide wish to be democratic and to share power, but rather one that sought to avoid the worst, a recurrence of the Transdniestrian scenario in Gagauzia. This aim has been achieved. However, the six years of Gagauz autonomy have shown, as some predicted, that the relations between the national government and the authorities of the autonomous region could not escape fundamental disagreements over vital aspects of the power-sharing. A weak state seems to be inherently unable to provide for a strong, well-functioning autonomy that enjoys clear-cut power-sharing arrangements with the centre. Logically, a weak state can only support a weak autonomy, as will be shown is the case for Gagauzia and Moldova. Another lesson of the last six years is that the interaction between Gagauzia and Transdniestria has remained an important factor in the domestic politics of Moldova. In 1994, it was the painful experience of the bloody conflict in Transdniestria that inspired the Moldovan authorities to accept the Gagauzian autonomy. Later, it was the ineffective implementation of the autonomy that gave Transdniestria reason for its refusal to negotiate any similar status within Moldova with the central government. II

Brief History

A

Outline of the Self-determination Dispute

There are two interrelated contexts that are vital for understanding this conflict and its settlement in Gagauzia. The broader context was an upsurge of nationalism in the so-called national republics of the Soviet Union before and after its  

Meaning the ‘land of Gagauz’ in Gagauzian and is locally used as the synonym for ‘Gagauzia’. In the summer of 1992, a full-fledged armed conflict broke out in the Dniester river valley. The army of the newly independent Republic of Moldova tried to clear the city of Bendery of forces from the breakaway Transdniestrian authorities. After a week of fierce fighting in and over this town in June 1992, the 14th Army of the Russian Federation, stationed on the eastern bank of the Dniester, intervened and ended by force the fratricidal operations of Moldovans and Transdniestrians. To the present day, no exact casualty figures exist. It is estimated that some 1,000 people were killed and some 100,000 were forced to flee their homes. In July 1992, a peacekeeping contingent of the Russian Federation was stationed along the Dniester Valley to control a Security Zone 225 kilometres long and 4 to 15 kilometres wide together with Moldovan and Transdniestrian army units. Since then, the conflict has remained frozen, though by no means resolved (Järve 1998: 6).

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dissolution, which did not leave Moldova untouched. The specific context was provided by an armed conflict between the central government of Moldova and the breakaway region of Transdniestria, which was to encourage a more constructive approach into the government’s policy towards its ethnic minorities and ethnopolitical conflicts. Allen H. Kassof, President of the Project on Ethnic Relations, notes that: “In every two-sided interethnic conflict there are at least four sides” (Kassof 2001: 2). He refers to the fact that both sides are usually divided, typically into ‘hawks’ and ‘doves’. The hawks from either side will thus attack any agreement between the doves. Usually, the hawks initiate the conflict and moderates or doves are needed to reach an agreement to regulate it. This is exactly what happened during the conflict in Moldova between Chisinau, the capital of Moldova, and Comrat, the largest town and administrative centre of Gagauzia. In 1989, the Popular Front of Moldova (PFM) started demanding that the Moldovan language (practically the same as Romanian) be constituted as the only state language of Moldova. At that time, similar demands were voiced in all the republics of the USSR by the respective popular fronts. Estonia had been the first to adopt a law on its state language in January 1989 (Grin 1991). Moldova followed suit on 31 August 1989. However, the PFM was not only anti-Moscow and anti-Russian, but also pro-Romanian, openly advocating Moldova’s merger with its neighbour. The non-Moldovan nationalities, who comprised more than one third of the country’s population, including the Gagauz, perceived this language policy as a threat to their cultural and political status quo. As a result, the non-Moldovans joined forces and started to pursue separatist policies. The two regions in Moldova with a high concentration of non-Moldovans – Transdniestria in the east and Gagauzia in the south of the country – opposed the policies of the PFM and demanded territorial autonomy. These claims produced two different, but interrelated, sequences of events, which have had a major impact on the development of Moldova ever since, turning it into an area of lingering ethnopolitical conflict. The Gagauz are a small Turkic-speaking (Gagauz) Orthodox Christian people, settled in what is now the southern part of Moldova, a territory of 1,831 square km (5.5% of the territory of Moldova). In 2000, there were 161,100 inhabitants in 



Several years later, the Popular Front of Moldova was characterized in the following way: “The Popular Front of Moldova (PFM), a political force associated with dramatic changes in the society, focused on ethnic problems. It promoted attention to these specific problems without contributing to the consolidation of the society. The achievement of a political goal in that period was associated, as a rule, with the notion ‘defeat your enemy’. Any hint of the need for dialogue or reasonable compromise was interpreted as treason and rejected from the start. (UNDP 2001a: 29). According to the census of 1989, Moldovans (Romanians) made up 64.5% of the population of Moldova, followed by Ukrainians (13.8%), Russians (13.0%), Gagauz (3.5%), Bulgarians (2.0%), Belarussians (0.5%), Roma (Gypsies) (0.3%), Germans (0.2%), Poles (0.1%), and others.

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Gagauzia, of which over 81.4% were ethnic Gagauz (3.8% of the country’s total population). Most (92%) consider Gagauz as their native language, but 73% also use Russian as a second language. Only 4%, however, speak Moldovan (Romanian). Having no kin-state, the Gagauz started to claim autonomy in 1989, but the moves to establish a separate administration were suppressed by Moldova. The confrontation deepened after the Republic of Moldova declared its independence on 27August 1991. According to the assessment of the OSCE (OSCE 1994a), shared by many experts, the language issue lies at the very origin of the conflict in Moldova. Similarly, in Transdniestria, the language legislation of 1989 is widely regarded as the cause of the subsequent political troubles and the armed conflict. Long before the declaration of independence and months before the possibility of unification with Romania was publicly discussed, the Moldovan language legislation became the clear signal for a process of emancipation from the Soviet legacy. On 30 August 1989, the Constitution of the Moldavian SSR was amended by Article 70, which decreed Moldovan (Romanian) written in the Latin alphabet as “the state language.” Russian was described as the interethnic “language of communication,” and the language of the Gagauz population was to be protected and developed. On the following day, the Law on the Use of Languages on the Territory of the Moldavian SSR was passed, stating that Russian would be used throughout Moldova on the same footing as Romanian, and that Romanian, Gagauz, and Russian would be the “official languages” in areas with a predominantly Gagauz population. The use of various minority languages (such as Ukrainian, Bulgarian, Yiddish) was also guaranteed. Article 7 of the law prescribes that persons holding positions in state administration and public organizations, which bring them into contact with citizens (public health, education, culture, mass media, transport, trade, services, etc.) must know Romanian, Russian, and, in areas with a Gagauz population, also Gagauz at a “level necessary for fulfilling their professional obligations.” Article 7, although seemingly balanced, had an asymmetric impact, as practically all Romanian speakers knew Russian, but not all Russophones were able to speak Romanian. Therefore, this article was perceived by Russian speakers on both sides of the Dniester river as an existential threat to their culture. By early 1992, Chisinau had practically lost its sovereignty over the territories of Transdniestria and Gagauzia. In March 1992, an armed conflict in Transdniestria broke out when the Dniester National Guard attacked a Moldovan police station in the town of Dubossary. The Moldovan president ordered counter attacks against the Transdniestrian separatists. Fighting spread quickly and also escalated in intensity. After weeks of fighting and many hundreds of casualties, the Russian 14th Army, which had remained stationed in Moldova from the Soviet period and had been officially neutral, under the leadership of the late General 

According to the data of the Gagauz local administration, in 2000, 81.4% of the population of Gagauzia were Gagauzians, 5.2% were Bulgarians, 4.6% were Russians, 4.4% were Moldovans, 3.3% were Ukrainians, and 1.1% were of other ethnic origin (UNDP 2001b: 20).

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Lebed intervened and stopped the armed conflict. In July 1992, the presidents of Moldova and Russia signed a ceasefire agreement in Moscow. The same month, a peacekeeping contingent of the Russian Federation was stationed along the Dniester valley, on both sides of the river. In the southern territories of Moldova where the Gagauz proclaimed and set up their own administrative institutions, the tension had already reached its peak in 1990. Nevertheless, the chances of resolving the conflict in Gagauzia by peaceful means were greater than in the case of Transdniestria, as armed clashes only occurred occasionally and did not escalate. Consequently, the death toll remained very low. In February 1994, the pro-Romanian PRM suffered a major defeat at the parliamentary elections. Then, in March 1994 over 90% of the population voted in favour of an independent Moldova in a consultative referendum. This meant that the voters were against a union with Romania. The newly formed coalition government, consisting of anti-unionist forces, was much more receptive to the concerns of the two breakaway republics than the previous one. It was also keen on resolving at least one of the ongoing disputes as soon as possible. A new Constitution of the Republic of Moldova was adopted in July 1994; Article 111 provided for the possibility of autonomy for the two regions of Moldova without naming them. On 23 December 1994, the parliament of Moldova adopted an Organic Law on the Special Legal Status of Gagauzia (Gagauz-Yeri) (hereafter referred to as the 1994 Law), which constituted Gagauzia as an autonomous territorial unit, granting the Gagauz people a form of self-determination within Moldova. In the legal system of Moldova, the organic law occupies a status between the Constitution and the ordinary laws. The 1994 Law is the most important legal document that defines, although in part ambiguously, the power-sharing between the central government of Moldova and the autonomous region. Since 1994, the autonomous region has been busy constituting itself. It elected its governing bodies and officials. By 1998, the People’s Assembly of Gagauzia, the highest legislative body of the autonomous region, had already passed more than fifty local laws. On 14 May 1998, the Gagauz People’s Assembly passed a Basic Law for Gagauzia. This Code of Gagauzia (Gagauz Yerin Temel Kanonu in Gagauz, Regulamentul Gagauz Yeri in Moldovan) specifies the rules laid down in the 1994 Law. So far, the Gagauzia power-sharing arrangement promulgated by the 1994 Law is the only case in Central-Eastern Europe and the former Soviet Union where territorial autonomy has been established for an ethnic group. B

Main Protagonists

The main protagonists are the different political movements (such as the Popular Font of Moldova (PFM) and the movement of Gagauz People) and elite groups representing the perceived interests of Moldova as a whole, on the one hand, 

Gagauz People (Gagauz Khalki) was the first Gagauz national movement.

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and those of Gagauzia, on the other hand. At the initial stage of the conflict, the respective movements played a very important role in mobilizing people on a large scale, creating paramilitary units, shaping the general political atmosphere and legitimizing the leaders of these movements. At a later stage, the opposition to these mass-led movements was transformed into an elite-led debate over the conception, articulation, and implementation of Gagauz autonomy. These protagonists, movements, and elites alike, were, in fact, the agents as well as the results of the disintegration of the Soviet Union. Both sides were represented by individuals who had been willing and able to become or stay politically active under Gorbachev’s policies of perestroika and glasnost. The Gagauzian side mostly included ethnic Gagauz, whose everyday language tended to be Russian. Many had held high positions in local Soviets and Communist Party organizations. People with similar Soviet political experience and affiliations took over the leading positions on the Moldovan side, though, in contrast to the Gagauzians, they knew Moldovan. Moldova was one of the cases that showed how the communist cadre policy of promoting the representatives of titular ethnic groups and/or nations (the policy of korenizatsiya, or ‘indigenization’) had grave unintended consequences for the Soviet Union when it found itself in a deepening crisis by the end of the 1980s. As long as the Soviet system was able to deliver economically, the ethnic communist leaders were contributing to the functioning of this system – which could itself be seen as a sort of power-sharing arrangement between Moscow and the so-called national republics. However, in the serious crisis of 1991, these local leaders were able to switch to an ethnic alternative and replace ‘Soviet values’ with particular local interests. The existence of this ethnic alternative largely explains not only the stunningly swift and almost non-violent disintegration of the Soviet Union but also the subsequent emergence of ethnopolitical conflicts on its former territory. Over time, the composition of the opposing groups has changed, some of this being due to intra-elite competition, and moderate politicians have been included (Crowther 1998). The conflict between Chisinau and Gagauzia transformed into a political and economic debate within and over the legal framework provided by the 1994 Law. Today, the main actors on the Gagauz side are the Governor of Gagauzia (Bashkan) and the other leading members of the regional administration, as well as the Chairman of the People’s Assembly of Gagauzia and other members of the Assembly. On the Moldovan side, all the main political institutions, such as the president, the parliament, political parties, and the members of government can be seen as regular participants in the debate, depending on the nature of the issues being discussed.



On the initial stage of the korenizatsiya policy in Moldova, see King 1998.

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C

The International Community

Moldova became a member of the Conference for Security and Cooperation in Europe (CSCE) on 30 January 1992, a member of the UN on 2 March 1992 and a member of the Council of Europe (CoE) on 13 July 1995. Since 1992, the Republic of Moldova has been monitored and assisted by the international community (the CSCE Mission to Moldova was started in 1993) largely because of its ethnopolitical conflict with the breakaway region of Transdniestria. Since the end of the armed conflict there, political relations between the government of Moldova and the Transdniestrian authorities have remained deadlocked. At the same time, attempts were undertaken to defuse the simmering ethnopolitical conflict with Gagauzia. An ad hoc Parliamentary Commission was created to work out a ‘Status for Settlements Inhabited Predominantly by Gagauzes’. Given the novelty and sensitivity of the issue, Moldova asked the CoE and the CSCE experts to evaluate the draft law on the special status of Gagauzia, after its first reading in the parliament of Moldova in July 1994. The response of the international experts was predominantly negative. In their opinion, the rights that provided for Gagauz autonomy were too extensive and liberal. For example, while the draft law described Gagauzia as a subject of international law, the legal status of the non-Gagauz in an autonomous Gagauzia remained unclear, which was likely to lead to problems with non-Gagauz minorities. The experts thus proposed that to help resolve its ethnopolitical conflicts Moldova should adopt a general law on national minorities. The Gagauz resolutely objected to such an approach. They stressed that the Gagauz, having no kin-state, are not a national minority, but a people who enjoy the right to state independence. However, they emphasized that they would not insist on Gagauz independence so as not to undermine the territorial integrity of Moldova. Instead, they would be satisfied with an autonomy arrangement. In 1994, the government of Moldova decided in favour of territorial autonomy for the Gagauz. Therefore, the efforts of international experts focused on suggesting changes that would limit the autonomy rights, on the one hand, and enhance the rights of other ethnic groups in Gagauzia, on the other. These suggestions were forwarded to the ad hoc Parliamentary Commission, which then sought to incorporate them before the second and final reading of the basic law in December 1994. At first, the hardliners among the Gagauzian leaders objected to these changes, but later they agreed, obviously considering the autonomy arrangement as far more important than the details of it.



The Gagauzian side presented these views to the OSCE High Commissioner on National Minorities during his visit to Gagauzia in December 1994. I am indebted to Professor Stefan Troebst of the University of Leipzig for kindly providing me with his manuscript (Troebst 1994). In December 1994, Professor Troebst was a member of the CSCE Mission to Moldova and accompanied the HCNM to Gagauzia.

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III The Origins of the Power-sharing Agreement A

The Route to the Current Agreement

Chinn and Roper date the beginning of the journey towards autonomy to the early 1980s, when a small number of Gagauz intellectuals created a cultural club to discuss how to preserve the language and culture of their people. During these years, the Soviet authorities prosecuted such activities (Chinn and Roper 1998: 91). The political atmosphere changed under Gorbachev’s perestroika policy and in May 1988 the first Gagauz nationalist movement, the Gagauz Khalki (Gagauz People) was founded. Initially, it supported the Popular Front of Moldova but moved to oppose it after the adoption of the language law in August 1989. The Gagauz felt threatened by this legislation and the ensuing politics of ‘Romanization’ and ‘de-Russification’ pursued by the Moldovan authorities. In this situation, the Gagauz leadership sought closer relationships with pro-Soviet forces. On 12 November 1989, delegates and local Gagauz assembled in Comrat to proclaim a Gagauz Autonomous Soviet Socialist Republic (ASSR) within Moldova. The Moldovan Supreme Soviet immediately rejected this proclamation. The initial months of 1990 saw Chisinau providing little economic or cultural aid to the Gagauz-populated regions, so the Gagauz delegates and officials assembled in Comrat on 22 June 1990 and once again declared the creation of the Gagauz ASSR within Moldova. Again, no substantial practical moves were immediately initiated to validate this claim and no violence occurred (Thompson 1997: 91–92). On 19 August 1990, the Gagauz leadership proclaimed a Gagauz Soviet Socialist Republic, which would be independent from Moldova, but part of the Soviet Union. They also decided to hold elections for the Supreme Soviet of the newly self-proclaimed republic on 28 October 1990. In turn, on 26 October 1990, the Supreme Soviet of Moldova decreed an emergency situation in the southern part of Moldova (where the Gagauz live). To prevent the elections taking place, the Moldovan government mobilized approximately 40,000 armed volunteers and moved them to the South. In response, the Gagauz organized their own voluntary paramilitary units. Another column of volunteers arrived from Transdniestria, through the territory of the Ukraine, to support Gagauzia. Fortunately, this potentially dangerous confrontation between the Gagauz and Transdniestrian forces, on one side, and the Moldovan volunteers, on the, other did not develop into an armed conflict. The Gagauz leaders appealed to Moscow to send forces to the region. Moldovan police and Soviet Interior Ministry troops managed to stop the Moldovan volunteers, and thus prevented bloodshed. At the negotiations, in which the Commander of the Soviet interior forces participated, an agreement was reached to withdraw both the Moldovan and Gagauzian volunteers. Shortly afterwards, Moldova dissolved its voluntary units. These developments, however, alienated the Gagauz even further from the Moldovans. The central authorities effectively lost control over the Gagauz area around Comrat and some Moldovan policemen were killed in 1991 and 1992 during Gagauz attacks on Moldovan police stations. It was only in the autumn of 1992,

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after the armed conflict in Transdniestria had ceased, that political negotiations on autonomy status for Gagauzia were initiated (Neukirch 2000). Until then, all declarations and decisions made by the Gagauz between 1989 and 1991 had been systematically overruled or banned by the Moldovan Supreme Soviet. The latter’s proposal in 1991 to create a special Gagauz ‘county’ was, in turn, rejected by the Gagauz, as this would have deprived them of the right to make decisions on political matters and legislative issues. The situation changed after Moldova suffered the 1992 shock of armed conflict with Transdniestria. In 1993, the Moldovan parliament discussed several draft laws on a special status for Gagauzia. However, the pro-Romanian members of the parliament rejected these drafts as too liberal. Only after a new, and less proRomanian, government and parliament was elected in 1994, was a more constructive discussion of Gagauz autonomy started, which led to the adoption of the 1994 Law. B

Role of International Actors

There has been no extensive international involvement in the management of the Gagauzia conflict. Some authors have claimed that the success of the arrangement was indeed partially due to the fact that it remained bilateral (Chinn and Roper 1998: 97). However, sporadic international involvement can be identified. For example, the CoE initially stated that Gagauzia was not entitled to the right of self-determination. The CoE and the CSCE repeatedly stated that Chisinau should solve the Gagauz problem by means of introducing general minority legislation. Most conspicuously, the mandate of the CSCE Mission to Moldova, established in April 1993 in the wake of the Transdniestrian conflict, did not even mention Gagauzia. However, on 13 November 1993, soon after its establishment, the CSCE Mission to Moldova issued its Report No. 13 (CSCE 1993). This report mostly proposed ways for resolving the conflict between Chisinau and Transdniestria, but it also made references to Gagauzia, which demonstrate that despite Transdniestria being the main focus, the Mission had a holistic approach to Moldova. In the Transdniestrian conflict, the CSCE tried, naturally, to encourage both sides towards a compromise. Pushing aside the extreme positions, the report rejected the Transdniestrian proposal for a ‘confederation’, which presupposed the existence of separate states and aimed at distributing all power among them at the expense of the centre. Neither did the report attempt to please those circles in Chisinau which considered Transdniestria as simply another part of the country and denounced any attempt to let it benefit from a special status. Instead, the report developed compromise positions on how to re-establish the territorial integrity of Moldova by offering Transdniestrians a measurable degree of self-rule. The report preferred the term ‘autonomy’ to ‘special status’. It underlined that under the Soviet regime ‘autonomy’ had had little real significance and was thus compromised. This explains why ‘autonomy’ as a term is generally unpopular with many Moldovans and why ‘special status’ was preferred by Moldova. However, as

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the report pointed out, in the context of a centralized state like Moldova, a ‘special status’ for a region, by definition, had to entail autonomy rights because the term implies that this region is governed less directly, thus leaving more room for self-rule (autonomy). Moreover, the report claimed that experience showed that autonomy solutions such as those in South Tyrol, the Spanish Basque country, or the Finnish Åland Islands could go as far as, or even further than, devolution in some federal states. Further, the report referred to a CSCE Expert Meeting on National Minorities in Geneva in July 1991, which had proposed local and autonomous administration and territorial autonomy, including the establishment of legislative and executive organs, as a mechanism for multiethnic cohabitation. It went on to discuss the possible future structures of the Moldovan state as a whole and assessed that three federal states, as suggested by some (Transdniestria, Gagauzia, and the remaining, but by far largest, part of the country), would create an unbalanced state structure. Instead, the report suggested to subdivide the country into eight to ten regions (one or two of them being Transdniestria, one the area around Bendery, another one the preponderantly Gagauz-inhabited area around Comrat) and to transfer power from the capital to the new regional structures. In the opinion of the Mission, a balanced distribution of power between the capital and a region had to be the essence of any special status. The report contains a passage which shows that a draft law on the special status of the territory largely populated by the Gagauz contributed some ideas to the proposal of the Mission to set up a Special Region of Transdniestria within the Republic of Moldova. This Special Region was envisaged to be an integral part of the Republic of Moldova but also enjoying considerable self-rule, having its own executive, elective assembly, and court. Thus, while the conflict in Transdniestria was the Mission’s main concern, it viewed Transdniestria and Gagauzia as similar challenges to the unitary state structure of Moldova. A comparison of its Report No. 13 with the 1994 Law shows that some of the ideas and solutions proposed in the report for Transdniestria were eventually applied to Gagauzia in the 1994 Law. However, the special autonomous status to be granted to Gagauzia initially caused objections from the CoE. It criticized the extensive downward delegation of powers to the autonomous region (REF/RL Daily Report 1994a). Although Gagauzia was not part of the CSCE/OSCE’s original mandate, the organization later expanded its activities to include the autonomous region. In 1994, it was the Moldovan government that decided to invite both the CoE and the OSCE High Commissioner on National Minorities (HCNM) to comment on the draft law on the special status of Gagauzia. Both were concerned that granting territorial autonomy to the Gagauz would create new ethnic minorities inside Gagauzia, where substantial numbers of Moldovans, Bulgarians, Ukrainians, and Russians were living. As discussed previously, a general minority legislation was considered as an alternative to the autonomy arrangement. There was also a broader concern that the law would create a precedent for the whole of Europe where governments would oppose Gagauz-style solutions for providing territo-

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rial autonomy to national minorities. Additionally, experts and other international actors noted that the formulations of the law were too ambiguous on taxation and other financial matters. Indeed, while the Gagauz example did not lead to a Europe-wide upsurge of demands for autonomy, Article 18 of the 1994 Law, which establishes budgetary relations between Moldova and Gagauzia, did cause most of the later friction between the autonomous region and the central government. In June 1994, the Moldovan government invited the HCNM to visit Moldova and evaluate interethnic relations in the country. The visit of the HCNM took place at the beginning of December 1994, when the second reading of the law on Gagauzian autonomy in the Moldovan parliament was pending. The HCNM met with practically all those in Chisinau and Gagauzia who were engaged in the negotiation process. In Gagauzia, he explained to the local leaders that certain concessions were necessary to achieve a settlement with the central government on the special status for Gagauzia. The most important concessions in this regard were that Gagauzia was no longer described as a subject of international law and that the legal status of the non-Gagauzes in the future Gagauzia was enhanced by inserting a new article into the draft law (Troebst 1994: 4). It is believed that these meetings with a high-ranking representative of the international community contributed to the adoption of the law at the second reading on 23 December 1994. Apart from the visit of the HCNM, the OSCE monitored the elections and evaluated the efficiency and functional validity of the electoral system in the autonomy agreement. The OSCE, for instance, assessed the elections for the Governor of Gagauzia and the elections for the People’s Assembly of Gagauzia in August–September 1999. In 1999, the mandate of the OSCE Mission to Moldova included such responsibilities as: the monitoring of interethnic relations (e.g., post-conflict rehabilitation in Gagauzia), the provision of advice and expertise, as well as other contributions including a framework for a political settlement that complied with international obligations and commitments regarding human and minority rights, or the mediation of the disputes or complaints in the human dimension areas in cooperation with local authorities. It may be argued that there were important inputs from other external actors, such as the Ukraine and Turkey. The latter played a significant role in the eventual arrangement of Gagauzian autonomy by promising investments and development assistance for the southern regions. The visit of the president of Turkey, Suleyman Demirel, to Moldova in 1994, prior to the adoption of the law on the special status of Gagauzia, has been described as crucial to the resolution of the Gagauzia issue (RFE/RL Daily Report 1994b). C

Final Negotiations

The negotiations of a special Parliamentarian Commission with the participation of the Gagauz representatives were initiated in 1993, but the parliament was not able to decide on the status of Gagauzia as drafted and proposed by the Commission. After a new parliament was elected in 1994, the work was resumed. On 1 April 1994,

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another special Parliamentary Commission (with the participation of the Gagauz) was formed, which worked on the draft law on the special status of Gagauzia for several months, using recommendations from the CoE and the CSCE. In July 1994, the Moldovan parliament adopted the draft law at its first reading and on 23 December 1994, after it was amended following the recommendations of international experts, it was adopted at the second reading. Finally, Gagauz autonomy had been formally recognized. IV Initial Reaction to the Agreement The agreement, once reached by the adoption of the 1994 Law, was met with positive evaluations both in Moldova and abroad. In 1997, one senior Gagauz official characterized the agreement on Gagauz autonomy as a breakthrough in the domestic affairs of Moldova, and as “an act of wisdom of the peoples of Moldova and Gagauzia” (Järve 1998: 21). Pro-Romanian politicians in Moldova, on the other hand, strongly objected to the right of the Gagauz to external self-determination in the event of Moldova changing its status (1994 Law Art 1). In 1994, the representatives of the opposition ‘Gagauz People’s Party’ told the HCNM in Comrat that their party was against territorial autonomy for the Gagauz, accusing the then Gagauz leadership of being in close contact to red-brown forces (Zhirinovskii’s Liberal-Democratic Party and Zyuganov’s Russian Communist Party) in Moscow. They described the Gagauz as a national minority (Troebst 1994: 9). However, the influence of these groups remained marginal. International involvement continued in connection with the 1998 adoption of the Legal Code of Gagauzia (regarded by the Gagauz as their constitution), which was written by the Gagauz and reviewed by a number of experts at home and abroad. On 17 March 1998, the Moldovan Supreme Court nullified the decision of the People’s Assembly of the autonomous region to hold a referendum on a constitution for the region at the same time as the 22 March elections to the Moldovan parliament. Following that decision, the Central Electoral Commission revoked its earlier decision to allow the referendum. A spokesman for the commission said the People’s Assembly had failed to bring the draft regional constitution into line with Moldova’s Basic Law. However, after receiving opinions from the CoE,10 the Moldovan Ministry of Justice, and independent lawyers 

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The legal argument for stopping the referendum was that the draft of the Code of Gagauzia had been distributed only in Russian, thus violating the law on languages, and also only in a small number of copies, so that the electorate was not sufficiently informed about its substance. Thus, a translation of the Russian version into Moldovan and Gagauzian was done and as a result the Code of Gagauzia happens to be the only legal act of Gagauzia also available in Gagauzian and Moldovan, as all other legislation has been published in Russian only. (I owe this clarification to Claus Neukirch.) On 7 May 1998, the Venice Commission concluded in its “Opinion on the Legal Code of Gagauzia” that the draft Legal Code constituted a good basis for defining the rules

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from/in the USA – all of whom agreed that the document did not contradict the Constitution and was in line with international provisions on local autonomy – the People’s Assembly of Gagauzia unanimously voted in favour of the region’s Basic Law on 14 May 1998. The active cultural and economic involvement of Turkey continued after the autonomy agreement was adopted. In June 1998, the Turkish President Suleyman Demirel came to Moldova to discuss bilateral relations and economic cooperation with his host, President Petru Lucinschi, and to visit Gagauzia. Demirel thanked his hosts for the way Moldova had solved the problem of Gagauz autonomy, saying that the Gagauz population is “a bridge” in the two countries’ friendship. Demirel announced that Turkey had agreed to grant Moldova a usd 35 million credit, of which usd 15 million was to be used for improving the water supply system in Gagauzia (RFE/RL 1998; Turkish Press Review 1998). In fact, Turkey has played the role of surrogate kin-state – due to cultural and language proximity with the Gagauz – both before and after the power-sharing agreement was concluded. At the initiation of the autonomy agreement, experts pointed to the problem of borders of the autonomous region (the settlement pattern of the Gagauz is geographically dispersed) and to the vaguely-defined taxation and other economic matters. The border issues, somewhat surprisingly, have not caused any major trouble. At the same time, economic matters, including taxation, have proved to be major stumbling blocks on the way to harmonious relations between the national centre and the autonomous region, causing heated debates and disagreements on how Article 18 of the 1994 Law should be interpreted. V

The Power-sharing Arrangement and Its Implementation

The power-sharing arrangement between Chisinau and Gagauzia (Comrat) is based on the Moldovan Constitution, Article 111 of which stipulates the possibility of territories with a special status in the country.11 An explicit and detailed ar-

11

governing Gagauz autonomy. Yet, the Commission pointed out that the draft Code regrettably incorporated numerous provisions derived from other legal texts that had simply been copied. The result is that the draft Code covers matters which in actual fact fall outside the jurisdiction of Gagauzia, raising doubts in the reader’s mind as to which is the right text (the Legal Code or the text copied). The Commission recommended that all the provisions copied from other texts be systematically expunged from the draft. See http://www.venice.coe.int/site/interface/english.htm). Article 111 “Special Autonomy Statutes” of the Moldovan Constitution reads: (1)

The places on the left bank of the Nistru river, as well as certain other places in the south of the Republic of Moldova may be granted special forms of autonomy according to special statutory provisions of organic law. (2) The organic laws establishing special statutes for the places mentioned under paragraph (1) above may be amended if three fifths of the parliament members support such amendments.

Available at http://oncampus.richmond.edu/~jjones//confinder/moldova3.htm#C8”.

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rangement of the autonomy of Gagauzia is laid down in the 1994 Law, which can only be amended by a three-fifths majority of the Moldovan parliament. The preamble of the 1994 Law says that the law is adopted “with the aim of satisfying the national needs and preserving the national identity of the Gagauzes, bringing about their full and comprehensive development, fostering their language and national culture, and assuring their political and economic self-reliance.”12 It also confirms “the equality of rights of all citizens who live on the territory of the autonomous territorial unit, which is being created without regard to nationality or other distinctions.”13 Article 1 of the organic law stipulates: (1) Gagauzia (Gagauz-Yeri) is an autonomous unit, with a special status as a form of self-determination of the Gagauzes, which constitutes an integral part of the Republic of Moldova. (2) Gagauzia shall, within the limits of its competence, resolve by itself questions of political, economic and cultural development in the interests of all its population. (3) All rights and liberties defined in the Constitution and legislation of the Republic of Moldova shall be guaranteed on the territory of Gagauzia. (4) In the case of a change of the status of the Republic of Moldova as an independent state, the people of Gagauzia shall have the right of external self-determination.

A change of the status of Moldova as an independent state refers to Moldova’s mooted unification with Romania, one of the main aims of the Popular Front – an idea which is still alive (Prihodko 2001). For the Gagauz, who were and remain against such a union, it was important to have the right of external self-determination reserved for this eventuality. The radical elements on the Moldovan side, particularly the Popular Front, have always objected to this right of the Gagauz. A

‘Vertical’ Aspects of the Agreement

1 Division of Power According to its Constitution, the Republic of Moldova is still a unitary state, because Article 111 of the Constitution stipulates only the possibility of a special status for certain regions on the left bank of the Dniester river and in the south of the country. The Gagauz autonomy is not mentioned in the Constitution, as it was adopted before the special status was created for Gagauzia. There have been no amendments to the Constitution, which remains a source of serious concern 12 13

References to the text of the 1994 Law follow the office translation by the OSCE Mission to Moldova. A Russian version of the 1994 Law is available at http://www. minelres.lv/NationalLegislation/Moldova/Moldova_Gagauzia_Russian.htm The term ‘nationality’ in the Eastern European context in general, and in the postSoviet context in particular, means ‘ethnic origin’, not ‘citizenship’, as is common in the West.

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for the Gagauz. Vertically, the Republic of Moldova has three levels of government: the state level (the capital Chisinau), the county level (since 1998 this has been nine counties, Chisinau municipality, Gagauzia, and Transdniestria), and the local level. On 27 December 2001, the parliament of Moldova adopted a new law on the administrative-territorial structure of the country, abolishing the nine counties created by the 1998 law and restoring the thirty-two rayons of the Soviet period. According to Article 7 of the 1944 Law, “the representative authority of Gagauzia shall be the People’s Assembly (Halk Toplushu), which shall have the power, within the limits of its competence, to enact laws.” It is elected every four years by a universal, equal, direct, secret, and free vote on the principle of one deputy for each 5,000 voters, with at least one deputy from each locality that belongs to Gagauzia. Citizens of Moldova who have attained the age of 21 and who live in the electoral district (locality) they wish to represent on the twenty-one of the elections may be deputies of the People’s Assembly (Art 8). According to Article 12(1), the People’s Assembly shall adopt, within the limits of its competence, local laws by a majority of votes of the elected deputies. Article 12(2) explains that this competence includes the fields of: a) science, culture, education; b) housing management and urban planning; c) health services, physical culture, and sports; d) local budget, financial, and taxation activities; e) economy and ecology; and f ) labour relations and social security. Further, Article 12(3) stipulates that the competence of the People’s Assembly shall also include: a) solving in a legal manner of questions of the territorial organization of Gagauzia, the establishment and alteration of the categories of localities, the borders of the regions, towns and villages, and their naming; b) participation in the implementation of internal and external policy of the Republic of Moldova connected with the interests of Gagauzia; c) defining the structure of the organization and activity of local public administrative authorities of Gagauzia and of citizens’ associations, with the exception of political parties and other voluntary political organizations; d) setting, organizing, and conducting elections of deputies for the People’s Assembly and approving the composition of the Central Election Committee for carrying out the elections; setting elections for local public administrative authorities of Gagauzia; e) conducting local referendums concerning questions that are within the competence of Gagauzia; f ) adoption of regulations and symbols of Gagauzia; g) creation of titles of honour and the institution of decorations; h) examining the question and the initiation of a proposal to the parliament of the Republic of Moldova concerning the declaration of a state of emergency

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i)

on the territory of Gagauzia and the introduction under such circumstances of a special form of administration in order to ensure the protection and security of the inhabitants of Gagauzia; and the right to appeal in a manner fixed by law to the Constitutional Court of the Republic of Moldova with a case concerning the voiding of enactments by the legislative and administrative authorities of the Republic of Moldova if they infringe on the authority of Gagauzia.

Thus, division of powers at the international level is defined in Article 12(3b) as a competence of the People’s Assembly to participate “in the implementation of the internal and external policy of the Republic of Moldova connected with the interests of Gagauzia.” The participation of the Gagauz in the government of Moldova has two main forms. First, the Governor of Gagauzia (Bashkan), who is elected for a four-year term, becomes a member of the government of the Republic of Moldova after a decree of the president of Moldova (Art 14). Second, on the recommendation of the Governor of Gagauzia, the directors of departments of the Executive Committee (the Gagauzian administration), appointed by the People’s Assembly, shall become members of the boards of the corresponding ministries and of departments of the Republic of Moldova (Art 19). In addition, decrees and orders of the Governor of Gagauzia and the Executive Committee shall be presented to the government of the Republic of Moldova with a ten-day period from the date of adoption (Art 17(3)). In the opinion of the Venice Commission, the extent of the powers conferred on the Gagauzian autonomous institutions is striking. The Commission stresses that the People’s Assembly can legislate on almost any important area with the exception of defence and foreign policy. It is difficult, in the opinion of the Commission, to see that the creation of a legislature in Gagauzia whose laws are capable of ousting the national laws is consistent with Article 60 of the Constitution of Moldova in its conferring of sole legislative competence on the national parliament. The problem also arises with Article 66 of the Constitution, which empowers the parliament to ensure legislative unity of regulations throughout Moldova (Council of Europe 2002a: Items 25 and 26). As a remedy, a change from the right to legislative power to the right to legislative initiative is proposed for the People’s Assembly in the draft Law on Modification and Addition in the Constitution of the Republic of Moldova. The Venice Commission supports this change in its Opinion of 12 March 2002, as this would bring Moldova into line with most countries with territorial autonomies where the final decision on legislative initiatives belongs to the national parliament (Council of Europe 2002a: Items 31). In other observations of its 12 March Opinion, the Venice Commission notes that while Article 12 of the 1994 Law gives the People’s Assembly the right to submit to the Constitutional Court legal acts adopted by the legislative or executive authorities of the Republic of Moldova that it considers to infringe on the autonomous powers of Gagauzia, the authorities of Moldova have no power to submit

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any legal act of the People’s Assembly to the Court that these authorities consider to exceed the powers of the Assembly. The Commission recommends that the authorities of Moldova should have the power to challenge the constitutionality of the normative acts of the autonomy. 2 Constitution and Design of the Polity Starting from 1995, when the 1994 Law entered into force, the Gagauz region constituted itself as ‘an autonomous territorial unit’, which is supposed to have a higher status than the counties and be comparable with the municipality of Chisinau, the capital city. According to Article 5 of the 1994 Law: 1) Gagauzia shall include localities in which Gagauzes constitute over 50% of the population. 2) Localities in which Gagauzes constitute less than 50% of the population may be included in Gagauzia on the basis of the freely expressed will of a majority of the electorate revealed during a local referendum conducted on the initiative of no less than one third of the electorate of the corresponding locality. 3) Localities referred to in parts (1) and (2) of the present Article shall be included in Gagauzia on the basis of the result of the local referendum conducted by the Government of the Republic of Moldova in each community. 4) Localities included in Gagauzia shall reserve the right to secede from Gagauzia as a result of a local referendum conducted at the initiative of at least one third of the electorate, but not before one year after the date it was included in Gagauzia.14 Article 14 of the 1994 Law legislates that: 1) The highest official of Gagauzia shall be the Governor (Bashkan). All public administrative authorities in Gagauzia are subordinate to him. 2) The Governor of Gagauzia shall be elected on a contested basis for four years by universal, equal, direct, secret, and free vote. 3) The Governor of Gagauzia must be a citizen of the Republic of Moldova who has reached thirty-five years of age and who has a command of the Gagauz language. 4) The Governor of Gagauzia shall be appointed as a member of the Government of the Republic of Moldova after a decree by the President of the Republic of Moldova. 5) No person shall be elected to the office of the Governor of Gagauzia more than twice in a row. 6) The Governor of Gagauzia shall direct the activity of the public authorities and shall be responsible for carrying out the powers vested in him by law.

14

Article 8(6) of the Code of Gagauzia restricts this right of secession only to those localities where the Gagauzes constitute less than 50%.

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7) The Governor of Gagauzia shall, in conformity with the present Law, issue decrees and orders that shall be carried out on the whole territory of Gagauzia and shall come into force on the day of their publication. 8) The Governor of Gagauzia shall provide the People’s Assembly on an annual basis with reports on the activity of the public administrative authorities of Gagauzia. 9) The functions of the Governor of Gagauzia shall be suspended before his term expires in the event he does not observe the Constitution of the Republic of Moldova, the present Law, local laws, and the resolutions of the People’s Assembly, or if he commits an infraction. 10) A decision to remove the Governor of Gagauzia from office shall be adopted by a two-thirds vote of the elected deputies of the People’s Assembly, but a decision to remove other officials of public administrative authorities shall require a majority of the votes of the deputies of the People’s Assembly. The executive body of Gagauzia, the Executive Committee of Gagauzia, is legislated by Articles 16 and 17. Article 16 says that the Executive Committee shall be appointed by the People’s Assembly at its first session for the duration of its mandate. The Assembly shall appoint the membership of the Committee on the proposal of the Governor of Gagauzia by a vote of the majority of the deputies. The Venice Commission has noted that the range of responsibilities of the Executive Committee is equally comprehensive, as it has to implement all acts adopted by the People’s Assembly (Council of Europe 2002a: Item 25). Article 17 stipulates the following competences of the Executive Committee: a) the implementation and observance of the Constitution and of the laws of the Republic of Moldova and of the enactments of the People’s Assembly; b) participation in the functioning of specialized central administrative authorities of the Republic of Moldova in matters relating to the interests of Gagauzia; c) the regulation in conformity with the law on the whole territory of Gagauzia of property rights and the management of the economy, social, and cultural development, the local budget and financial system, social security, remuneration, local taxation, environmental protection, and the rational use of natural resources; d) the definition of the framework and priorities for economic development and scientific and technical progress; e) the working out of programmes of economic, social, and national-cultural development and of environmental protection, and their implementation after approval by the People’s Assembly; f ) the drawing up of the budget of Gagauzia, its submission to the People’s Assembly for approval, and its execution; g) the resolution of questions of ecological security, the rational use, protection and regeneration of natural resources, the setting of quarantines, and the declaration of zones affected by natural disasters;

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h) the drawing up and carrying out of programmes in the areas of education, culture, public health, physical culture of sports, social security, as well as protection and use of the historical and cultural monuments; i) the maintaining of equal civil rights and liberties, national and civic harmony, and protection of legality and of public order; j) the drawing up and promotion of a scientifically valid demographic policy, and a programme of urban development and housing management; k) the use and development of the national languages and cultures on the territory of Gagauzia. Article 17 also gives the Executive Committee the right to initiate legislation in the People’s Assembly. This right has been actively used by the authorities of the new autonomous region. From April 1999 to January 2001, for example, the People’s Assembly adopted 29 local laws, including laws on the budgets of 2000 and 2001, and nine decrees (Sbornik zakonodatelnych aktov Gagauzii 2001: 221). According to information from the Chancellery of the People’s Assembly of Gagauzia, from 1995 through September 2001, all in all, ninety-four local laws have been adopted. The government of Moldova played an important role at the beginning of the implementation of the 1994 Law by organizing the referendums and elections necessary for the establishment of the Gagauzian autonomous region in 1995. Later, however, the Gagauz became more and more critical of the role of Chisinau in this implementation. 3 Electoral Mechanisms On the same day the 1994 Law was adopted, the Moldovan parliament also passed the Resolution on Implementation of the Law on the Special Legal Status of Gagauzia (Gagauz Yeri), which tasked the government with several obligations regarding the elections to be carried out in the southern regions of Moldova to constitute the Gagauzian autonomous region. The government had to draw up and adopt a Temporary Regulation on the Local Referendum based on the Law on Local Elections, a Temporary Regulation on Elections for the Governor of Gagauzia and a Temporary Regulation on Elections for the People’s Assembly of Gagauzia. The Resolution of 23 December 1994 also charged the government with organizing and conducting a local referendum in several localities in the south of Moldova, as well as organizing and conducting elections for the People’s Assembly of Gagauzia and the Governor of Gagauzia. The government of Moldova fulfilled these tasks. In March 1995, referendums were held in thirty-six districts in the south of Moldova. The voters were asked the following question: “Do you favour your community entering Gagauz Yeri, which is an integral part of Moldova?” As a result, three cities and twenty-six villages opted to join the autonomous region. Voter turnout was 79% and international observers from the CoE, the OSCE, and Turkey judged the referendums free and fair (Thompson 1997: 101).

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In May 1995, elections for the People’s Assembly and for the Governor of Gagauzia were held. In 1999, elections for the People’s Assembly of Gagauzia and the Governor of Gagauzia were held for the second time, as prescribed by the 1994 Law. As international observers have not noticed major violations of laws and regulations during any of these elections, one can say that the electoral system in Gagauzia is functioning normally. Still, the Gagauz would like to have reserved seats for the autonomous region in the parliament of Moldova. They do have reserved seats in the executive structures, as discussed below. B

‘Horizontal’ Aspects of the Agreement

Issues such as communications and media, health and social services, education, human and minority rights have not caused significant problems during the implementation process. However, their practical implementation suffers from a lack of resources. At the same time, the economy, administration of justice, external relations, and trans-border cooperation are generating political and legal problems. 1 Communications and Media In the 1994 Law, communications and media were not explicitly referred to. However, Article 1 states: “Gagauzia shall, within the limits of its competence, resolve by itself questions of political, economic and cultural development in the interests of all its population.” This implies communications and media. Communications and media follow the linguistic pattern of Gagauzia. All media operating in Gagauzia tends to be predominantly in Russian. National radio and television broadcast programmes in Gagauz only once a month. The autonomy agreement has not made a difference to the proportion of Gagauz language programmes on national radio and television. Communications and media suffer from a lack of resources that can have serious political consequences. For example, because of technical limitations, it is not possible to cover the whole autonomous region with one single TV channel. The Gagauzian authorities suffered from this drawback during the political crisis of early 2002 when they were not able to communicate their own messages to the population, while broadcasts from Chisinau could be received without problems. 2 Health and Social Services Gagauzia is part of the Moldovan healthcare and pension systems and has to keep to the established standards and costs of providing these services. However, using its legislative power, and after overcoming some resistance from Chisinau, it was the first region in Moldova to introduce a health insurance system instead of a state-provided health care system.

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3 Education The Moldovan Law on the Use of Languages (Art 18) provides that “the state shall guarantee the right to secondary education, non-specialized intermediate studies, specialized, technical and vocational intermediate studies, and higher education in Moldovan and Russian, and shall create the necessary conditions for observing the rights of citizens of other nationalities who are resident in the Republic to education and studies in their native language (Gagauz, Ukrainian, Bulgarian, etc.).” As Article 3 of the 1994 Law notes, Moldovan, Gagauz, and Russian will serve as the official languages of Gagauzia. Moldovan and Russian are designated as the languages of correspondence among the public administration authorities. The People’s Assembly has the right to adopt local laws on education (Art 12(2a)). In practice, besides the lack of resources, many problems of the education system are related to the poor status of the Gagauz language. The authorities of Soviet Moldova had introduced Cyrillic script for the Gagauz language in 1957. The Gagauz language was then unable to establish itself during the following years as the main language of the Gagauz and is still facing difficulties. In 1989, 87.5% of the Gagauz claimed Gagauz as their native language, but a 1998 sociological survey established that only 37.8% of the adult population of Gagauzia knew the written form of the language, while 44.1% spoke Gagauz with their children at home. With regard to the language of education for their children, 80.6% of the respondents preferred Russian, 4.6% Gagauz in combination with other languages, 2.6% Gagauz only, 2.6% English, and 1.4% Moldovan (Kristioglo 2000: 223-224). Nevertheless, under autonomy a sound legal basis has been created for the development of culture, which is regarded as a most significant achievement. Local experts refer to the positive role in this of Article 27 of the International Covenant on Civil and Political Rights, to which Moldova is a party. At the same time, they complain about an overload in the learning of languages. The schools in Gagauzia teach the three local official languages – Russian, Moldovan, and Gagauz – as compulsory subjects, accompanied by English or German as foreign languages. This has two major negative effects: many children cannot learn any of these languages properly, and the time left for other subjects is insufficient, which impairs the general level of education that can be provided (Kristioglo 2000: 222-224). Gagauzian authorities are in charge of their own education system. They have to follow nationwide standards and programmes, but they are independent in selecting and appointing their school headmasters and teachers. A special research unit has been created by the Gagauz to elaborate a new concept and launch ‘national schools’, i.e., schools for the Gagauz, Bulgarians, and Ukrainians, to develop curriculum items and courses in the Gagauz language and related disciplines. The university and the teachers’ college in Comrat are preparing specialists for local institutions of education and culture. In this effort, the assistance of Turkey is highly appreciated by the Gagauz. Still, material conditions in schools remain difficult. In September 2001, teachers in Gagauzia had not been paid their salaries for three months; electricity in some schools was disconnected due to unpaid bills.

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4

Economic Policies

The legal basis of the economic autonomy of Gagauzia is provided by Articles 6 and 18 of the 1994 Law. Article 6 states: The land, mineral resources, water, flora and fauna, other natural resources, movable and real property situated on the territory of Gagauzia shall be the property of the people of the Republic of Moldova and at the same time shall represent the economic basis of Gagauzia.

Article 18 of the 1994 Law establishes budgetary relations between Moldova and Gagauzia in the following way: 2) 3)

The local budget shall include any type of payment fixed by legislation by the Republic of Moldova and by the People’s Assembly. The mutual relationships of the budget of Gagauzia and of the state budget shall be established in conformity with the laws of the Republic of Moldova on the budgetary system and on the state budget for the corresponding year in the form of fixed payments out of all forms of taxes and payments.

To enable implementation of Articles 6 and 18, Article 12 authorizes the People’s Assembly to adopt laws in the areas of local budget, financial and taxation activities, economy, and ecology. In 1995, Charles King predicted “as the central government and the new Gagauz administration are beginning to discover, in formulating a comprehensive minorities policy, the devil is always in the details” (King 1995: 25). This has proved to be right, especially in economic and financial issues, such as the dividing of competencies in property relations and taxation between the autonomous region and the centre. However, solutions that would satisfy both sides have not yet been found and major disagreements over these issues have persisted (Neukirch 2000: 10–12). A major attempt to find a compromise took place on 11–12 December 2000 in Chisinau, when the OSCE Mission to Moldova organized a workshop on “Chisinau-Comrat Center-Region Relations in the Fields of Fiscal-Budgetary Policy, Public Property and Adaptation of Legislation” and secured high-level participation. This workshop once more highlighted the unresolved issues in the relations of Gagauzia and the central government (OSCE 2000d).15 As observed in the workshop materials, one of the major issues of debate was Article 18 of the 1994 Law. From the very beginning, the discussion in the work15

I am thankful to Mr Gottfried Hanne, Member of the OSCE Mission to Moldova, for providing me with the materials of this workshop, rendering invaluable assistance and sharing with me his observations concerning the relations between Chisinau and Comrat during my visit to Moldova 3–10 September 2001. This sub-section draws on the materials of the mentioned workshop.

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shop concentrated on the sources from which the Gagauz regional budget should be drawn. The Gagauz side expressed the view that the sources of the region’s budget should be all the taxes and payments collected on the territory of Gagauzia, plus customs and excise taxes for goods consumed in Gagauzia. According to the Gagauz point of view, the reasonable needs of the centre should be estimated and all revenues left should remain in the autonomous region. Moldovan government representatives, on the other hand, stressed that it was technically impossible to estimate the customs and excise taxes collected for goods consumed in Gagauzia, and that customs, excise tax, and VAT are usually revenues exclusive to the centre and cannot be considered legitimate revenues of second level territorial authorities. The discussion at the workshop showed the incompatibility of the basic positions. The Moldovan side tended to neglect the special nature of the autonomy status of Gagauzia in comparison to the status of ordinary counties and maintained that there is no need for any special treatment of Gagauzia in comparison to ordinary counties in financial terms. The Moldovan Finance Ministry held the position that, after the reform of Moldova’s financial and tax system, Article 18(2) of the 1994 Law contradicts other, ordinary Moldovan legislation and should be amended. The Gagauz side stressed that the position of the 1994 Law as an organic law was superior to the ordinary finance and tax legislation of Moldova and demanded the full implementation of that law and its Article 18. The Gagauz side viewed the autonomy status as a sufficiently legitimate basis for Gagauzia to receive more financial resources than ordinary counties. The proposal to assign to the centre only those financial means that can be considered reasonably necessary to cover the centre’s needs, but to hold all other revenues in Gagauzia, gave the impression that some Gagauz representatives regarded their autonomous region more as a state in itself than an autonomous region within a state. Such attitudes can be considered typical given the political fighting over scarce resources when old Soviet ‘know-how’ – to get one, ask for two – is used by the negotiators. Here it is employed thus – to get autonomy, ask for a state. While no agreement on common recommendations or principles was possible due to incompatible interpretations of Article 18, both the establishment of a permanent common commission between Chisinau and Comrat – to address disagreements at an early stage – and of a representative office of the Gagauz People’s Assembly at the parliament of the Republic of Moldova were supported. It was thought that these organs could also address the needs of exchange of information and regular consultations in the financial and economic spheres. A year later, at the end of 2001, when the Communist Party, which had promised to solve the problems of Gagauzia, had been in power for almost a year, the Gagauz were given finally the right to collect excise tax on their territory after the President of Moldova returned the Law on the Budget of 2002 to the parliament for amendments. While the transfers of funds from the centre to Gagauzia were simultaneously reduced, according to the Ministry of Finance’s estimates of the expected volume of excise tax, the Gagauz remained hopeful that the amount

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collected in excise tax would in fact be higher, thus leaving them better off than before.16 5 Administration of Justice Articles 20, 21, 22, 23, and 24 regulate the administration of justice and law enforcement in Gagauzia. Article 20 states: 1) The Tribunal of Gagauzia shall be a court of second instance in relation to inferior courts and shall examine, in the capacity of a court of first instance, the most complicated civil, administrative and penal cases. 2) Judges of the judicial bodies of Gagauzia shall be appointed by a decree of the President of the Republic of Moldova on the recommendation of the People’s Assembly of Gagauzia, with the agreement of the Superior Council of Magistrates. 3) The Chairman of the Tribunal of Gagauzia shall be an ex officio member of the Supreme Court of Justice. Article 21 legislates: 1) The Office of the Prosecutor of Gagauzia shall carry out its duties in accordance with the Law on Prosecutor’s Office of the Republic of Moldova (with the exceptions foreseen in the present law). 2) The Prosecutor of Gagauzia shall be appointed by the General Prosecutor of the Republic of Moldova on the recommendation of the People’s Assembly, and shall be an ex officio member of the board of the Prosecutor General of the Republic of Moldova. 3) Subordinate prosecutors shall be appointed by the Prosecutor General of the Republic of Moldova on the recommendation of the Prosecutor of Gagauzia, with the agreement of the People’s Assembly. According to Article 22, the Chief of the Department of Justice of Gagauzia is appointed and dismissed by the Minister of Justice of the Republic of Moldova on the recommendation of the People’s Assembly. The Chief of the Department of Information and Security of Gagauzia (Art 23), and the Chief of the Department of Internal Affairs of Gagauzia (Art 24) are appointed and dismissed by the corresponding central authorities on the recommendation of the Governor of Gagauzia with the agreement of the People’s Assembly. The local authorities coordinate the municipal police and policy commissariats while Carabineer troops (interior forces) are the responsibility of the central authorities (Art 24). Responsibility for the appointment and dismissal of senior police officers is shared between the central authorities and Gagauzia. The Prosecutor of Gagauzia, the Chiefs of the Departments of Justice, Information and Security, and of Internal Affairs are all ex officio board members of corresponding Ministries of Moldova (Arts 22, 23, and 24). 16

I owe this clarification to Mr Gottlieb Hanne of the OSCE Mission to Moldova.

10  Gagauzia and Moldova: Experiences in Power-sharing

The administration of justice in Gagauzia is suffering from the fact that the authorities in Chisinau have failed to set up the Tribunal of Gagauzia as part of the legal system of Moldova. As this tribunal must also confirm the results of elections in Gagauzia, its absence could be used to declare all elections technically illegal. So far, no central authority has done so, but the administration of Gagauzia is living under constant threat that one day this may happen. This again demonstrates the reluctance and/or inability of the central government to fully implement the 1994 Law as required, which is putting the autonomy under a long-term threat. The central government has not carried out several of its obligations as required by the resolution of 23 December 1994 of the Moldovan parliament on the implementation of the 1994 Law. Among the tasks to be carried out within a month were the following: to submit to the parliament suggestions on actions necessary for introducing conforming legislation to accord with the 1994 Law, and to bring its own enactments into accord with the named law. Another drawback of the court system of Gagauzia is that while Gagauzia has adopted laws on economy, it has no specialized court for economic issues. Whenever these cases reach the courts in Chisinau, the laws of Gagauzia can be easily ignored. 6 Human and Minority Rights In October 1996, Moldova ratified the Framework Convention for the Protection of National Minorities of the Council of Europe. The report submitted by Moldova pursuant to Article 25 (1) of this convention17 presents a positive evaluation of the Moldovan government towards the settlement in Gagauzia and contains data on different aspects of the life of the autonomous region. The administration of Gagauzia has taken measures to ensure the participation of non-Gagauz minorities living on the territory of Gagauzia. Article 10 of the 1994 Law prescribes that a non-Gagauz person is to be elected as a vice-chairperson of the People’s Assembly. This prescription has actually been followed in practice. The executive branch also employs representatives of other ethnic groups. According to the telephone directory of the senior officials of the Gagauz Executive Committee, approximately one third of them have non-Gagauz last names. One of the deputy chairpersons of the People’s Assembly is a member of the board of the Department of National Relations of the Moldovan government.18 17 18

See http://www.humanrights.coe.int/minorities/Eng/FrameworkConvention/StateReports/2000/moldova/moldovan.html. Theoretically, the Gagauz ex officio members of various ministerial boards in Chisinau, starting with the Bashkan as an ex officio member of the central government, have to participate in all the meetings of these bodies. Unfortunately, statistics on their actual participation do not exist. However, given the time and other resources needed for frequent travel between Chisinau and Comrat, and taking into consideration the other tasks of those officials in Gagauzia, it is quite possible that they could not attend all meetings in Chisinau, thus missing important information. This situ-

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On 19 July 2001, the parliament of Moldova adopted the “Law on the Rights of Persons Belonging to National Minorities and on the Legal Status of their Organizations.” Article 6 of this law stipulates that the state shall create the conditions necessary for the realization of the right of national minorities to be educated in their mother tongue, with an explicit reference to Gagauz as one of the minority languages. 7 External Relations and Trans-border Cooperation Gagauzia is authorized to take part in the foreign relations of Moldova (Art 12(3b)). This participation is implemented by including the representatives of Gagauzia in official delegations. In practice, Gagauzia has already sent its own delegations to Turkey, for example, in March 2002. Due to cultural and linguistic proximity, Gagauzia maintains close relations with Turkey and discusses economic, cultural, and educational issues. Gagauzia has started representations dealing with economic matters in Turkey and in Transdniestria. There are also plans to have representation in Belarus. Additionally, Gagauzia has an agreement of economic cooperation with the Odessa oblast of Ukraine; similar agreements with some oblasts of the Russian Federation are pending. It is difficult to speak about trans-border cooperation of Gagauzia in the strict sense of the word because Gagauzia as a region has no fixed borders. Only the borders of settlements that belong to the autonomous region are fixed. So far, this has not emerged as a major problem for the Gagauzian autonomous region. With regard to external relations and trans-border cooperation, Gagauzia has created political concern in Chisinau by opening and maintaining representation in Transdniestria. In March 2002, during a deepening political confrontation between Gagauzian authorities and the central government, the representative of Gagauzia in Transdniestria was arrested by Moldovan security officials.19 C

Successes and Failures of Implementation

The day the 1994 Law was adopted, the Moldovan parliament also passed the resolution “On Implementation of the Law on the Special Legal Status of Gagauzia” (Gagauz Yeri), which tasked the government with urgent obligations in harmonizing the legislation of Moldova with the 1994 Law. The Resolution of 23 December 1994 also charged the government with tasks of exercising control over the implementation the 1994 Law, organizing and conducting a local referendum in several localities in the south of Moldova, meaning Gagauzia, as well as organizing and conducting elections for the People’s Assembly of Gagauzia and the Governor of Gagauzia.

19

ation might well have contributed to the disagreements between the autonomous region and the centre. See http://www.gagauz-press.narod.ru/002-07-03.htm. At first, this official faced an old Soviet-style threat of being kept in psychiatric hospital. However, a few months later he was released.

10  Gagauzia and Moldova: Experiences in Power-sharing

As far as the elections and referendums were concerned, the government fulfilled its obligations. However, the government has not submitted to the parliament suggestions on actions necessary for introducing conforming legislation to comply with the organic law; it has not brought its own enactments into accord with this law, and it has not ensured reconsideration and invalidation by ministries and departments of their enactments that conflict with the law. This legislative passiveness is creating serious problems in the relations between Chisinau and Gagauzia. The Gagauz leadership has gained an impression that Chisinau is systematically and deliberately ignoring the special status of Gagauzia, and thereby trying to lower it back to the level of an ordinary county of Moldova.20 Since the adoption of the 1994 Law, the legal environment has become more complicated. In July 1994, the new Constitution was adopted, which provided for the possibility of regions with a special status, but did not name these regions explicitly. This constitutional construction was used to allow the organic law on the special legal status of Gagauzia. As an organic law has a higher status than ordinary laws, the latter had to be harmonized with the 1994 Law. However, as noted, the government has failed to do so. In practice, the government agencies are applying these non-harmonized ordinary laws to Gagauzia as if the 1994 law had never been adopted. Moreover, since 1994, other organic laws have been adopted. The validity of the stipulations of the 1994 Law in this context is becoming increasingly ambiguous. To defend the special status of Gagauzia, the leadership of the region started demanding that the Constitution of Moldova should be amended to include an explicit reference to the autonomous region of Gagauzia. Elisabeth Teague, who visited Gagauzia with the OSCE HCNM in 1994, was back in Gagauzia in February 2001 as an election observer. Talking about her impressions at the Association for the Study of Nationalities (ASN) Meeting in New York two months later, she underlined the disappointment of the Gagauz, who felt cheated by the Moldovan authorities. According to Teague, the Gagauz particularly complained about the lack of financial support for the region from the central government. They were also unhappy with Moldova’s electoral system, which leaves them underrepresented in the national parliament. As a result, they were calling for a change of the election law to guarantee a quota of seats in the national parliament. In the elections of February 2001, the Party of the Communists of Moldova came to power. To gain the support of the Gagauz people, the party promised to confirm the special status of the region in the Constitution of Moldova. On 10 May 2001, the parliament of Moldova adopted a resolution “On the Creation of a Commission for Harmonizing of Legislation with the Constitution of Moldova in Questions Dealing with the Special Status of the Autonomous Territorial Unit of Gagauzia.” Of the nineteen members appointed to the commission seven were 20 Interviews with Mr D. Croitor, the Governor of Gagauzia and with Mr V. Yanioglo, the First Vice-Chairman of the Executive Committee in Comrat on 7 September 2001.

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from Gagauzia. However, the Gagauz decided to suspend their membership after the first meeting as they saw an intention to revise the 1994 Law in the very name of the commission. The Gagauz stressed that it is the Constitution of Moldova that has to be harmonized with the 1994 Law. Regardless of this act of protest, the Gagauz continued working on their draft amendments to the Moldovan Constitution.21 Of all international actors involved, the CSCE/OSCE has contributed most to the implementation of the Gagauzian autonomy. The OSCE has monitored the situation in Gagauzia, observed the election of Gagauzian authorities and organized discussions of topical issues (for example, the workshop on legislative and budgetary issues in December 2000). In January 2001, based on the decision made by the Executive Committee of Gagauzia, the Governor of Gagauzia invited the United Nations Development Programme (UNDP) to help prepare the Regional Development Programme “Gagauz-Yeri,” which would include analysis of the socio-economic situation of Gagauzia and recommendations for regional policy. By September 2001, the programme had been assembled and published (UNDP 2001b). VI Current Status and Future Prospects A

Impact on Society

The establishment of Gagauzian autonomous region has greatly inspired the local population, which sees it as the achievement of its internal national self-determination. The Gagauz have real possibilities to enjoy the right to use and develop their language and culture, including education in their mother tongue. They are more in control of their economy and environment than before. They can devise their own laws and enforce them. The autonomous region is developing economic and cultural relations with countries including Turkey, Russia, Italy, and others. However, the previous economic backwardness of the region has not yet been overcome. The lack of enforcement of the 1994 Law on the part of the Moldovan authorities is inducing negative attitudes towards Chisinau among the Gagauz leadership. There has been no violence in the relations between Comrat and Chisinau since the establishment of the autonomous region. During the political confrontation of February-March 2002, there were threats of violence and even incidents of actual violence but no casualties. Public order has been maintained; however, the discontent of the population of Gagauzia with the dire economic situation is mounting while Chisinau’s financial policy is regarded as unfair and one of the main reasons for the economic difficulties.

21

Interview with Mr V. Yanioglo, the First Vice-Chairman of the Executive Committee of Gagauzia, on 7 September 2001 in Comrat.

10  Gagauzia and Moldova: Experiences in Power-sharing

B

Dependence upon Specific Actors

Post-Soviet countries are understandably quite sensitive to geopolitical pressures. Moldova is located between the expanding NATO and Russia. The country is torn by opposite intentions – the ruling Communist party has declared its orientation towards the Union of Russia and Belarus; on the other hand, a sizable group of Moldovan citizens consider unification with Romania as a preferable option and about 300,000 of them have also become citizens of Romania. In the case of Moldova’s putative unification with Romania, the Gagauz have the right to external self-determination (Art 1(4) of the 1994 Law), which means that the power-sharing with Moldova would fall apart. However, the current probability of this occurring is small. Moldova’s rapprochement with Russia would leave the power-sharing system in place and it can be argued that Russia could urge Chisinau to further implement and develop power-sharing with Gagauzia, which Russia might regard as a Russian-speaking region. It is worth mentioning that in the first half of 2001 Russia invested into the Moldovan economy a record high usd 93.2 million, which amounted to 77% of all Russian investments in the CIS countries during that period.22 Russia has signalled interest in importing larger amounts of red wine from Gagauzia, which could boost the local economy.23 If Chisinau and Moscow try to resolve the problem of Transdniestria by providing broad autonomy to this breakaway region, Gagauzian autonomy will very likely undergo fuller implementation and further sophistication. The management of the crisis in the relations between Chisinau and Comrat at the beginning of 2002 demonstrated that the international organizations, particularly the OSCE and the CoE, could play an important role in bringing the parties together for peaceful and constructive negotiations, thus helping to prevent the power-sharing system from collapse. In December 2001, Mr V. Mishin, President of the Commission on Changes to the Constitution of Moldova, submitted a request to the Venice Commission for an opinion on the draft law “On Changes and Amendments to the Constitution of the Republic of Moldova with Regard to the Status of the Gagauz Autonomy.” A group of Rapporteurs of the Venice Commission visited Moldova in February 2002 to discuss the draft law on constitutional changes relating to autonomous regions within the Republic of Moldova, with particular reference to the terri22

23

Nezavisimaya Moldova, 6 September 2001. At the same time, the Western countries do not seem very eager to invest in Moldova. An Austrian airline informed the passengers it flies to Chisinau from Vienna, quite straightforwardly: “Currently you should not do business in Byelorussia and Moldova. Starting a business in these small markets is still a high risk and often causes enormous problems” (“Never fall in love with the interpreter!” On top, Tyrolean Airlines in-flight magazine, No.2/01, 47). 7 September 2001 interview with Mr D. Croitor, the Governor of Gagauzia in Comrat.

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torial autonomy of Gagauzia with representatives of the Moldovan and Gagauz authorities. In March 2002, the Commission issued its opinion on the draft Law on Modification and Addition in the Constitution of the Republic of Moldova (Council of Europe 2002a). The role of international assistance became crucial once again during the political crisis at the beginning of 2002. Then, Resolution 1280 and Recommendation 1554 of 24 April 2002 of the Parliamentary Assembly of the Council of Europe were much anticipated in Moldova, which had to live with months of anti-government demonstrations in the centre of Chisinau, while at the same time it had a deepening conflict with and within Gagauzia. All sides of the Moldovan conflict interpreted these documents as a success for them. This helped resolve the political tension, stopped public demonstrations in Chisinau and ended the mutual accusations between government and opposition. The government of Moldova had been given one more chance to work constructively on the country’s many problems (Plugatarev and Prihodko 2002). C

Difficulties of Power-sharing

During 2001, the system of power-sharing was apparently running into trouble rather than consolidating as had been hoped, as the communists had not been able to deliver what they had promised the Gagauz leaders before the national elections of February 2001. In fact, the Communist Party of Moldova had signed an agreement with the members of the legislative body of Gagauzia that, if elected, it would support moves to enshrine the autonomous status of Gagauzia in the Constitution of Moldova; ensure Gagauz representation in state bodies at all levels; clarify the division of powers between Gagauzia and the centre; raise the issue of Moldova’s joining the CIS Customs Union and the Belarus-Russia Union; protect the Gagauz language; elevate Russian to the status of second state language alongside Moldovan; and pursue a peaceful resolution of the Transdniestrian conflict.24 On 25 February 2001, the Communist Party of Moldova gained 50.7% of the votes at the parliamentary elections, which gave it an absolute majority of 71 seats out of 101. The OSCE described the elections as free and fair. The autonomous district of Gagauzia gave them the highest vote of any of the regions of Moldova, with 80.57% of the votes cast.25 The victory of the communists led to high expectations in Gagauzia as a result of their very specific pre-election promises to Gagauz officials. However, disappointment with the new government started to spread among the Gagauz as the authorities in Chisinau continued to use the law, that were not harmonized with the organic law on Gagauzia, and tension between Chisinau and Comrat started to mount again. Of greatest significance though was that in 2001 the transfers 24 Communication from Elizabeth Teague on 6 April 2001 at the Association for the Study of Nationalities (ASN) Annual Convention in New York. 25 The results of the elections are available at http://www.ifes.md.

10  Gagauzia and Moldova: Experiences in Power-sharing

from the central budget to Gagauzia were established well below the level of transfers to the other regions of Moldova. Some symptomatic developments in Gagauzia deserve specific mention. On 19 August 2001, the Gagauz authorities celebrated the 11th anniversary of the attempt to secede from Moldova with a festival in Comrat. More than 1,000 residents and officials attended the unveiling of a commemorative stone in Comrat. The stone was dedicated to the memory of the activists who had contributed to the secession attempt of the region from Moldova. Speaking at the ceremony, Gagauz officials expressed regret that no one from Chisinau had accepted the invitation to take part in the celebrations. This was seen by Gagauz lawmakers to cause even more tension in Gagauzia’s relations with the central government of Moldova. The Speaker of the People’s Assembly said in his speech that if the Moldovan authorities failed to adjust national legislation to accommodate Gagauz laws, the Gagauz authorities would have to re-activate the 1990 declaration of independence and set up their own state structures (BASA-PRESS 2001). Such rhetoric meant that Gagauzia was again considering confrontation with the central government by re-launching the secessionist agenda of 1990. The very selection of 19 August 1990 for the celebration was itself symbolic. It recalled the sharp disagreements between Comrat and Chisinau when the Gagauz were determined to break away from Moldova. The message sent by these celebrations from Comrat to Chisinau was that a serious worsening of their relations was still possible. The Governor of Gagauzia stated in early September 2001 that: “Today, we are a territory which is discriminated against,” and added that “the non-attentiveness of Moldova is pushing us into the embrace of Transdniestria. We have explained it all to the President of Moldova but nothing has changed.”26 On 11 September 2001, the People’s Assembly adopted a Resolution “On the Socio-political, Financial and Economic Situation in Gagauzia”, which stated that the highest leadership of Moldova “deliberately does not implement” the resolution of the Moldovan parliament of 23 December 1994 “On the Implementation of the Law on the Special Legal Status of Gagauzia (Gagauz Yeri)”. The Speaker of the People’s Assembly claimed that the new leadership of Moldova had done nothing to change the situation by which the government is attempting to revise this law while simultaneously blocking the amendments to the Constitution on the division of competences between Chisinau and Comrat. Moreover, Gagauzia’s right to form its own budget is constantly violated. As a result, Gagauzia is suffering considerable financial and economic losses each year. Chisinau has attempted several times to privatize properties of Gagauzia without the knowledge and consent of the Gagauzian authorities. The People’s Assembly then concluded that the destructive methods of Chisinau “can totally undermine the confidence of the people of Gagauzia.”27 A Moldovan newspaper reported that the Gagauz 26 7 September 2001 interview with Mr D. Croitor, the Governor of Gagauzia in Comrat. 27 See Nezavisimaya Gazeta, 22 September 2001, at http://www.ng.ru/cis/2001-0922/5_nega.html.

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have threatened to boycott the upcoming local elections because of their disappointment with the government (Tkachuk 2001). By the beginning of 2002, the general political situation in Moldova had deteriorated considerably. Negotiations with the breakaway region of Transdniestria had broken down and been replaced by mutual accusations. The decisions of the Ministry of Education to start compulsory Russian in the second year of elementary school instead of the fifth year, and to replace the high school course “History of Romanians” with a new “History of Moldova” course helped some political factions to mobilize thousands of people, including schoolchildren, for daily anti-government, anti-communist protest demonstrations in the centre of Chisinau from the beginning of January. These demonstrations continued even after the Minister of Education reversed these decisions and resigned at the end of February.28 In addition, the President of Moldova promulgated a new law on 25 January 2002 on the administrative-territorial organization that re-established the thirtytwo districts (rayons), which had existed until 1998. For a swift implementation of this law, extraordinary local elections were set for 7 April 2002. This decision meant cutting the mandates of sitting local governments by one year, which naturally caused protests among those elected. Gagauzia, having their own schedule of elections, was clearly against April 2002 elections. Finally, the Constitutional Court ruled that the terms of elected officials must be honoured and the next local elections could only take place in May 2003 as originally scheduled. While Gagauzia has no need to go back to the district system (rayons) as it did not abolish its three districts in 1998 when the previous law on administrativeterritorial arrangement was enforced, the new law, nevertheless, causes a fundamental problem for Gagauzia. So far, the districts of Gagauzia only have heads of administration, appointed by the Bashkan, but no elected councils. Councils are elected at the local level, in villages and towns. In May 2003, the councils in all districts of Moldova were to be elected and would then report directly to Chisinau. This threatened to leave the administration of Gagauzia without any meaningful business unless the law is changed to take the existence of the Gagauz autonomous region into account. But more importantly, in the beginning of 2002, the central authorities launched accusations of corruption against the leaders of Gagauzia, including the Bashkan and the Speaker of the People’s Assembly, by invoking the results of investigations of the State Auditing Chamber, which had been completed in August 2001. On 31 January 2002, referring to that investigation, a group of members of the People’s Assembly of Gagauzia, allegedly inspired and supported by the central authorities, adopted a decision to dismiss the Bashkan and to call a referendum in Gagauzia for approval of this decision. However, because of several violations of Moldovan and Gagauzian laws in the process of adoption, other members of 28

These demonstrations ended only after the Parliamentary Assembly of the Council of Europe on 24 April 2002 adopted its Resolution 1280 (2002), “Functioning of Democratic Institutions in Moldova.”

10  Gagauzia and Moldova: Experiences in Power-sharing

the People’s Assembly and legal experts of Gagauzia considered these decisions illegal. Crucially, the decision to dismiss the Bashkan did not get the two-thirds majority as required by the 1994 Law, remaining two votes short of the necessary twenty-three. On 5 February 2002, the OSCE Mission to Moldova issued a press release “Leadership of the Gagauzian Autonomy Under Attack” in which it noted “with deep concern a number of activities carried out in recent days against the democratically elected authorities of Gagauzian Autonomy.” Apart from the decisions taken by the group of deputies of the People’s Assembly, the press release also referred to a 2 February attempt to take over the TV station in Comrat by the same group together with Moldovan security agents. Further, it mentioned the decree of the Minister of Interior to temporarily dismiss the Chief of the Administration of Interior of Gagauzia and the police chiefs of two Gagauzian districts without prior agreement with Gagauz authorities, and thus in violation of the 1994 Law. Meanwhile, the situation in and around Gagauzia became more complicated. Moldovan troops and special forces were moved closer to Gagauzia. On 8 February, the same group of disgruntled People’s Assembly deputies, ignoring proper procedures once again, adopted a decision to set the date of a Gagauzian referendum on the dismissal of the Bashkan for 24 February. On 9 February, the president of Moldova, speaking on the national television, supported the referendum and urged the Gagauz to participate in it. The confrontation between Gagauzia and central authorities was again escalating. Chisinau claimed that the leadership of Gagauzia was corrupt and had no right to remain in office. Comrat maintained that the communist government of Moldova wanted to dissolve the inconvenient autonomous region and subject its territory to direct rule by the President of Moldova. With the assistance of Transdniestria, Gagauzia launched its websites www.sos-gagauz.narod.ru and later www.gagauz-press.narod.ru to publicize its situation. On 12 February, the Bashkan issued a memorandum for the media in which he revealed having received warnings from Chisinau to resign or risk his life.29 On 13 February, opposition deputies of the People’s Assembly established the electoral commission for the referendum. On 17 and 18 February, the Bashkan issued decrees, prohibiting all preparations for the referendum and declaring agitation to that end as illegal activities. Nevertheless, on 23 February, some 100 police and security workers arrived in Comrat from Chisinau to protect the polling stations of the referendum. Gagauzian police, together with local volunteers, forced them out of the region and established additional security measures on the border of Gagauzia. The authorities of Comrat closed and sealed the local office of the Moldovan Information and Security Service twice – on 23 and 27 February. In regard to this, the Procurator General of Moldova initiated a criminal investigation on 27 February into the allegedly illegal actions of the Bashkan, of the Speaker of the People’s Assembly, and of the Head of the Legal and Protocol 29 See http://www.gagauz-press.narod.ru/o-08.htm; also in Moldavskie vedomosti, 16 February 2002, at http://www.vedomosti.md/index.asp?doc=1_2.

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Department of the People’s Assembly. Meanwhile, the 24 February referendum failed when only 18% of the voters took part in it. On 4 March, the president of Moldova, speaking in a Moldovan TV broadcast, accused the Bashkan and the Speaker of the People’s Assembly of having ‘sold themselves’ to Transdniestrian authorities and of having stolen large amounts of humanitarian aid provided by Turkey. Three days later, the Baskhan and the Speaker of the People’s Assembly sued the president for slander,30 while the Head of the Legal and Protocol Department of the People’s Assembly, who was also the Representative of Gagauzia in Transdniestria, was arrested in his Comrat office and taken to Chisinau by armed Moldovan security agents. On 7 March, the Bashkan also sued the People’s Assembly for its decisions of 31 January on the dismissal of the Bashkan, of 8 February on establishing the date of the referendum, and of 13 February on creating electoral bodies for the referendum.31 On 11 March, the Gagauz leadership issued appeals to the media, to foreign ambassadors in Moldova, and to the OSCE and other international organizations, asking for help in arranging a meeting with the president of Moldova. The ensuing contact of foreign diplomats with the president might have helped. On 20 March, the president of Moldova had long-awaited meetings with the Bashkan and with a group of cooperative members of the People’s Assembly. In the press, these meetings were characterized as constructive and as the beginning of a new phase in relations between Chisinau and Comrat. At the meeting, the Bashkan suggested that feeding the president with one-sided and distorted information on the problems of Gagauzia had been the cause of the crisis. The Bashkan and the President agreed to have monthly meetings in the future to discuss pressing issues. The president promised to activate the harmonization of legislation, to hold a meeting of the Moldovan government in Comrat, and called upon the members of the People’s Assembly to declare a moratorium on their disagreements.32 International mediation between the various conflicting parties in Moldova continued. In early April 2002, the OSCE HCNM paid a three-day visit to Moldova, during which he commented on the turbulent political climate there, including the situation in Gagauzia, and stressed the need for constructive dialogue and appealed to all parties to respect the rule of law and to follow democratic procedures.33 Soon after this, on 15 April, the Executive Committee of Gagauzia resigned voluntarily because, as it announced it could not fulfil its responsibilities due to the

30 See http://www.gagauz-press.narod.ru/o-31.htm; and http://www.gagauz-press.narod.ru/o-31.htm. 31 See http://www.gagauz-press.narod.ru/o-29.htm. 32 See Nezavisimaya Moldova, 21 March 2002, at http://www.nm.md/daily/ news/2002/03/21.html#1; see a more detailed account of the meetings at http://www. gagauz-press.narod.ru/013-20-03.htm. 33 See http://www.osce.org/news/generate.php3?news_id=2395.

10  Gagauzia and Moldova: Experiences in Power-sharing

split in the People’s Assembly.34 According to the law, the Bashkan had to appoint a new Executive Committee and send it to the People’s Assembly for approval. However, on 24 May, this approval became unlikely when it appeared that the opposition in the People’s Assembly had acquired three additional members, which secured the necessary majority to dismiss the Speaker and to elect the leader of the opposition into that office. D

Future Prospects

The prospects of the autonomy arrangement in Gagauzia for the near future depend considerably on how Chisinau and Comrat can resolve their disagreements; in particular, how the legislative acts bearing on the special status of Gagauzia can be harmonized. The thorniest issue seems to be the amendments to the Moldovan Constitution that have reached the Constitutional Court before they have been processed by the parliament. They have also been reviewed by the Venice Commission. Draft amendments provided by Chisinau and Comrat were fundamentally different. While Chisinau tried to write the autonomy of Gagauzia into the Constitution, though not very convincingly according to the Gagauzian side, the latter proposed amendments that would constitute Moldova as a federation. As a result, neither the OSCE nor the Moldovan side supported the Gagauzian draft, which was rejected and did not reach the Constitutional Court. It was expected that the Court would give its opinion of the Moldovan draft in April 2002, but this did not happen. In July 2002, the negotiations between Moldova and Transdniestria took a new turn as international actors, such as the OSCE, introduced a notion of a federal state into the negotiations on the status of Transdniestria. In February 2003, the president of Moldova proposed to Transdniestria the drafting of a new Constitution of the Republic of Moldova. (International Crisis Group 2003: 8–11) This was, however, not implemented. Whether Gagauzia becomes a member of the Moldovan federation or remains an autonomous unit will be decided by the negotiations on the federalization of Moldova. Gagauzia has not been invited to participate in these negotiations. However, it can be assumed that if a new Moldovan constitution is adopted, the status of Gagauzia will be given due attention and the problems of power-sharing that have overshadowed the relations between Gagauzia and the central government so far will be avoided by more sophisticated constitutional stipulations. As previously mentioned, during the harmonization of Moldovan laws with the legal status of Gagauzia, the new law on administrative-territorial organization needs to be adjusted in order not to turn the Gagauz autonomous region into an empty concept. Finally, it would be helpful if the court cases brought against the leaders of Gagauzia and the president of Moldova could reach amicable solutions so as to avoid fuelling new conflicts. 34

See Moldavskie vedomosti, 24 April 2002, http://www.vedomosti.md/index.asp?doc=1_ 2&nom=450.

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Fortunately, the relations of different ethnic groups in Moldova have traditionally been peaceful. However, sociological evaluation of interethnic tolerance in Moldova in 2000 showed that, while the majority of respondents considered interethnic relations as normal and good, one third of the respondents considered these relations to be hostile and tense. Therefore, a latent psychological potential for aggravation of interethnic relations does exist and these relations have to handled very carefully (UNDP 2001a). It means that the parties to the power-sharing agreement should not push their demands too far or too forcefully, and, most importantly, they should avoid ethnic mobilization at all costs. VII Concluding Remarks A post-communist state faces formidable challenges. It is supposed to simultaneously transform itself into a multiparty democracy, to carry out ownership reform together with the introduction of a market economy, to build up new state institutions, often from scratch, and last, but not least, to enforce the rule of law. In theory, these transitions are deemed to support one another because democracy, a market economy, and the rule of law are all sine qua non elements of the Western states where they do function together. In post-communist practice, however, the early phases of transition to these essential elements do not produce much synergy. On the contrary, the simultaneous transitions are often at crosspurposes. For example, the participants in privatization, the infamous ‘new’ Russians, Estonians, Moldovans, etc., are not interested in transparency, or in the rule of law; while trying to maximize its political and economic power, no group is prepared to share this power with others, let alone with ethnic minorities. In short, rules of formation of a socio-political system are quite different from the rules governing its functioning. The frictions between these different transitions produce a weak state, which may seek to overcome its weakness by centralizing power and financial resources. Inefficient collection of taxes allowing for massive tax avoidance, big regional differences and starving social programmes, which all ask for state-level action, are only a few reasons driving a strong tendency towards centralization and a reluctance to share power with regions or others. Therefore, power-sharing in post-communist, transitional settings will not be ensured by the precision or succinctness of the wording of a law or of an agreement. Nor will it be entrenched by noble appeals of high-minded and enlightened personalities to promote democracy. Rather, it will be accepted only in those exceptional cases, if at all, when it appears to be the only way to avoid the dangers of social disruption, armed conflict, and chaos. Moreover, when the imminent dangers seem to have vanished, the implementation of power-sharing may well stall and new tensions develop, which is precisely what has happened to the power-sharing arrangement between Gagauzia and Moldova at times. In 2002, after almost eight years since its enactment, the Gagauzian autonomous region was facing challenges not only in its relations with the central government but also internally because of the political confrontation between the

10  Gagauzia and Moldova: Experiences in Power-sharing

People’s Assembly and the Executive Committee of Gagauzia. The internal conflict developed step by step under the influence of the external one with Chisinau. The authorities of Moldova, obviously dissatisfied with the recurrent demands of the Gagauzian leadership to amend the Constitution, let alone national legislation, and irritated by Gagauzia’s ongoing cooperation with Transdniestria, brought charges of misuse of public funds against the leaders of Gagauzia and appealed to the population and lawmakers of the autonomous region to decide the fate of their leaders at a local referendum. This referendum, prohibited by the Gagauzian authorities, failed to produce any convincing results. However, the cooperation between the Executive Committee of Gagauzia and People’s Assembly was paralyzed, as the majority of the latter had become opposed to the Executive. To avoid further escalation of this confrontation, the mediation of foreign diplomats in Chisinau was needed to restore the communication between the President of Moldova and the Bashkan. At the national level, with the help of international bodies such as the Parliamentary Assembly of the Council of Europe and the European Commission for Democracy Through Law (Venice Commission), efforts were made to ensure stability in the region and to defuse chronic disagreements over compatibility of national laws with the 1994 Law. In these efforts, an important role went to the discussion and refinement of additions to the Constitution of Moldova in order to create explicit constitutional guarantees for the Gagauzian autonomy and to resolve the contradictions between the 1994 Law and some articles of the Constitution. The experience of power-sharing between Moldova and its autonomous region of Gagauzia has displayed a pattern of recurrent need of international assistance at different levels and of various magnitudes whenever the disagreements between the two sides tended to escalate into serious dispute due to contradictory interpretations of the 1994 Law and/or because its implementation was perceived as wrong by one side. These disagreements have stemmed to a large extent from the ambiguously formulated articles of the 1994 law on the status of Gagauzia, which gave rise to incompatible expectations and attitudes, particularly on economic and financial matters. Sometimes, insufficient administrative capacity, arbitrary decision-making and improvised action have considerably aggravated the existing disagreements and transformed them into serious confrontations. These two factors – shortcomings in the power-sharing agreement and an imperfect administrative (and political) culture – can be held responsible for the uneasy development of power-sharing between Moldova and its autonomous region of Gagauzia. The availability of international assistance during the turbulent periods of this development has been crucial for its continuation.

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Chapter 11 Case Study of the Conflict in South Ossetia Ketevan Tsikhelashvili and Natasha Ubilava*

I

Introduction

Following nearly three years of irregular armed confrontation, the breakaway region of South Ossetia has been enjoying relative peace brought about by a ceasefire in 1992. Unfortunately, formal peacemaking has ceased there. The conflict has remained politically ‘frozen’ as negotiations have failed to yield any genuine settlement for more than a decade. In the absence of a formal settlement, however, a rather peculiar informal peace arrangement emerged out of local and international initiatives and needs-driven transactions. Initially, segmented functional interactions were maintained by previously opposed groups. Over time, internationally-sponsored bilateral contacts and joint activities of all conflicting sides have gradually forged multifaceted interactions that are based upon an informal/semi-formal power-sharing principle. This ‘bot*



The authors would like to acknowledge the valuable comments from Emmanuel Anquetil (Project Manager, European Commission Delegation in Georgia), Jonathon Cohen (Caucasus Programme Manager, Conciliation Resources, London), Bruno Coppieters, (Associate Professor and Head of the Department of Political Science, Vrije Universiteit Brussel [Free University of Brussels]), S. Neil MacFarlane, (Lester B. Pearson Professor of International Relations, University of Oxford), Klaus Rasmussen (Political Officer, OSCE Mission to Georgia), and Ermina Van Hoye (Special Assistant to the Special Representative of the Secretary-General for Georgia UNOMIG). South Ossetia is a breakaway region of the territory of Georgia. It is also referred to as “Tskhinvali Region,” “Samachablo” or “Shida Kartli” in different sources, each evoking tense debates between Ossetians and Georgians. Ossetians argue for “South Ossetia,” which emphasizes the desired territorial and ethnocultural political affinity with North Ossetia. Georgians prefer “Samachablo” or “Tskhinvali region,” which is used in official documentation. As “South Ossetia” is most frequently used in common and diplomatic parlance, it will be used hereafter without political or any other connotation. Tskhinvali itself is the regional capital.

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 345-381

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tom-up’ development of power-sharing, from incremental cooperation at the ‘grassroots’ level towards more formalized arrangements, may ultimately pave the way for a congruous settlement, possibly embracing ‘vertical’ components of conflict resolution. Currently, however, the existing network of field-specific arrangements exclusively targets ‘horizontal’ aspects of self-regulation. Provisionally, such a pattern could be described as ‘grassroots’, ‘horizontal’, or ‘informal/ semi-formal’ power-sharing. The South Ossetian experience suggests that a formal agreement may not be a necessary prerequisite for meaningful movement towards dispute settlement. It demonstrates that genuine and practical grassroots cooperation can function without an overarching political settlement spelling out the terms of engagement. In South Ossetia, these terms of engagement tend to be dictated by the needs of daily life that transcend ethnic barriers and cannot wait for a long-overdue political resolution. Mostly unwritten and largely assumed, these rules govern an intricate and delicate pattern of needs-based and project-specific interactions at informal or semi-formal levels. What remains puzzling and compelling about this case is the exceptional combination of internal and external factors that has prompted significant low-level cooperation without a comprehensive settlement. South Ossetia can be viewed as unique in comparison to the other case studies in the Resolving Self-determination Disputes using Complex Power-sharing project, where officially recognized complex power-sharing arrangements have been implemented or are being implemented. This case thus may challenge the conventional understanding of resolving self-determination conflicts. It goes beyond the existing framework that complex power-sharing theory has offered for dispute settlement. Perhaps, it may even offer a novel way of addressing self-determination issues, at least in the short term. II

Approach

Because of its unique qualities, South Ossetia does not readily fit into the traditional analysis of complex power-sharing arrangements. To date, there has been no systemic exploration of conflict settlement with a focus on practical achievements at the horizontal level such as in South Ossetia. Research thus far has mainly concentrated on the ebb and flow of political developments with regard to a longawaited but still uncompleted formal solution. The lack of systematic data on informal power-sharing practices in South Ossetia further complicates the analysis. A tailored approach was developed for the exploration of the South Ossetian case. During field research in Georgia in the summer of 2001, information was collected from various primary sources such as official documentation and interviews with officials, independent experts and representatives of international as well as local governmental and nongovernmental organizations. The objective was twofold: firstly, to identify case-specific factors, whether internal or external, that have enabled and continue to facilitate bilateral or multilateral cooperation; and, secondly, to examine the areas, channels, and patterns of the existing powersharing practices.

11  Case Study of the Conflict in South Ossetia

To address the first research objective, this chapter begins with a brief account of the origins, scope, and dynamics of the conflict in South Ossetia. It not only gives a general context but also examines the reasons for the failed political process. The following section, predictably, explores the second research objective and provides a detailed study of grassroots power-sharing that focuses on the participants as well as on the level and scope of their involvement. It attempts to analyze which parties, internal or external, were best-positioned to capitalize on ‘relative peace’ and what were the most urgent and politically least sensitive issues that triggered cooperation. The findings of this section ultimately inform a discussion about potential long-term conflict resolution in the region. Perhaps more importantly, though, they may provide powerful implications for the concept and application of complex power-sharing. Comparison with Abkhazia, another unresolved ethnic dispute in Georgia, highlights the unique character of the South Ossetia experience. Whereas joint efforts produced practical arrangements in the latter case, peaceful initiatives yielded neither political nor pragmatic rapprochement in the former. It is particularly interesting to explore the reasons for the different post-conflict development in two cases that are similar in many other aspects. III The Conflict in South Ossetia Little in the origins of the conflict in South Ossetia suggested an extraordinarily complex and unique outcome, as the hostilities initially unfolded in a similar fashion to other self-determination disputes erupting in the post-Soviet era. The major source of confrontation can be found in the destructive effects of the Kremlin’s ‘nationality policies’ that created political and economic inequality among the USSR’s many ethnic groups and further accentuated any pre-existing conflicts. Underlying tensions became extremely sensitive after the collapse of the Soviet Union, as the central government could no longer keep a lid on the boiling cauldron of ethnic frustrations. Domestically, ultranationalist policies of the Georgian federal government clashed badly with uncompromising separatist ambitions in South Ossetia. Externally, Russia’s sedulous endeavours to maintain influence over the Caucasus region largely came at the cost of instigating destabilization and further exacerbated the confrontations. A favourable combination of certain internal and external factors helped South Ossetia escape the trappings of other ethnic disputes that still remain unresolved in the post-Soviet area. Some of these features were inherent to the region where Georgians and Ossetians had maintained a largely peaceful coexistence prior to Soviet rule. As a result, the armed confrontation was smaller both in terms of scale and intensity, producing less physical and emotional damage than in a number of other post-Soviet conflicts. The change in political regimes in both capitals – Tbilisi and Tskhinvali – also helped to bury the hatchet as the new 

In September 1993, the more moderate Ludwig Chibirov replaced incumbent ‘President’ Torez Kulumbegov, who was the leader of the Ossetian extremist movement.

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governments could blame their predecessors for past mistakes and embark on fresh ideas for collaboration. As the conflict had evolved, a number of external factors came into play that ultimately reinforced the positive achievements of local peace initiatives and created new platforms for cooperation. In this respect, international organizations proved vital as they managed to largely stay out of the political controversy and focus more on diplomacy and cooperation on practical issues. Their flexibility and less-politicized approach allowed for progress in other spheres once it became clear that political negotiations were deadlocked. Furthermore, it appears that there were few external powers with strong vested interests in destabilizing the region. Unlike the Abkhazian nationalists, South Ossetian leaders found only limited support for their secessionist cause abroad. Russia, which played a negative role in Abkhazia, ultimately acted more ambiguously towards South Ossetia: stirring up hostilities, on the one hand, while effectively maintaining a ceasefire, on the other. Even their direct kinsmen in North Ossetia somewhat distanced themselves from the South Ossetian extremists and supported the peace process. The following section examines the various factors in order to understand how they emerged and ultimately contributed to the development of horizontal power-sharing in South Ossetia. A

Internal Factors

1 Conflict Origins The origins of the present day conflict in South Ossetia closely followed the blueprint of ethnic self-determination disputes masterminded by the Soviet ‘nationality policy’ strategists. Dating back to the early days of Soviet rule, this policy was part of an overall ‘dual’ strategy that ensured tight control over artificially created Matryoshka-type federal territorial arrangements. It granted separate territorial political status to utterly different nations and ethnicities. This dual strategy combined the policies of ‘homogenization’ at the macro level (aiming at the integration of all ethnicities into the ‘Common Soviet People’) and the socalled ‘nationalities policies’ at the micro level (implying institutionalization of peripheral ethnopolitical and ethnocultural identities). The latter, in essence, was a practical application of the age-old divide et impera (divide-and-rule) principle. Cunningly, the ethnic differences were reified to the extent where units would



Chibirov was in office until December 2001. President Zviad Gamsakhurdia’s ultranationalist government in Tbilisi was ousted in January 1992. Eduard Shevardnadze, who came to power in March 1992, remained president until 23 November 2003. The Matryoshka (nesting doll) principle implied a complicated ethnofederal subordination of units and sub-units within the Soviet Union. The fifteen Union Republics had the highest rank status, followed by the Autonomous Republics, and then the Autonomous Regions/Oblasts (Nodia 1998: 22-23; Coppieters 1999: 16-23).

11  Case Study of the Conflict in South Ossetia

continuously compete with and counterbalance one another so that none of them could gain too much strength. The damaging results of this ‘nationality policy’ could hardly be overstated as these Matryoshka units began to explode one-by-one following the collapse of the Soviet Union. Glasnost and Perestroika introduced previously taboo freedoms and rights that incited the claims for self-determination of the Union Republics and their autonomous sub-units. The full impact of the divide-and-rule policy pursued by the Kremlin was displayed upon the collapse of the Soviet empire when the ruler disappeared but the divided community lines remained. The power vacuum at the top left power-hungry ‘titular nations’ scrambling for whatever influence and resources were suddenly available at the bottom. South Ossetia was fertile soil for this kind of power struggle. Throughout the years of Soviet rule, Ossetians had felt disadvantaged in several respects. Politically, they held the status of an autonomous oblast within Georgia, thus ranked a step below the status of the self-governing autonomous republics of Abkhazia and Adjara. Accordingly, South Ossetia’s legal powers were inferior to those of Abkhazia and Adjara. South Ossetia had suffered economically as well. While hardly an area of significant economic potential, the region fell short of the prosperity and well-developed infrastructure enjoyed by its immediate rivals – Abkhazia and Adjara. In the aftermath of Georgian independence, South Ossetia promptly attempted to upgrade its inferior political status to a level equal to that of Abkhazia, which was thought to enjoy the greatest sovereignty rights in the country. Tbilisi denied this request as it represented a potential threat to the region’s Georgian population. Underlying ethnic tensions were further fuelled by an ultranationalistic language programme propagated by the newly-elected federal government in Tbilisi. South Ossetian authorities retaliated with equally nationalistic, if not discriminatory, policies, which brought Georgians onto the streets and, eventually, into the first clashes with local militia on 23 November 1989. The first year of conflict was marked by sporadic violence, but by December 1990 full-scale military confrontation became inevitable as Georgians and Ossetians grew increasingly antagonistic. The Georgian Supreme Court barred the South Ossetian People’s Shrine – a secessionist political party – from participating in the forthcoming first parliamentary elections. In return, Ossetians raised their demands from enhanced autonomy to the status of Union Republic, which meant    

The right to self-determination of the Union Republics was nominally protected by the Constitution of the Soviet Union but its practice was never allowed. Each national group that was granted the right to a separate territorial unit was recognized as a ‘titular nation’ and, correspondingly, enjoyed political privileges and access to power. Six people were killed and twenty-seven injured during the following two days (Komsomolskaya Pravda, 26 December 1990; Human Rights Watch/Helsinki 1992: 7). The South Ossetian People’s Shrine actively supported preceding Abkhaz demands for secession (Fuller 1991: 21).

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secession from Georgia. The ultranationalist Georgian government responded by abolishing all autonomy rights for South Ossetia and introducing militia to the Tskhinvali and Djava regions. This episode led to renewed armed confrontation, and the following months turned the Tskhinvali regional centre and surrounding territories into a theatre of brutal street battles, barricades, and chaotic shooting. From that point, the armed dispute between the Ossetians and Georgians lasted, with interludes, until the July 1992 ceasefire. The conflict brought about more than 1,000 deaths and around 60,000 internally displaced persons (IDPs) and refugees – both ethnic Ossets, who fled mostly to North Ossetia, and Georgians, who sought shelter in Georgia proper. The war damage in South Ossetia was further aggravated by a coincident strong earthquake, epicentred in the Djava-Tskhinvali region, which seriously damaged economic infrastructure and destroyed housing. 2 Past Relations In general, Ossetians and Georgians have a record of largely peaceful coexistence, especially when compared to the turbulent Abkhaz-Georgian relations. High rates of intermarriage and large numbers of Ossetians living outside of South Ossetia testify to moderate relations between Georgians and Ossetians. Interestingly, and perhaps even ironically, the first incident of interethnic confrontation coincided with Georgia’s brief independence in 1918–1921. Georgia’s Menshevik government accused Ossetians of collaborating with Russian and Georgian Bolsheviks, who fought to usurp their power and reunite Georgia with Russia (MacFarlane, Minear, and Shenfield 1996: 14). In 1918–1920, the series of strong uprisings of Ossetians claiming independence were deemed as Bolshevik provocations and an ‘aperture’ to Russian annexation of Georgia in 1921. In the aftermath, Georgians blamed Ossetians for contributing largely to the loss of independence, while Ossetians, for their part, were embittered by the experience of Georgian-led supressions. The period gave rise to ill feelings between the communities. A similar confrontation occurred in Georgian-Abkhaz relations in the same period. However, unlike those, Georgian-Osset relations eventually returned to normal. Here, the Kremlin intrigues failed to further magnify tensions at the intercommunal level as they did in Abkhazia. Because of its greater economic and strategic appeal, Moscow was more involved in, and, thus, achieved greater impact in Abkhazia. Abkhazia’s riches, whether innate or inflated by Moscow’s favouritism, fuelled among its ethnic groups a bitter power struggle for ultimate control of resources. In contrast, South Ossetia was hardly a region of signifi 

Figures on casualties differ, although most agree on around 1,000 deaths (Cvetkovski 1996: para 4.1; MacFarlane, Minear, and Shenfield 1996: 8). Figures on refugees and IDPs vary considerably across different sources. The above figures reflect the data provided by UNOCHA (March 2001) and UNHCR (June 2001), which estimate that approximately 60,000 people, mostly Ossets, were displaced.

11  Case Study of the Conflict in South Ossetia

cant economic or strategic value and, hence, political stakes were lower both for Moscow and local ethnic groups. Furthermore, South Ossetia proved less susceptible to political manipulation from above. Ossetians, as a sizeable majority in their autonomous unit, felt less vulnerable and sensitive to Soviet ethnic policy. Abkhazians, however, were a small minority and thus appeared more exposed. Consequently, ethnic relations in South Ossetia suffered from latent tension to a lesser degree than in Abkhazia. A relatively ‘clean sheet’ of local interethnic relations prior to and after the 1918–1921 incident helps explain the lower intensity of hostilities in the GeorgianOssetian confrontation. Firstly, it signals a lack of deep-seated rancour among the two ethnic groups. It also allows for the externalization of the causes of the conflict, at least partially. Given the relatively short history of the conflict, it may be easier to identify the circumstances that produced the initial confrontation and, thereby, to prevent the spread of resentment to other areas of interethnic relations. 3 Demographics The ethno-demographic balance in pre- as well as post-conflict South Ossetia has provided a conducive environment for potential settlement. Ethnic Ossetians comprised 3% of the total population of Georgia, and before the war 60% of Ossetians were dispersed over the rest of the country rather than living in their autonomous province. Here, the remaining 40% of Ossetians enjoyed a majority of 66%.10 This figure presumably grew following the exodus of Georgian refugees during the fighting. The large proportion of Ossetians living outside South Ossetia further indicates the lack of significant tensions prior to the conflict. Within South Ossetia itself, their numerical dominance led to little sense of insecurity among the Ossetians. They were less preoccupied with alleged threats of assimilation or the so-called ‘Georgianization’ than the Abkhaz (Hewitt 1996: 202–210). The demographic balance made Ossetians less vulnerable in this regard and created more space for constructive conflict regulation. This would still apply even if full repatriation of the Georgian refugees occurred. In fact, some displaced Georgians have already returned to their homes in South Ossetia. At this stage, the repatriation process is hampered more by the depressed socioeconomic conditions and legal ambiguities regarding the restoration of property rights than by political and security problems. Abkhazia paints a greatly contrasting picture. Mass expulsion of Georgians from the region has converted Abkhazians from a minority (17%) into the absolute majority. Hence, the So(u)hkumi11 de facto authorities undoubtedly understand that the return of Georgian refugees would restore the original demographic bal10 11

Figure taken from the 1989 population census. More recent official data is not available, as the 2001 population census in Georgia did not cover the two zones of conflict in Abkhazia and South Ossetia. So(u)khumi is the capital of Abkhazia.

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ance, which was regarded as unfavourable to the Abkhazians. Moreover, it would challenge, if not deprive, the incumbent regime of public legitimacy, as it would no longer be representative of its constituency. The So(u)khumi fears of losing power and reverting to a minority are so strong that they make the repatriation of IDPs a major obstacle in Georgian-Abkhaz negotiations. Together with other hindrances, such as sporadic violence or ineffectiveness of external involvement, the impeded repatriation process undermines peace efforts both in the political and public domains. Thus, social reintegration and reconciliation of the two communities in Abkhazia are not in sight. More importantly, there is another significant difference between these two cases. South Ossetia did not suffer a deliberate ‘ethnic cleansing’12 policy, which resulted in the substantial expulsion of one ethnic population. Approximately 266,000 Georgians fled their homes in Abkhazia within a shockingly short time.13 They constituted almost the entire Georgian population of the region, with the exception of the few villages in Gali rayon that border the Georgian interior. The devastating results of such a massive exodus can hardly be overstated. Unlike in South Ossetia, in Abkhazia several counties have been fully deserted by Georgians, thereby undermining and effectively eliminating an opportunity for cooperation, especially at the grassroots level. With the prospects of their repatriation bleak, there is little hope that Abkhazia will be able to enjoy the benefits of informal, spontaneous power-sharing arrangements. 4 Sporadic Warfare The warfare in South Ossetia was of a smaller scale and intensity as well as more sporadic and disorganized than that in Abkhazia. Additional Georgian militia groups were officially deployed in the region for only a year after the first clashes between Georgian civilians and Ossetian forces in November 1989. There were few large military operations that involved a massive build-up of equipment and combatants from either side, again unlike those in Abkhazia.

12

13

The mass expulsion and harassment of Georgians in Abkhazia has been qualified as ‘ethnic cleansing’ by the Georgians. The OSCE, in its Declarations of the OSCE Summit in Lisbon (1 December 1996: 20) and the OSCE Summit in Istanbul (19 November 1999: 17) also use this term. The UN has never officially recognized the fact of ‘ethnic cleansing’ of Georgians, although the UN Security Council has many times reiterated its “deep concern about the humanitarian suffering” and “numerous notifications on ‘ethnic cleansing’ and other serious violations of the international humanitarian law” (UN Security Council Resolution 876/1993). UN Economic and Social Council, Specific Groups and Individuals, Commission on Human Rights, 57th session, 25 January 2001. However, in different sources the numbers for IDPs and refugees vary. The Ministry of Refugees and Accommodation of Georgia (MRA) originally registered 259,656 IDPs, which coincides with UNHCR estimates. However, in 1997 MRA increased this up to approximately 268,072. The US State Department estimates range from some 230,000 to 250,000 people displaced from Abkhazia by 1993 (US State Department 1993: 877, 881).

11  Case Study of the Conflict in South Ossetia

To separate combatants and prevent a resumption of hostilities, 500 Russian/ Soviet interior soldiers were deployed in 1990. These troops stayed in the region for a year (Human Rights Watch/Helsinki 1992: 13). There is evidence to suggest that mercenaries from abroad, namely North Caucasian or Russian, were also involved, in addition to armed units of the direct conflict parties The scale of their participation, though, was significantly lower in Ossetia than in Abkhazia, where entire squads were made up of foreign fighters (Human Rights Watch 1995: 19, 33, 42-44). The local population also took part in sporadic street clashes in Tskhinvali. Although there were Ossetian and Georgian partisan movements, in South Ossetia guerrillas never became entrenched in a single stronghold from where they could continue fighting even after the ceasefire. Also, because of the lack of central command and coordination between small paramilitary groupings, the lines between criminal and military activities were blurred on both sides.14 The lower scale of hostilities had a similar effect on the South Ossetian conflict as the fairly good record of ethnic relations did. It spared the region from the potentially heavy burden of physical and emotional destruction that more intense warfare would have caused. Although heartbreaking in itself, the level of destruction and human tragedy in South Ossetia pales in comparison to the devastation and the loss of life in Abkhazia. The war in South Ossetia produced more than 1,000 casualties and around 60,000 IDPs of both ethnicities, while the Abkhazian death toll stands at 10,000 and the number of IDPs is an astounding 266,000. Perhaps it is fair to say that peacemaking in Abkhazia is as many times harder as there are so many more victims. 5 Change of Wartime Elites and the ‘Personal’ Factor In the aftermath of the conflict, radical nationalists in both South Ossetia and Georgia were replaced by more moderate political forces. The South Ossetian leader Ludwig Chibirov, who came to power in 1993, was elected ‘president’ in 1996 and held his post until December 2001. Chibirov adhered to a much more balanced and moderate policy in the conflict resolution process than his predecessors – Snaur Gassiyev (1991–1992) and the leader of the Ossetian extremist movement Torez Kulumbegov (1992–1993). Georgian officials, as well as international actors, often stress that progress in the peace process was largely due to the temperate policy of the ruling elite in Tskhinvali. Simultaneously, the wartime elite changed in Georgia. The ousting of President Zviad Gamsakhurdia (1992), who failed to tackle the South Ossetia issue diplomatically, brought to power Shevardnadze’s government. Shevardnadze reversed the tactics and admitted that the escalation of the conflict in South Ossetia was the “biggest mistake” of the Georgian government, implying that they really meant Gamsakhurdia’s leadership (Zverev 1996: 47). Such a political gesture notably defused wartime tensions and further facilitated reconciliation between the two ruling elites. South Ossetian authorities say that they associated the name of 14

Hansen (1998: 11) claims it to be one of the common features of warfare conduct in the Caucasus region.

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Shevardnadze “with the continuation of the settlement of the Georgian-Ossetian conflict.”15 The change of leadership and subsequent moderation of policies pushed the whole negotiation process in a more constructive direction than could have been expected had the wartime elites remained in power. Both Georgian and South Ossetian authorities now emphasized the importance of good collegial and friendly interpersonal relationships between the negotiators. This applied to plenipotentiaries as well as the regional and local administration representatives who demonstrated the goodwill, trust, and confidence necessary for constructive cooperation. In contrast, there was no such change of wartime elites following the Abkhazia conflict. Therefore, a strong antagonism, inherited from the times of war, burdens the process of Georgian-Abkhazian dialogue. However, there remain political groups in South Ossetia that would like to exploit ethnic platforms. The moderate course of Chibirov’s team raised discontent among radical groups in South Ossetia. In their struggle for power, the opposition leaders started to manipulate extremist sentiments.16 In December 2001, a more radical leader – Eduar Kokoid, a successful Russian businessman – came to power17 on the wave of these sentiments. His ‘election’ brought a significant dissonance into the Georgian-Ossetian peace negotiations. He hinted that priority would be given to further integration with North Ossetia/Alanya, while relationships with Georgia would be contractual. Markedly, Kokoid’s first political gesture upon taking office was meant to demonstrate the changed approach of the Tskhinvali new administration: Kokoid demanded personal and public apologies for the conflict in South Ossetia from Eduard Shevardnadze, then president of Georgia. The recent changes in the political regime in Tbilisi have further alarmed the South Ossetian rulers. Public protests forced Shevardnadze to step down on 23 November 2003 and Mikheil Saakasvhili, the leader of Georgia’s United Nationalist Movement, won the extraordinary presidential elections on 4 January 2004.18 Certainly aware of the sensitivities in Tskhinvali, the newly elected president has pledged to use peaceful means to restore the territorial integrity of Georgia. Even if high-level political relations remain uncertain, the progressive pace of Georgian-South Ossetian rapprochement will most likely be maintained, at least at the community and informal/semi-formal level because these relationships are less politicized and mutually beneficial. It is encouraging

15 16 17 18

Ludwig Chibirov at the press conference after a meeting with then State Minister of Georgia Vazha Lortkipanidze, on 23 February 2000 (OSCE 2000a). The claim for Chibirov’s immediate resignation ‘without bloodshed’ was a vivid illustration of opposition pressure by the local radical movement “Hope of Ossetia,” although it failed to attain that goal (OSCE 1999a). Kokoid was the winner of the last ‘presidential elections’, which neither Georgia nor international observers have accepted. Only certain parts of the South Ossetia conflict zone participated in national presidential elections on 4 January 2004.

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that up to now most of the existing power-sharing arrangements at the informal and grassroots level have been largely maintained. 6 Community Modus Vivendi Interethnic relations at the community level are fairly smooth now. A number of factors discussed above (history of peaceful coexistence, high rate of intermarriages, lower scale of conflict in comparison with Abkhazia, etc.), as well as the mutually beneficial trade intercourse, have contributed to a workable modus vivendi at this level. The results of a 1999 social inquiry (mainly among Ossetians living in Tkhsinvali) confirm this (Kontakt 1999: 12). Nearly half of the respondents assessed the situation as “stable enough” and 42% as having “already significantly improved,” with some 20% of them convinced that Georgian-South Ossetian relations will keep progressing in future. B

External Factors

1 Multinational Organizations Initially, international reaction to the South Ossetia conflict was at best marginal, if not utterly passive. This is particularly true for the Western community, which had three reasons for its limited and delayed involvement. Firstly, it did not perceive the Caucasus as a source of immediate security threat, unlike the Balkans,19 for instance, where such a threat was more obvious. Secondly, the West avoided entering Russia’s ‘backyard’ immediately following the collapse of the Soviet Union. Moscow reinforced this restraint when it obtained an international mandate for its self-asserted “special powers as a guarantor of peace and stability in the region of the former Union.”20 Lastly, the larger scale of recent conflicts in Abkhazia and Nagorno-Karabakh overshadowed events in South Ossetia and, subsequently, diverted the international focus away from it. For these reasons, external involvement was rather limited. By the end of 1992, i.e., more than three years into the conflict, there were only three major actors: the Russian Federation, North Ossetia/Alanya within the Russian Federation, and the Commission on Security and Co-operation (CSCE – later the Organization for Security and Co-operation in Europe (OSCE)). Other international organizations, such as the European Union, the United Nations High Commissioner on Refugees (UNHCR), the United Nations Development Programme (UNDP) and the Norwegian Refugee Council (NRC), only became involved later. The scope and pattern of their involvement was intended to follow the multiple-actor 19

Although, in the case of numerous ethnic wars in the former Yugoslavia, the international community still acted with significant and, at times, regrettable delays. 20 On 28 February 1993, Russian President Boris Yeltsin, in a speech to the Civic Union Coalition, declared that “the moment has come when responsible international organizations, including the United Nations, should grant Russia special powers as a guarantor of peace and stability in the region of the former union” (Human Rights Watch/Helsinki 1993; Khachikian 2000: 28).

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model commonly exercised in modern conflict resolution worldwide. However, Western unresponsiveness and Russia’s virtual patronage over the conflict undermined the initial remit and power of international actors in South Ossetia. At first, international organizations were restricted to ‘soft’ and ‘normative’ actions. These mainly included fact-finding missions (‘soft actions’) or reaffirmation of the principles of international law and support of other peace initiatives (‘normative actions’) (Paye and Remacle 1996: 105–110). Notably, in terms of ‘normative actions’, international actors unanimously condemned the South Ossetian claim for secession. The aftermath of the conflict revealed rather different circumstances, where the role of international organizations had to be extended beyond the traditional monitoring of the ceasefire and political mediation. As talks over comprehensive settlement froze, the political leadership in both Georgia and South Ossetia redirected their efforts towards practical issues of immediate or short-term concern. The series of high-ranking meetings between Georgian and South Ossetian authorities were a clear example of this new focus on practical cooperation. Although they did not produce a comprehensive settlement, these summits successfully separated the long-term need for a political solution and the short-term requirements for regulated interactions in practical areas of daily life. Despite international, namely the OSCE, efforts to stimulate a shift from mere manifestations of goodwill to specific political proposals, leaders remained more focused on the horizontal aspects of pragmatic interaction (OSCE 1998). International organizations, especially the OSCE, became an integral part of these negotiations, and subsequently reinforced these processes. At a communal level, international organizations were besieged with grassroots and semi-formal activities that emerged spontaneously and largely ran unsystematically. There was a need to set a formal, if not legal, framework around these activities and international organizations were best placed to serve this purpose. Furthermore, through a series of public diplomacy projects, international organizations themselves introduced a string of new activities that aimed exclusively at horizontal aspects of self-governance and thus stretched international involvement beyond its traditional scope. Despite initial limitations, international organizations proved willing and flexible to adapt to the local context in South Ossetia and to capitalize on the positive factors of the post-conflict détente. Consequently, they have created a more effective mechanism that delivers consistent and productive input into the peace process. Its notable efficacy rests on two underlying principles: firstly, the clear distribution of powers and competencies among the external agents without a large overlap of interests and strategies; and, secondly, a de-politicized approach focussing on practical issues of immediate and short-term priority. The first separation of responsibilities occurred in 1993 when the UN took the lead in Abkhazia, leaving South Ossetia to the OSCE. The OSCE remains the chief political mediator in the region. Together with Russia, it acts as the major international peacekeeper and participant in the Joint Control Commission (JCC). Interestingly, the authority and activities of these two do not clash sig-

11  Case Study of the Conflict in South Ossetia

nificantly; rather, they counterbalance and even complement each other. Even though Russia’s immense influence on the overall peace process remains widely recognized, the powers on the ground are cleared distributed. It may also be the consensus-based decision making at the OSCE – with Russia represented equally with other members – that enables the organization to act as a truly independent party. The OSCE in South Ossetia proved more flexible when compared to the UN in Abkhazia. It managed to move away from purely political mediation towards more active participation in horizontal initiatives on the ground. On the one hand, the scope of priority actions of the OSCE itself was expanded. In 1994, the Permanent Council decided to add the Human Dimensions component to the mandate of its Mission to Georgia. Human rights, democratic institution-building, promotion of free and independent media, and facilitation of cooperation at different communal levels became focal issues. Since 2002, the Office of Economic and Environmental Issues has been dealing with the matters of special security relevance in these fields. In 1996, the OSCE Tskhinvali field office, with political and military representation, was established to complement the regular field missions to the conflict zone and to permanently monitor and report on the situation on the ground. These institutional changes, together with a gradual growth in the size and budget of the Mission, created more space for modification and diversification of field activities. On the other hand, the pragmatic nature of the internal conflict regulation capacities stimulated the OSCE shift towards more practical, non-politicized forums. Therefore, credit should be given to the flexibility of both the organization that capitalized on and further cultivated positive potential as well as to the internal actors who allowed international facilitation to develop in these areas of mutual interest. As enshrined in its mandate, the OSCE continues to facilitate political negotiations through active participation in and support to the Georgian and Ossetian plenipotentiary delegations and direct political dialogue at high levels. It also carries on its initial commitment to liaise with and monitor the Joint Peacekeeping Force (JPKF). Moreover, the OSCE substantially assists the JPKF to carry out its goals. Since 2000, the Mission has supported the voluntary handover programme for small arms and light weapons in the conflict zone by nominating compensation levels and financing small community projects in exchange for weapons. The OSCE performs most extensively in practical forums such as the JCC, the weekly administrative and law-enforcement meetings in Tskhinvali, the joint law-enforcement bodies, and nearly all other internationally sponsored projects and the public diplomacy channels in South Ossetia. These fora are instrumental in the OSCE’s response to the immediate concerns of both Georgians and Ossetians in the region They allow the Organization to bypass sensitive political uncertainties and, in parallel, materially assist direct dialogue between the parties at different layers of authority, which might ultimately lay the ground for political negotiations. More recently, the European Union (EU) entered the fray through economic rehabilitation and development projects and financial-technical support to JCC

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activities. The EU now participates in the economic working group of the JCC and has also supported the creation of JCC permanent secretariats since 2001. The OSCE is an implementing agent for this project. The UNDP, the NRC, and the UNHCR launched interim humanitarian economic rehabilitation and development projects, which have set up instrumental platforms for projects related to bilateral cooperation on different horizontal aspects of regulation. The flexible and constructive approach of the international actors in South Ossetia is in stark contrast to the Abkhazian experience, where such international actors are yet to produce a significant improvement. International involvement there is less action-oriented and less adapted to local context. The endless preeminence of political questions over all other aspects of regulation blocks the conflict resolution process. The Abkhazian impasse indeed largely accounts for the rigidity of internal actors but also for the inadequacy of external efforts to push the process forward by different, perhaps more resolute, measures of involvement. 2 Russia’s Dual Role The Russian Federation has played a dual role in the Ossetian conflict. On the one hand, its biased and interventionist policies further destabilized the region, at least from the Georgian perspective. Russia even drew Georgia to the edge of war when it openly bombed Georgian villages in retaliation for what it claimed was genocide against Ossetians.21 On the other hand, Russia has emerged as the effective guardian of stability in the region. Through both independent and joint activities, it continues to assert itself as the dominant facilitator in the peace process. Russia uses direct as well as indirect measures to maintain its exclusive position in South Ossetia. Most overtly, it has established a military presence, initially using a temporary dispatch that was later integrated into the Joint Peacekeeping Force (JPKF). Since the early days of their involvement in 1990, Russian troops have come under severe criticism for exceeding their designated responsibilities to secure the ceasefire agreement. They often misused their authority to suppress any fighting against Georgian combatants and civilians (Human Rights Watch/ Helsinki 1992: 13). There was great suspicion about Russian troops leaving their armament and heavy weaponry to Ossetians, thus backing them even after their withdrawal. The 1992 agreement on the JPKF attempted to balance military power in the region by giving equal representation to all three vested parties – Georgians, Ossetians, and Russians. In practice, however, Russia took the lead, partially because of the lack of volunteers and the poor equipment of the Georgian and South Ossetian ‘peacekeepers’. This reinforced Russia’s dominant position as the primary, and now the only, external military force in the conflict zone. 21

Chairman of Russia’s Supreme Soviet Ruslan Khazbulatov demonstrated this in a statement in June 1992 (Sammut and Cvetkovski 1996: 13–14). Russia expressed its interest in getting involved and warned that Georgian actions could ‘urge’ Moscow to seriously consider Ossietians’ request to join the Russian Federation.

11  Case Study of the Conflict in South Ossetia

The JPKF served Russia in another respect – it made South Ossetia the testing ground for Russia’s newly institutionalized CIS peacekeeping concept (Leanen 1998: 92). However, there was a significant discrepancy between the CIS peacekeeping idea22 and its practice in South Ossetia. Firstly, here the CIS did not authorize the deployment of its forces, and then a bilateral agreement was reached between Russia and Georgia, which at that time was not even a member of the CIS. Secondly, the JPKF structure was confined to direct protagonists of the war as peacekeepers and no third-party forces from the CIS were allowed. Thirdly, the posture of the JPKF was closer to peacemaking than to peacekeeping, as prescribed in the 1992 agreement. Thus, the JPKF in South Ossetia was shaped in a manner completely at odds with the requirements of the CIS peacekeeping concept. It should be noted that, overall, the JPKF did serve the purpose of maintaining stability in the region. The surprising success of this otherwise controversial device could be explained by Russia’s relative passivity in South Ossetia as well as a certain degree of cooperation between Georgians and Ossetians. Russia, whether militarily or politically, was less incendiary in South Ossetia than it had been in Abkhazia. In the absence of such direct negative influence from Moscow, Georgians and South Ossetians were able to reach mutual control even though their participation in the JPKF was limited. Also, because of its less inflammatory involvement, the Georgians and Ossetians may have felt less hesitant to let Russia act as the custodian of stability under the JPKF. With regard to more covert measures, Russia continues to exploit the ambiguous political terrain of conflict-ridden Georgia. Although an external party to the conflict, it insists on participating in almost every debate on dispute settlement and even created a Russian-Georgian intergovernmental forum specifically to deal with South Ossetia. Moreover, in addition to certain aggressive declarations of some Russian authorities (OSCE 2000c: [I/II]; OSCE 2000b: [II]), the Russian Duma on several occasions has discussed and issued statements on Abkhazia and South Ossetia. The Georgians have often found these actions provocative. From the perspective of international law, it is unclear why Russia has at times assumed the same level of authority as the Georgian federal government. It is difficult to explain Russia’s somewhat inconsistent involvement in South Ossetia, and it is even more challenging to reconcile it with Russia’s decisively negative role in Abkhazia. Some Georgian academics and officials claim that Russia has had differing strategic interests in the two cases.23 According to this view, Russia saw higher stakes in Abkhazia than in South Ossetia and for this reason its often 22 23

The CIS peacekeeping concept was first enshrined in the “Agreement on Group of Military Observers and Collective Peacekeeping Forces in the CIS”, signed by ten member states at the Fourth CIS Summit in Kiev, Ukraine, March 1992. Interviews with Ghia Nodia, the director of the Caucasian Institute for Peace, Democracy and Development; Alexander Rondeli, the president of the Georgian Foundation for Strategic and International Studies; David Darchiashvili, the head of the Research Center, the Parliament of Georgia, July–August 2001.

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contradictory policy had a greater role in the former. The argument is only partially acceptable as it risks making an error of attribution. On the one hand, it is hardly disputable that Russia, as the key external actor, established herself in a unique position to influence the conflict regulation processes both in Abkhazia and South Ossetia. Thus, Russia’s uneven strategic interests may explain the different degrees of international involvement in the two conflicts. On the other hand, a share of responsibility goes to the joint ventures of other external actors as well because they appear unable to counterbalance the negative exogenous interference in the peace process, if or when they occur, be it from Russia’s or any other side. 3 North Ossetia/Alanya’s Moderate Policies Introducing North Ossetia as an independent external party to the Georgia–South Ossetia conflict is another example of Russia’s indirect involvement.24 The move hoped to exploit the ethno-cultural kinship between this Russian autonomous region, situated on the northern slopes of the Caucasus Mountains, and South Ossetia, located on the opposite side. However, unlike their kinsmen in Tskhinvali, leaders in Vladikavkaz (North Ossetia) displayed less nationalist and political ambitions for south-bound expansion. North Ossetian statesmen managed to maintain a delicate balance between ethnic affinity and political affiliation with South Ossetia. While broad economic, social, and cultural cooperation was encouraged as a sign of ethnic solidarity, there were no stated ambitions for outright political union. Furthermore, North Ossetian leaders, Galazov (until 1998) and Dzassokhov (after 1998), officially called upon Ludwig Chibirov in South Ossetia to pursue “normal relations with Georgia” making it clear that “unification of the two Ossetias is unrealizable at the present stage” (Centre for Russian Studies 2001). The rationale for such a moderate approach appears to be financial as well – North Ossetia was neither willing nor able to absorb or sustain its economically depressed neighbour. Whether because of the lack of economic motivation or presence of political vision or both, Vladikavkaz distanced itself somewhat from the radicals in Tskhinvali and thus contributed to a constructive environment for negotiations. With the prospects for reunification with their northern kinfolk being unpromising, the secessionist cause in the South had less legitimacy and the leaders who advocated it possessed less bargaining power. Abkhazia is again at the other end of the spectrum. Lacking any political or ethnic kin, Abkhazian leaders identify with some insurgent fundamentalists in the North Caucasus. Through alliances with other similar breakaway entities in the post-Soviet area, they aim to secure political legitimacy for these unrecognized regimes. Abkhazia is part of bi- and multilateral structures and agreements with Nagorno-Karabakh, South Ossetia, and Transdniestria.25 While South Ossetia’s 24 Northern Ossetia is an autonomous oblast in Russia. It lies on the other (northern) slopes of the Caucasus. 25 In November 2000, Abkhazia, Nagorno-Karabakh, South Ossetia, and Transdniestria formed a Conference of Foreign Ministers (ITAR-TASS 2000). Later, on 23 Au-

11  Case Study of the Conflict in South Ossetia

participation in these liaisons is nominal, for Abkhazia they represent an important tool in coordinating its policies and ultimately achieving independence. 4 Abkhazia as a Diversion The concentration of wider international attention on the Abkhazia case has, in a way, a double effect on South Ossetia’s post-conflict development. On the one hand, it hampers advancement, since South Ossetia’s political status is virtually tied to that of Abkhazia. Tskhinvali seeks the same settlements that So(u)khumi can negotiate with Georgia. For Ossetians, a ‘lesser offer’ is unacceptable and thus Georgian-Ossetian negotiations are locked in a vicious game of wait-andsee. On the other hand, the same disposition in South Ossetia helps to divert the focus of the conflicting parties from highly vulnerable political questions towards ‘less vulnerable’ functional cooperative arrangements. The day-to-day pragmatic interaction at the grassroots and informal/semi-formal level might point to a longer but more effective route towards a mutually acceptable comprehensive settlement in future. IV Power-sharing Arrangements in South Ossetia South Ossetia could be considered as a ‘deviant’ case in the practice of complex power-sharing. There is no comprehensive settlement aimed at resolving the conflict and/or formalizing the existing public and private discourse. However, the lack of a comprehensive agreement has not prevented the development of genuine and even substantial cooperation at the grassroots level. To make the case even more peculiar, there is little legal framework to support the existing arrangement itself. Numerous political efforts, whether bilateral or multilateral, have largely been confined to administrative and organizational issues. The majority of the interactions, especially economic, are rooted in an ‘implicit’ social contract. Only a few interactions, mainly with international exposure, are governed by written agreements. Although impressive in itself, this under-defined and under-regulated practice is only an embryonic version of what could become a transparent system based on a successful complex power-sharing principle. South Ossetia failed to capitalize on its unique combination of favourable internal and external factors when the time for serious peacemaking arrived. Although these factors originally restrained the conflict somewhat, they appeared insufficient to produce a viable long-term settlement. Another set of powerful reasons forestalled a full-scale settlement and reduced the scope of negotiations to immediate concerns, essentially avoiding sensitive political issues. As has often happened in South Ossetia, this setback did not obstruct peacemaking in other areas, which have proved flexible enough to survive without a general accord. This ability to move forward, even if against the odds, later became advantageous to the ultimate emergence of grassroots power-sharing in the region. gust 2001, Abkhazia and Transdniestria signed a bilateral agreement reiterating full support for each other’s politics (Radio Free Europe/Radio Liberty 2001).

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With significant international facilitation, the current mechanism is still effective. On the one hand, it leaves room for future peace talks and, on the other, it defines the procedures for specific arrangements in the areas of administration, economic rehabilitation, and refugee repatriation. These agreements constitute South Ossetia’s only political settlement device and serve as a link to spontaneous interactions that have come to dominate the region. Functional interactions run through a complex structure of multiple parties liaising at different levels on various issues. Hence, the three dimensions of the following analysis: participants, level of involvement, and sectors of cooperation. The participants in these spontaneous interactions range from high-ranking officials to private individuals from both sides. They form multilayered relations at informal, semi-formal, and formal levels. The scope of their interaction, however, is less diverse. Intercommunal contacts are more intensive across economic and administrative sectors, especially at informal and semi-formal levels. Humanitarian and rehabilitation projects are mainly coordinated by international donor organizations, while social and human rights issues have a rather weak representation at any level. The existing grassroots arrangements have gradually emerged from fragmented interactions, mostly prompted by urgent needs of post-war living conditions and the coincident earthquake. An effective ceasefire allowed both Georgians and Ossetians in the region to act according to their economic self-interests and in meeting their daily requirements. The resulting intercommunal trade gave impetus to further cooperation in other related areas such as transportation. Moreover, the tightly interrelated economy prior to the conflict also encouraged extensive cooperation. Because the South Ossetian market has low purchasing power and can quickly reach saturation, private business activities thus must cross regional barriers. Consequently, the ‘transborder’ commerce along the main trade route in South Ossetia running northwards to the Russian Federation has become the major, if not the only, income source for local Georgian and Ossetian communities. The flourishing trade rests upon significant collaboration between interest groups from both sides, even if inner regulations are largely implicit. Despite serious legal shortfalls, these virtually ‘duty-free’ transactions have generated considerable positive value for intercommunal rapprochement. Namely, the informal commerce has prompted a certain degree of interaction in the fields of security, administration, and transportation. International facilitation sought to formalize this spontaneous discourse to some extent by introducing official negotiations and agreements. External mediation has been crucial in the establishment, as well as the functioning, of the region’s first effective administrative body – the Joint Control Commission (JCC).26 Through its working groups and an ad hoc committee, the JCC develops and coordinates joint endeavours on military, economic, and social issues. More importantly, multilateral organizations appear to be in the best position to deal 26 The Joint Control Commission was established in accordance with the Yeltsin-Shevardnadze agreement on 24 June 1992.

11  Case Study of the Conflict in South Ossetia

with the politically more sensitive and yet critical issues such as the repatriation of refugees and the rebuilding of infrastructure. Internationally sponsored programmes have broadened the spectrum of bilateral relations to include public diplomacy and confidence-building projects. The aforementioned development style allows us to provisionally differentiate between two types of horizontal power-sharing arrangements – structural and instrumental. Structural arrangements rest on needs-based considerations and issues of the parties’ mutual interest. Originally, they grew out of indigenous factors of post-conflict development and gained further momentum through international support. Instrumental arrangements, on the other hand, emerged from exogenous efforts of external factors with the purpose of encouraging rapprochement and re-integration between the two sides. By establishing powersharing as a prerequisite for funding, international organizations hoped that the arrangements they created would become instrumental in bringing about more comprehensive changes. South Ossetia is compelling not only because it gave rise to unique grassroots cooperation but also because it managed to maintain and invigorate its experience over the years. The notable efficacy of this mechanism and the key to its survival lie in the three-way separation of issues, actors, and hierarchy. Political and specific practical issues are successfully channelled into independent parallel tracks involving different actors at different levels. High-ranking negotiations remain focused on an overall solution while local efforts can concentrate on immediate concerns. Hence, political settlement is no longer a precondition for cooperation on practical short-term issues, even if with longer-term implications. Neither is there a harmful overlap of domains of interest and competencies among the many actors involved. Participants, whether domestic or foreign, have demarcated their spheres of involvement fairly clearly. South Ossetia benefits from a structure that defines in a non-competitive manner who is responsible for what and when. Thereby, in South Ossetia it is possible to negotiate different aspects of regulation without a single comprehensive package. This experience is in sharp contrast with Abkhazia, where political uncertainty blocks all other issues from being negotiated, let alone resolved. The following section examines the practical cases of power-sharing in South Ossetia. It analyzes the reasons for failed and failing political settlement and whether the existing practices have matured enough to be transformed into formalized agreements. Furthermore, it attempts to identify other potential areas of cooperation that still remain open to complex power-sharing. A

Political Settlement Process

1 Conflict Settlement Mechanism Russia and Georgia made the first formal attempts to reach a durable peace in South Ossetia. The rounds of unofficial and official negotiations in 1991–1992 brought several fragile ceasefires before reaching the 14 July 1992 agreement. The effective ceasefire and the deployment of mixed peacekeeping forces are the only

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tangible results of this relationship. Procedural delays and political tensions between Russia and Georgia have obstructed the implementation of many bilateral agreements27 throughout the years. Cooperation between the two countries proved more effective under OSCE mediation. The significant achievement of Russian and OSCE facilitation lies in the endorsement of internationally sponsored bodies that function on the basis of the complex power-sharing principle. In terms of instrumental devices, these mainly include the Joint Control Commission (JCC) and its subordinate institutions, which constitute the core of the conflict settlement machinery. The JCC comprises three working groups each addressing issues related to: 1) the military and security; 2) the economy; and 3) refugees and IDPs. The latter has a further ad hoc committee, which is enhanced by the participation of the UNHCR. The OSCE provides political guidance and technical support to the JCC and its secretariats. The current version of the JCC is a product of long negotiations as well as a testament to the flexibility of the South Ossetian peace process, most notably its chief facilitator, the OSCE. Initially, the OSCE strove to reconcile Georgia’s territorial integrity and South Ossetia’s self-governance. In August 1994, it introduced a draft proposal on the constitutional status of South Ossetia within Georgia. Even though the document suggested various options based on the power-sharing principle, the parties found it difficult to reconcile their political interests. As talks stalled, the JCC was transformed into a platform for reconciliation and confidence-building both at the communal and elite levels. The Memorandum on Measures to Provide Security and Strengthening Mutual Trust Between the Sides in the Georgia-Ossetian Conflict (1996) marked the first tangible achievement of the JCC efforts to stimulate bilateral negotiations.28 The agreement was reached at the JCC forum and signed by the JCC members: Georgia, South Ossetia, Russia. and the OSCE. The Memorandum itself said very little about political settlement; rather, it denounced the use of force, reiterated the need to ensure the safe return of refugees and to support further peace negotiations by encouraging civic dialogue. However, the Memorandum set the tone for the following high-profile meetings as well as the internal working sessions in terms of marking the start of a détente in Georgian-Ossetian relations: it actually separated long-term political concerns from short-term needs. This shift towards more practical cooperation became especially apparent during the Chibirov–Shevardnadze talks in 27

28

Pursuant to the 14 September 1993 “Agreement between the Government of Russian Federation and the Government of Georgia on Economic Rehabilitation of the Regions in the Zone of Georgia-South Ossetia Conflict,” Moscow pledged to fund one third of emergency assistance, totalling an estimated rub 34.2 billion, whereas Tbilisi promised to pick up the rest of the bill. However, these financial commitments have not been fully adhered to, either within the initial terms of 1993-1997 or subsequently. The full text of the Memorandum is available at http://www.ecmi.de/cps/documents_gum_memo.html.

11  Case Study of the Conflict in South Ossetia

1996–1998. Although these talks did not produce any tangible political outcome, they encouraged a whole series of sector-specific arrangements and pledges of support for economic cooperation and facilitation of international donor projects and rehabilitation. The OSCE, through the JCC, reacted to the changes in the political climate in South Ossetia by institutionalizing and, thereby, facilitating them. It strongly supported the creation of and the activities of Georgian and South Ossetian Plenipotentiary Delegations in 1997, which consolidated all preceding, concurrent, and future efforts for conflict regulation under their coordination. The plenipotentiaries, with their expert groups, are vested with special authority to negotiate full-scale resolution and to work in close cooperation with Russia, North Ossetia, and the OSCE. Recognizing it as a pillar of peacemaking, other international organizations have joined the OSCE in their support of the JCC-faciliated platforms. Markedly, the plenipotentiary activities enjoy considerable financial assistance from the European Union. The plenipotentiary forum generated a benign platform for constructive thinking and political rapprochement that has been adequately reflected over the course of the peace process since 1997. It was at the Expert Groups meeting in Baden/Vienna in 2000 that the most significant agreement (after the 1996 Memorandum) was reached. According to the OSCE assessment, the “Declaration on the Basis of State-Legal Relations between the Sides of Georgia-South Ossetia,” is a serious attempt “to bridge the gap – to the maximum extent possible – between the positions of the sides” (OSCE 2000b). It was the first time that the Georgian and South Ossetian sides directly discussed future constitutional relationship issues. Three items were deemed appropriate for further consideration and inclusion into a single package: 1) state-legal arrangements within internationally recognized borders; 2) the attributes of South Ossetia’s future status; and 3) the mechanisms of international guarantees. The document did not stipulate any specific political and territorial arrangement in itself, but it made concrete steps towards institutionalizing grassroots and semiformal power-sharing elements in South Ossetia. Among the horizontal aspects agreed upon were economic rehabilitation and reconstruction projects, juridical support for law enforcement, and business cooperation through joint ventures, as well as joint fundraising and control over allocation and use of international funds for South Ossetian rehabilitation. Interestingly, much of the progress in this forum is due to good interpersonal relations, which have evolved through regular meetings and, in turn, have created a favourable environment.29 Active engagement of all levels of public decision-making is another reason for the success of the conflict settlement mechanism. Each Thursday, local law enforcement and administrative authorities hold meetings at the JPKF Russian Command Centre in Tskhinvali under the chairmanship of the Russian Commander of the JPKF, and with the participation of the OSCE Tskhinvali and Tbili29 Interviews with Irakli Machavariani, head of the Georgian Plenipotentiary Delegation and Archil Gambashidze, member of the Georgian Plenipotentiary Delegation, July 2001.

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si office representatives. Whereas high level negotiations prepare the ground for a comprehensive settlement to the conflict, the local administrative weekly meetings settle day-to-day practical questions of a lower profile. The regular ‘Thursday meetings’, as they are commonly known, in reality perform joint trilateral administrative functions (Georgia, South Ossetia, and the JPKF, with the active participation of the OSCE), and serve as an important backbone to the liaison between the parties.30 2 The Failed Overall Political Settlement In South Ossetia, the conflict settlement process has been more stable and promising than that in Abkhazia, but it was not substantial and viable enough to produce a genuine political settlement. Ossetians found it difficult to give up their newly found de facto independence from Georgia and engage in serious political talks where Georgia’s territorial integrity was uncontested. Georgians, for their part, never accepted South Ossetia’s self-proclaimed independence and thus did not want to negotiate any agreement outside Georgia’s territorial integrity. With this fundamental issue unresolved, it became impossible to discuss any compromise solutions within the framework of a certain federal state. For a decade now, both sides seem to have been trapped by external and internal forces that prevent them from capitalizing on the positive achievements of both high-profile negotiations and the grassroots cooperation. Firstly, there is an ‘Abkhazian factor’ that greatly affects the South Ossetian political settlement process. In particular, the South Ossetian authorities seem unwilling to secure any full-scale solution before the Abkhazia issue is resolved. They are playing a ‘waiting game’ and prefer to follow the Abkhazia path. South Ossetians believe that the political stakes are higher in the Georgian-Abkhazian conflict and, accordingly, Abkhazians can bargain for a more favourable settlement. Tskhinvali authorities, thus, aim to reach the best possible result, asserting that “whatever is the political solution to the Abkhazia conflict, South Ossetia will accept nothing less.”31 Secondly, the ‘Russian factor’ is often regarded as a major determinant for both the Abkhazian and the South Ossetian peace processes. Notably, the results of a social inquiry conducted in South Ossetia in 1999 demonstrated that the overwhelming majority of Ossetian respondents (82.4%) believe any change of the state of the conflict and its solution ultimately depends on Russia’s policy (Kontakt 1999: 12). The immensity of Russia’s influence on the Transcaucasus in general, and in South Ossetia in particular, is no longer contested in Tbilisi either. 30 JPKF and OSCE participants of the Thursday meetings both underscored the pragmatic and instrumental importance of such a regular interaction of the local administrative bodies for maintaining stability within the region. Interviews with General Churaev, Commander-in-Chief of JPKF, and interviews with the members of the OSCE field office in Tskhinvali, July 2001. 31 Interview with Konstantin Dzugaev, Speaker of the ‘Parliament’ of South Ossetia, July 2001.

11  Case Study of the Conflict in South Ossetia

However, the nature of Moscow’s immediate political and strategic interests is a subject of great speculation. Its often contradictory official policy and performance raise suspicions that the current status quo might serve Russia’s aim to maintain an instrumental platform (through peacekeeping and facilitation) for its influence and control over the whole region, and in Georgia particularly. Alternatively, one could explain Moscow’s ambiguous politics with a wish to eventually absorb South Ossetia within Russia, as a pretext for this already exists.32 In this case, Moscow is often accused of deliberately impeding a political settlement, or, in more moderate assessments, making insufficient efforts to use all the tools at hand to put an end to the dispute.33 It is difficult to imagine a constructive peace process in South Ossetia without either deposing Russia as the regional ‘benefactor’ or Russia itself adopting a more productive approach. Thirdly, there are interest groups on both sides who prefer to maintain the current quasi-peace, as they benefit greatly from widespread ‘duty-free’ commerce and smuggling. Unsurprisingly, these groups are not interested in a formalized and regulated market that would deprive them of their illegal income sources. Unfortunately, the Georgian government cannot offer a powerful alternative in terms of economic incentives that would make a political trade-off more appealing. Georgia is not able to cover even those modest financial allotments for the Tskhinvali region rehabilitation projects that are earmarked for this purpose in the annual state budget. Georgian plenipotentiaries commonly point to the lack of strong economic leverages as one of the major drawbacks for an effective move towards a final settlement. Peace in South Ossetia will only be possible if it will be economically more profitable to all parties involved than the current situation. B

Structural Power-sharing Arrangements

1 Security and Law Enforcement The JPKF, established by the July 1992 ceasefire agreement, was the first – and a fairly effective – instrument for cooperation in the area of security and law-enforcement. The simultaneous creation of an ad hoc Working Group on Military and Security Issues (with Georgian, Ossetian, JPKF, and OSCE participation) under the JCC introduced another multilateral device to prevent, investigate and combat crime in the region. Due to increasing progress in law-enforcement collaboration, certain functions of the JPKF were gradually delegated to local administrative bodies.34 At the beginning of 2000, the long collaboration and facilitation efforts of the OSCE yielded a permanent bilateral joint decision-mak32 33 34

South Ossetians are ethnically kindred with North Ossetia, which is within the Russian Federation, and Tskhinvali authorities often call for unification with it. Apart from secondary sources, the argument is based on the interviews with Konstantin Dzugaev, Gia Gvenetadze, Irakli Machavariani, and Alexander Rondeli. In “Protocol on the Interaction of Law-Enforcement Bodies in the Georgian-South Ossetian Conflict Zone,” JCC Working Group on Security and Military Issues meeting, Djava, South Ossetia, 26 September 1997.

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ing body – the Joint Law-enforcement Co-ordination Center – with JPKF participation and under JCC supervision.35 Together with its subordinated groups,36 the Joint Law-enforcement Co-ordination Center and local ‘Thursday meetings’ form a powerful platform, not only for crime prevention, but also for overall demilitarization of the conflict zone. In addition, the Co-ordination Center assists with search operations for missing persons, as well as with investigations of war crime allegations. The operational capability of the joint ventures has proved to be satisfactory. At least, according to OSCE and the JPKF assessments, there are no more ethnically motivated criminal activities in the conflict area37 and stability in general is maintained. The system is not without shortcomings though. While the existing mechanism is effective in policing crime, it may not be adequate for administering justice. Control and investigation are carried out jointly, but for political reasons the competencies for arbitration are distributed in accordance with the ethnic settlement pattern of the region. The Tkhinvali regime does not have full control of the territory, which is defined as South Ossetia or the Georgian-Ossetian conflict zone. Some administrative units do regularly take part in the countrywide elections. There are some purely Ossetian and some purely Georgian populated settlements, but over 40% of the area is mixed. The ‘territorial principle’ of policing crime is based on informal agreement between local Georgian and Ossetian law enforcement agents to demarcate their spheres of influence according to ethnic lines. Georgian police control the predominantly Georgian villages, while Ossetians supervise the mainly Ossetian villages. Uncertainty emerges in mixed villages where such lines are blurred.38 The cases that fall within heterogeneous settlements are delegated to one or the other side according to the place of origin of the matter regardless of the ethnic affinity of an offender. The JPKF collects and updates data on the ethnic proportions in these so-called ‘grey zones’. The sides become responsible for the arbitration of the cases under their exclusive competence. 2 Trade In parallel with security concerns, economic devastation caused by the war and a series of earthquakes necessitated the initial emergency-based transactions, which later expanded to structural cooperation. The original informal channels 35 36

37 38

The Joint Law-Enforcement Co-ordination Center became operational on 29 February 2000, pursuant to the Resolution of the 10th Meeting of the JCC of 23 July 1999. The Co-ordination Center comprises the Council of Plenipotentiary Representatives of Georgian and Ossetian executives, as well as three subordinated groups: an investigation and operations group, a group for organizing interaction between law-enforcement officers, and a data processing centre. Interviews with General Churaev, JPKF Commander-in-Chief; Jan Kukuk, head of the OSCE Tskhinvali Office, July 2001. For the present ethnic settlement pattern in the South Ossetian conflict zone, see the map of Tskhinvali region at http://www.ewers-iccn.ge/map.html.

11  Case Study of the Conflict in South Ossetia

for intercommunal economic interactions were revitalized soon after the cessation of hostilities. The communal trade and trans-border commerce along the important trade route running north through South Ossetia soon turned into the only income-generating business for the larger part of South Ossetia’s population and its neighbouring regions of Georgia proper. The absence of formal customs and tolls along that perimeter created favourable conditions for virtually ‘dutyfree’ transactions. The unofficial tariff on the illegal ‘Roki pathway’39 amounts to only 3%40 of the gross value of goods and is at least five times less than the tariff applied at one of the Georgian-controlled Larsi customs post (another mountain tunnel across the Georgian-Russian border). Therefore, many traders found the South Ossetia trade route to be the cheapest and most profitable way to transport goods to and from the Russian Federation, particularly unlicensed cigarettes and petrol. Unsurprisingly, the passage circumventing official customs turned into a thoroughfare for booming drug smuggling, contraband trade, and trafficking in both directions. The informal trade marked the initial alleviation of antagonism and shaped implicit arrangements on the distribution of benefits and resources. The enormous so-called Falloy Market located by the main Gori-Tskhinvali road adjacent to the ‘border check point’ on the Ossetian side is, in a way, the stage for a grassroots power sharing practice. The Ergneti market, where prices are about half of that in Georgia, is at first sight an abnormal self-regulated shadow economic machine. In fact, the regulation of transactions and profit distribution is in the hands of certain communal groups beyond the official control of either Georgian or South Ossetian authorities. This, however, does not necessarily exclude the possibility of unofficial participation of some of the official bodies41 who prefer to keep the inner workings of intercommunal trade relations as obscure as it seems from the outside.42 Notwithstanding its curious positive impact on reconciliation and peace development, the establishment of freewheeling illegal transborder commerce raises concerns for Tbilisi officials. Firstly, the absence of formal customs and tolls regulations over South Ossetia trade route has created favourable conditions for smuggling and criminal transactions. Secondly, the profits completely evade the Georgian budget and generate little benefit to the South Ossetian budget either. The loss of revenue is especially severe, as South Ossetia remains the only land route connected to the lucrative Russian market. The post-Shevardnadze admin39

The South Ossetian authorities claim the pathway and tariffs are legal because South Ossetia’s ‘customs code’ and respective laws on tariffs regulate it. The ‘pathway’ is a tunnel under the Caucasus mountain range. 40 Interview with a member of the OSCE Mission to Georgia, Tbilisi, June 2001. 41 The assessment is based on confidential interviews. 42 Two Georgian newspaper correspondents who tried to shed light on these details were captured while taking photos at Falloy Market in June 2000. They were released after two days of detention by a Georgian and South Ossetian joint police operation (interview with one of the detained from the Georgian newspaper Kviris Palitra).

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istration in Georgia pledges and has already taken steps to curb the shadow economy that flourishes along this route. However, the details of regulation remain to be considered given the political vulnerability of the region and the interests of ordinary local populations involved, whose only earnings depend on this daily commerce. International organizations have been involved in efforts to stop this massive tax evasion and smuggling scheme for some years. Several proposals, including the European Commission’s initiative on joint customs regulations and its later proposal of a ‘magistral tax disk system’ under the JCC, are still to be elaborated, discussed, and agreed by the sides. The project intends to introduce special prepaid licence stamps for the vehicles that transit and import specific goods. This is an alternative to the EC’s initial idea of having joint customs posts on the Georgian-Russian border, which the parties found difficult to accept. Although more modest than the original proposal, the system would be, in fact, a substitution of the grassroots commercial arrangement with an official power-sharing settlement – a joint tax regulation policy – more beneficial to both the Tbilisi and Tskhinvali budgets. Because of its political connotations and implications, the joint customs issue is the subject of cautious ‘cost-benefit calculations’ in Tskhinvali. Although concrete projects are not being discussed officially, South Ossetian senior authorities do not exclude the possibility of agreeing to a common customs policy,43 but they intend to bargain with Tbilisi for an equal sharing of customs revenues.44 However, it is questionable whether such a deal would serve the latter’s interests. 3 Transportation The spontaneous emergence of informal trade effectively opened the ‘borders’ between Georgia and the insurgent region. The three checkpoints (Georgian, Russian, and South Ossetian) on the Gori-Tskhinvali highway regulate the movement of public transportation and private vehicles both with Georgian or South Ossetian licence plates. The number of checkpoints along the entire route up to the Georgian-Russian border creates a bureaucratic nightmare and fosters rampant corruption among Georgian, Russian, and Ossetian law enforcers who may desire to divert transport-generated revenues. According to Georgian sources, there is a new initiative to expand this transportation corridor and devise more flexible rules for road regulation based on a special arrangement between the Ministry of Transportation of Georgia and the

43

South Ossetian ‘President’ Ludwig Chibirov articulated such a possibility during a visit by State Minister of Georgia Vazha Lortkipanidze to Tskhinvali in February 2000. More recently, in October 2002, the Plenipotentiary Experts Groups agreed on the basic principle to introduce a joint system to increase revenues from the trade road. 44 As stated by Merab Chigoev, the ‘head of government’ of South Ossetia (OSCE 2000b: [II] 6).

11  Case Study of the Conflict in South Ossetia

relevant South Ossetian body.45 Still, after passing the short distance from the Georgian to the South Ossetian border post, the clocks have to be set back an hour to Moscow time, which the South Ossetian authorities prefer to maintain as a ‘reminder’ of their ‘independence’ from Georgia. Apart from the spontaneously emerging functional grassroots arrangements, there are a number of contacts that have developed between large private companies and individual entrepreneurs, namely in satellite telecommunications, small business, and production sectors. Such links, which in some cases have brought about the establishment of joint Georgian-South Ossetian enterprises in Tskhinvali, are positively viewed at high-level official meetings as complementary efforts to widen the constructive cooperation of the parties. Ideally, these contacts might establish preconditions for the successful development of more official attempts at structural cooperation; they may form a template for more official attempts at cooperation. However, at this stage, private business enterprise has not emerged as a powerful enough incentive for such an augmentation. C

Instrumental Power-sharing Arrangements

1 The UNDP Tskhinvali Rehabilitation Project The UNDP Rehabilitation of the Tskhinvali Region project (GEO/96/019) was the first operative economic programme in South Ossetia. When it was started in early 1997, negotiations were still effectively deadlocked and the UNDP had to ‘break the ice’ of mutual distrust before launching the project itself.46 Hence, the organization embarked on an integrated strategy of responding to both economic needs and the necessity of launching a confidence-building process. These two directions served the corresponding goals of reconstruction and rapprochement. In terms of organizational and operational arrangements, the joint device rested exclusively on the equal power-sharing principle. Georgia and South Ossetia acted as direct decision-making and implementation agents while the UNDP remained a neutral facilitator. Under the UNDP requirements, project priorities and particulars were identified, agreed upon and implemented through consensual decisions of the parties to the conflict (Hansen 2000: 4). In this manner, proportionality and consensus became the ground rules for any joint exercise within the project framework. The UNDP facilitation policies had important political implications. Namely, compliant with the international and, in particular, the UN position, the UNDP supports Georgia’s territorial integrity and jurisdiction over the conflict zone. Hence, the UNDP appointed Georgia’s federal administration (and not the Tskhinvali de facto regime) as the direct recipient of the project funds. South Ossetian 45

Interview with Irine Skhirtladze, Georgian Plenipotentiary Delegation on Georgia– South Ossetia Conflict Regulation, July 2001. 46 Interview with Marco Borsotti, UNDP Resident Representative in Georgia, July 2001.

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authorities, despite initial resentment, faced the necessity to accept the Tbilisiintermediated delivery of badly needed resources. The joint apparatus consisted of three different structures that coordinated and complemented each other at all levels of functional interactions, from high-profile official executives to individual local agents. The decision process ‘trickled down’ from the Steering Committee, where Georgian Foreign Ministry delegation and the ‘Special Advisor to the President of South Ossetia’ defined the priority sectors for the optimal use of the UNDP funds. The OSCE was entitled to hold the status of observer/facilitator (Hansen 2000: 9). At the next level, senior experts and ministry authorities of the two sides elaborated detailed proposals and implementation under the Sector Working Groups, instituted both in Georgia proper and in South Ossetia. Finally, two Project Support Units, comprised of technical experts from both sides, monitored organizational matters and ensured the Project’s implementation transparency. On the whole, the joint decision-making demonstrated a substantial degree of pragmatism regarding the rational use of the UNDP resources. The constructive dynamism of the joint mechanism, for its part, was largely defined by the UNDP-vested ‘compulsory’ formula of ‘either consent or nothing’. Initially, during somewhat ‘obligatory’ joint efforts within the project framework, the parties realized the value and, perhaps, the inevitability of sharing powers and resources rather than contesting their monopolization – which would carry equal risks and costs of failure for each side. Later, mutual benefits turned this almost forced joint exercise into ‘voluntary’ bilateral cooperation. As a result, the UNDP project implementation process (1996–1999) became the driving force behind incremental softening of initially hardline positions. Furthermore, it succeeded in removing ambivalent political aspirations from pragmatic interactions, as much as the circumstances permitted, and project-related cooperative ventures served as constructive inputs into the political negotiations. 2 The EC Rehabilitation Project The EC rehabilitation project consists of two major financial donations made under the EC 1997 and 1998 budgets. A third transfer was earmarked in the European Union 1999 budget. The stated goals of the EC programme are similar to those of the UNDP project. Also, similarly to the UNDP funding principles, the EC delegation and the Georgian government signed an agreement endorsing Tbilisi as an immediate beneficiary of all project-related transactions.47 Despite essential similarities, the EC and UNDP projects opted for different approaches regarding how and when power-sharing among the parties to the conflict was applied. Strategic issues, such as priority areas for funding, were designated by the

47

Emmanuel Anquetil (project manager at the EC Delegation to Georgia) mentioned that the Georgian side ardently advocated the introduction of an ‘EC-Tbilisi-Tskhinvali’ intermediary formula as a prerequisite for starting the project-related negotiations with the South Ossetian authorities (interview, July 2001).

11  Case Study of the Conflict in South Ossetia

EC itself. Project implementation was delegated to local entities, strictly under the EC-developed procedures and guidelines. This ‘design centrally, implement locally’ approach was already present at the beginning of the project when its Joint Co-ordination Body was created. Its founding moderators, the EC and Hilfswerk Austria48 were in charge of defining priority directions as well as technical procedures, whereas Georgian and South Ossetian delegates enjoyed only limited powers and, thus, assumed limited responsibilities in the process. This mechanism left little space for consensus-building among the conflicting parties, as they were on the receiving end of pre-determined rules of engagement. At the same time, and again similar to the UNDP project, the EC’s strict requirements drove both sides into more congruent ways of interaction in order to secure much-needed financial or technical assistance. The parties were almost forced to cooperate by following a strict set of instructions before they could obtain any funding. However, unlike the UNDP project, the mechanism proved less effective in overcoming negotiation deadlocks and procedural delays. Because local parties were not privy to the project inception process, they found it easier to excuse themselves from responsibility over its ultimate progress. In the case of South Ossetia, this general imbalance was further compounded by the inflexibility of the Hilfswerk organization. While the EC initial projects prompted merely short-lived ‘unavoidable’ bilateral interaction during the project implementation, the second installment aimed to foster more direct and sustainable cooperation that would lead to economic reintegration and interdependence. The “Platform for an Agreement” was a single comprehensive package internally organized as a set of new projects addressing vital economic issues. 49 Georgian ministerial officials, together with their de facto counterparts in Tskhinvali and local enterprises, were to implement the project under the supervision of the OSCE and the EC. All contractors were bound by a common imperative to distribute powers, commitments, and responsibilities proportionally. This allowed the EC to synchronize actions across the board and to use certain financial projects as leverage to achieve success where progress was not forthcoming. The more ambitious third instalment envisages two major projects: common customs regulations across the South Ossetia trade route and the reconstruction of transportation infrastructure. The EC has linked the badly needed road reconstruction to the sensitive joint customs policy issue. Tskhinvali authorities thus find themselves tempted to make political concessions over the latter in order to earn the desired funding for the road works. The EC endeavours have not yielded genuine power-sharing practices thus far, but they may yet pave the way for sustainable power-sharing arrangements. Most of the EC rehabilitation projects target the construction of interrelated and interdependent infrastructure between South Ossetia and inland Georgia, which may unite the local and central systems. In return, structural integration might 48 Hilfswerk Austria is a nongovernmental organization that won the EC tender for this project. 49 The second rehabilitation program sponsored by the EC.

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guarantee that the present arrangements are not only maintained but also expanded beyond the current project scope, focused on transportation, energy, and communication sectors. The projects on reconstructing the Tskhinvali underground gas pipeline, restoring electricity supply and rebuilding the Gori-Tskhinvali railway have developed precisely in this manner. The EC strategy here aims at the transformation of the Georgian-South Ossetian state-economic relations into well-integrated and coherent networks. In addition, the EC devised projectspecific financial responsibilities that strongly promote the Georgian Lari – the official currency, which is currently squeezed out by the Russian Ruble in the Tskhinvali region, as it is in Abkhazia – to re-establish it in the breakaway region. Such a policy plays an instrumental role in shaping preconditions for the possible restoration of a common monetary space. 3 Georgian-Russian Intergovernmental Forum The Georgian-Russian Economic Rehabilitation Programme (2000) was designed to serve as an effective mechanism for addressing the vital economic and infrastructure rehabilitation issues in order to create the requisite conditions for refugee repatriation. Much like the preceding project of a Russian-Georgian intergovernmental forum (1993), this programme has failed to honour its financial obligations due to a lack of resources on both sides. However, it has successfully expanded the previous scope of agreements beyond mere pledges for bilateral financial assistance and towards more complex cooperation in designing joint structures and implementing common economic policies. The JCC was authorized to set up joint decision-making structures within this programme framework – the Georgian-Russian intergovernmental body, the Georgian-Russian Programme Executive Committee and subordinated working groups – to provide the necessary institutional mechanisms for the required legislative work and project implementation (JCC 2001a: Appendix 2).50 The programme bodies were commissioned to report to the JCC and, under their mandate, draft normative acts and develop procedures for the programme-related arrangements, such as infrastructure reconstruction and transport. Consensual decision-making over the use, distribution, and allocation of the programme funds and their coherent management was delegated to the Joint Georgian-Ossetian body, which would coordinate with the Georgian-Russian intergovernmental body and the JCC. In 2001, the Georgian-Ossetian forum was the only functioning part of this complex structure. It was actively working with the JCC working groups to define the programme priorities for 2002 and decide on subsequent project financing (JCC 2001b).51 The implementation of the other 50

51

“Decision of the Joint Control Commission on the Georgia-South Ossetia Conflict Regulation,” in Protocol of the 11th Plenary Meeting of the Joint Control Commission, Vladikavkaz (North Ossetia-Alanya within Russian Federation), Appendix No.2, (21 April, 2001). Protocol on the Elaboration of a Russian-Georgian Intergovernmental Programme on Cooperation for Economic Rehabilitation of the Georgia-South Ossetia Conflict

11  Case Study of the Conflict in South Ossetia

formal arrangements of the forum have failed, due largely to turbulent GeorgianRussian relations and the avoidance of financial commitments by both sides. 4 Confidence-building Measures An informal forum for dialogue has been set up as a supplementary track to formal political negotiations. One of the most successful initiatives in this direction was promoted and implemented by the US Conflict Management Group (CMG) in cooperation with the Norwegian Refugee Council (NRC) in Georgia. The Georgian–South Ossetian Dialogue project (1995–1999) involved different levels of authority together with civic actors. It envisaged the organization of joint brainstorming sessions in order to delineate alternative proposals and recommendations for a comprehensive solution. There were several bilateral meetings convened within the CMG-NRC project framework, which provided a forum for constructive thinking and dialogue. Although the parties found it difficult to translate written agreements on several non-political issues into practice, these activities were thought to have contributed considerably to reconciliation and confidence-building. Along with political and practice-oriented negotiations, multilateral endeavours fostered effective public diplomacy channels via mass media, NGO, and social-academic networking. A number of significant attainments in these areas have linked the two sides across ethnic community lines. The first ‘ice-breaking’ meetings between youth organizations were initiated by VERTIC, a British NGO. Thereafter, a series of journalists’ meetings and several other civic dialogue projects were sponsored by the OSCE. These efforts spawned some tangible results in terms of generating effective joint enterprises, such as the Public-Information Center for the Georgia-South Ossetia Conflict Regulation, which is comprised of nongovernmental news agencies of the two sides. The range of joint activities also included ‘radio bridges’, collective production of documentary films,52 and the creation of the NGO Network Forum. Furthermore, the United Nations Volunteers (UNV), in cooperation with the UNICEF and the UNHCR, promote interactive projects at the school level. They produce a children’s interactive magazine and distribute it in the Georgian- and Ossetian-populated regions of the conflict zone. The UNV also brings children of different ethnic communities together at summer schools. In the absence of joint education policies, these efforts are crucial in terms of building trust and confidence in the younger generations.

52

Zone, Meeting of Georgian and South Ossetian Representatives of the JCC Working Group on Economic Issues, Mtskheta, Georgia (19 July 2001). Georgian television programme Studio Re, along with its South Ossetian partners, filmed a documentary on the UNDP project implementation in South Ossetia in 1999. The organizers say the atmosphere was very friendly and collaborative (interview with Mikheil Mirziashvili, Studio Re, June 2001).

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V

Conclusion

The horizontal power-sharing practices enacted in South Ossetia are undoubtedly a positive development in many ways. Primarily, they signal the cessation of hostilities and the painful loss of human life and destruction of property. Perhaps, they may also encourage the re-building of peaceful co-existence among Georgians, Ossetians, and the other ethnicities in the area. The synergy of practical achievements creates favourable conditions for the advancement of a fullscale settlement. To exploit this momentum, two questions must be recognized and addressed: 1) Why is it imperative to formalise this grassroots cooperation? 2) How can the factors involved, whether internal or external, encourage and regulate the necessary transformation? The answer to the first question should help identify the crucial areas where informal power-sharing still fails to deliver a transparent and viable long-term solution, while the answers to the second question should delineate the path towards institutionalized settlement where such a solution could be possible. Together these questions should also inform a wider debate on the implications of horizontal power-sharing, not only for the prospects of long-term peace in the region, but also for the concept of complex power-sharing itself. There are several compelling reasons for questioning the current power-sharing practice in South Ossetia. It suffers from systemic failures, which undermine its legitimacy and viability as well as limit its potential to resolve future problems. Namely, in the short run, South Ossetian power-sharing does not deliver a transparent and democratic system based on lawful institutions and rules. At its best, the current mechanism allows some functioning of ‘normal’ life and fosters confidence-building. At its worst, it endorses a non-transparent and repressive regime. In the long run, the existing grassroots cooperation offers no solution of the conflict in the region because it avoids the underlying issue that has prompted the conflict in the first place. No matter how encouraging the goodwill among the ruling elites or how strong the intercommunal relationships, the political status of South Ossetia is still largely ignored. In response to our first question, the following analysis argues that these structural distortions are fundamental and that only an institutionalized power-sharing settlement can resolve them. The formal framework surrounding and governing the present power-sharing practices is either ambiguous or deficient. There are several formal agreements to regulate military and economic issues but. because of their narrow remit, they cannot bring necessary legitimacy to the overall arrangement. The current system remains unconstitutional and without legal basis because it has not been endorsed by any democratic and transparent plebiscite.53 The majority of private or public persons join in this arrangement passively, merely acquiescing to the objective reality. It is unclear if their participation in this ambiguous system could 53

Georgian authorities and the OSCE observers have declared the 2001 presidential elections in South Ossetia illegal, as with all previous ‘elections’ conducted by the Tskhinvali de facto regime.

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be considered a public contract. As long as this remains the case, the existing horizontal power-sharing in South Ossetia should at least be regarded with some caution. The present horizontal power-sharing in South Ossetia not only avoids the underlying political conflict but it also fails to create a methodical approach for resolving both political and non-political issues in the region. Several important structural aspects remain ignored or inadequately addressed by the current arrangement. These are either highly politicized (such as foreign and trans-border relations, minority rights), ethno-culturally sensitive (such as language and education policies), or inadequately financed (such as healthcare, social services). These further undermine South Ossetia’s ability to present an integrated complex power-sharing model even at the horizontal level. Rather, they unveil the existing practice as a set of fragmented interactions that may create an illusion of a systemic approach largely due to the multiplicity of actors involved and to the structures apparently created. Unfortunately, the current variety of power-sharing in South Ossetia has builtin limitations that may prevent it from evolving into a peaceful long-term solution. These limitations are either inherent in the mechanism itself or stem from external influences. Internally, the hope for institutionalized power-sharing in South Ossetia is severely compromised by the authoritative interest groups that benefit from the status quo and thus are determined to maintain it. This is particularly true of the region’s flourishing shadow economy, which relies precisely on the lack of transparency and legitimacy. The absence of democratic processes also self-perpetuates the existing regime. It prevents the larger community from exercising its rightful participation in public discourse. Without access to power, this larger community not only remains without representation but also incapable of initiating much-needed transformation. Lastly, in the minds of many South Ossetians, who continue to vote for secession, an institutionalized power-sharing is barely considered to be a solution to their independence claim. These Ossetians view horizontal cooperation as a means to reap practical (short-term) benefits, with little bearing on their long-term political aspirations. As a result, those who may endorse complex power-sharing have a modest profile, while those with a higher profile still choose a quasi-legal state today with the hope of secession tomorrow. Despite the various palpable achievements of grassroots cooperation, the gap between horizontal power-sharing and political settlement further undermines the current practice and its potential to lead to institutionalization from within. As for the external influences compromising power-sharing in South Ossetia, the overall conflict settlement seems to be locked in a vicious circle of other post-Soviet ethnic conflicts, most specifically that in Abkhazia. Tskhinvali looks to So(u)khumi for a precedent and does not want to accept anything less than what the latter gets from Tbilisi. When analyzing the South Ossetia case, many consider that, realistically, the key to both conflicts in Georgia has to be sought

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in Abkhazia.54 Regrettably, the political dialogue in Abkhazia is progressing at an alarmingly slow pace, thereby causing further delays in the conflict negotiations in South Ossetia. Given its inability to generate change from within, the existing power-sharing structure can only rely on its flexibility in accepting outside pressure if it hopes to evolve into a formal settlement. As mentioned above, the current system has not established long-term peace but it can certainly be argued to have laid down some preconditions to permit it. Confidence-building and flexibility are the two achievements that could be exploited using a more rigourous strategy for political reconciliation. Indeed, rapprochement at both elite and intercommunal levels may be a platform for the combined use of consociational and integrational approaches as the basis for comprehensive power-sharing arrangements in future. The challenge lies in identifying where and how this outside pressure can be applied effectively, and without deleterious effects. This crucial external involvement could come in two forms – directly, as consistent and explicit policy of international actors, and indirectly, as a consequence of a conflict settlement precedent elsewhere in the troubled post-Soviet area. The latter is currently less likely. The post-Soviet conflicts that South Ossetia is associated with unfortunately remain deadlocked and thus hardly suggest a settlement prospect in the foreseeable future. Furthermore, because of the unique features, past and present, that have shaped the South Ossetian power-sharing experience, it is difficult to imagine a conflict-settlement mechanism that could be easily and readily imported into such peculiar circumstances. Consequently, a customized policy and an integrated response of multinational organizations could be decisive. The need and importance of bold international action is recognized on the ground as well. In the previously described social inquiry conducted by the Tskhinvali Public Information Center in South Ossetia in 1999, international organizations were ranked as the most important factor for the present progress in the Georgian–South Ossetian conflict management and regulation.55 Capitalizing on their political repute and financial/military might, these organizations could: 1) either impose, implement, and guarantee a specific and comprehensive arrangement (top-down solution); or 2) embark on invigorated facilitation and mediation of preparatory arrangements. This would mean starting out and backing up more dynamic and diversified channels of bilateral or multilateral interactions ,which ultimately would combine into a self-propelling complex power-sharing mechanism (bottom-up solution). 54

55

Interviews demonstrated that many on the Georgian side, as well as some Ossetians, believe that as long as the Abkhazia question remains unresolved political breakthrough in South Ossetia is unfeasible (interviews with Alexander Rondeli, Konstantin Dzugaev, and Ghia Nodia, summer 2001.) The role of the international community and international organizations were ranked first (rating 167) followed by the role of law enforcement (139) and the JPKF (107); “increasing cultural and economic contacts” (65) and “success of public diplomacy” (43) were less prominent ( Kontakt 1999: 13).

11  Case Study of the Conflict in South Ossetia

The disposition of various factors in South Ossetia suggests better prospects for bottom up settlement than for the top-down solution. Firstly, none of the international actors involved in the South Ossetia peace process at this stage are willing or have enough powers to forcibly impose and administer an ultimate top-down solution that would address highly sensitive political-territorial issues. Secondly, enforcement of such an arrangement would certainly compromise the interests of one or another party to the conflict and thus undermine all positive accomplishments of the long efforts in confidence-building, rapprochement, and cooperation. As a forcible top-down solution appears both unfeasible and unsuitable for South Ossetia, the bottom-up strategy remains the only workable option. A promising start in this regard already exists. This would require the international organizations to mobilize and invigorate their efforts to push forward more genuine and sustainable cooperation at different levels and in different directions. In this case, international programmes could serve as cooperation and capacity-building instruments rather than as temporary remedies to (re)vitalize project-related power- and resources-sharing practices. Such an approach might foster the development of diversified power-sharing networks at grassroots, semi-formal and formal levels, which may ultimately turn into a self-propelling mechanism, per se requiring some form of institutionalized comprehensive regulation. In this manner the result would be internally generated regulation with strong international facilitation and backup. Fortunately, the activities of international organizations in South Ossetia’s peace process, especially those of the OSCE and the EU as well as specialized UN agencies and other humanitarian organizations, are gradually expanding. Even if the current dynamism is not sufficient to vigourously advance a bottom-up solution, it certainly gives hope for leading in this direction. As for the dependence on Abkhazia, only the aforementioned rigourous international mediation and far-sighted leadership of both Georgian and Abkhazian elites could reverse the direction of causality. Unfortunately, the present disposition shows no prospects for such an outcome. Hypothetically, however, South Ossetia has the potential to become a precedent-setting case due to the maturity of certain practical arrangements favouring further advancement towards a genuine solution. Finally, the analysis of post-conflict development in South Ossetia suggests powerful conceptual implications. Because of its structural failures and limitations for long-term peacemaking, horizontal power-sharing cannot be considered a substitute for institutionalized complex power-sharing practice. However, it can be viewed as a compliment to the overall concept, one that even challenges the traditional sequence of conflict resolution. The case of South Ossetia demonstrates that a formal agreement may not be necessary to initiate dispute settlement and that grassroots power-sharing could move the settlement process forward, even without a political resolution. The horizontal power-sharing in South Ossetia is a functionally valuable achievement that can serve as an intermediary platform from where both Georgian and Ossetian sides can develop a long-term perspective on how to arrange their lives together.

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Interviews (conducted in July–August 2001) 1

Georgian officials and scholars

Cheishvili, Vasil. Head of the Department of Program Coordination, Ministry of Health and Social Services of Georgia. Darchiashvili, David. Head of the Georgian Plenipotentiary Delegation on Georgia-South Ossetia Conflict Regulation. Geradze, Levan. Senior Advisor, Legal Department, Ministry of Special Affairs of Georgia. Gogolashvili, Kakha. Head of the Department of the European Union, Ministry of Foreign Affairs of Georgia. Gvenetadze, Ghia. Head of the Department for Russian Federation, Ministry of Foreign Affairs of Georgia. Ivanidze, Nugzar. Director, International Organization for Fair Elections and Democracy. Kakabadze, Malkhaz. Minister of Special Affairs of Georgia. Khutsishvili, George. Chairman of Board and Director, International Center on Conflict and Negotiation. Kopaleishvili, Mamuka. Secretary of the Central Election Commission of Georgia. Machavariani, Irakli. Special Envoy of the President of Georgia on Georgia-South Ossetia Conflict Regulation, Head of the Georgian Plenipotentiary Delegation. Mirziashvili, Mikheil. Director, Studio “RE,” Tbilisi, Georgia. Nodia, Ghia. Chairman of Board, Caucasian Institute for Peace, Democracy and Development (CIPDD). Pataraia, Tamar. Researcher, CIPDD. Rondeli, Alexander. President of the Georgian Foundation for Strategic and International Studies. Siamashvili, Mikheil. Deputy Head of the Department of the United Nations, Ministry of Foreign Affairs of Georgia. Skhirtladze, Irine. Member of the Georgian Plenipotentiary Delegation on Georgia-South Ossetia Conflict Regulation. Tsintsadze, Irina. Director, “Alternativa”/Public-Information Center on Regulation of Georgia-South Ossetia Conflict (Tbilisi, Tskhinvali, and Gori offices).

2

Russian officials

General Churaev. Commander in Chief, Joint Peacekeeping Force.

3

Ossetian officials and experts

Dzugaev, Konstantin. De facto Speaker, the ‘Parliament’ of South Ossetia. Parastaev, Alan. Director, Caucasus Forum, Network of NGOs for Peace and Sustainable Development.

11  Case Study of the Conflict in South Ossetia Pliev, Alan. De facto Deputy Minister of ‘Foreign Relations of the Republic of South Ossetia’. Pliev, Igor. Member of the Center on Humanitarian Initiatives and Research of South Ossetia.

4

International organization officials

Anquetil, Emmanuel. Project Manager, European Commission Delegation in Georgia. Backlund, Ulla. Resident Representative in Georgia, Norwegian Refugee Council (NRC). Boden, Dieter. Special Representative of the UN Secretary-General for Georgia, Head of UN Observer Mission in Georgia (UNOMIG). Borsotti, Marco. UN Resident Coordinator in Georgia, UNDP Resident Representative in Georgia. Johnson, Cate. Caucasus Regional Director – Office of Democracy and Governance, US Agency for International Development (USAID). Kharashvili, Julia. Project Coordinator, United Nations Volunteers (UNV) in Georgia. Martirosyan, Arthur. US Caucasus Project Coordinator, Conflict Management Group (CMG), Cambridge MA. (Phone-interview, April, 2001). Olson, Lara. Project Coordinator (in 1996-1998) Georgian-South Ossetian Dialogue Project, NRC. (Phone-interview, April 2001). Parekh, Rajen S. Field Adviser in Georgia, UN Office for the Coordination of Humanitarian Affairs (OCHA). Tsoneva, Valentina. Protection Officer in Georgia, UN High Commissioner for Refugees (UNHCR). Van Hoye, Ermina. Special Assistant to the Special Representative of the Secretary-General for Georgia UNOMIG. Confidential interviews with members of the Organization for Security and Co-operation in Europe Mission to Georgia and members of the OSCE Tskhinvali Field Office.

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Section Two Cross-cutting Analysis

Part Three Vertical Power-sharing

Chapter 12 Addressing the Self-determination Dispute Marc Weller

Self-determination disputes have traditionally been resolved through the force of arms. Either the government would decisively defeat an attempted secession (Katanga), or low-intensity conflict might be carried out over decades. The question arises whether recent practice evidences a trend to address and actually resolve the self-determination issue directly in internationalized power-sharing settlements. An initial review of the cases surveyed would suggest that there are four approaches to the self-determination issue in complex power-sharing agreements. These are: • Denying self-determination to the secessionist entity and compensating it with complex power-sharing provisions; • Ratifying secession and compensating non-dominant groups in the new state through complex power-sharing; • Confirming the possibility of self-determination including secession, but deferring the act of self-determination to a future date and possibly making the exercize of this act dependent on the fulfilment of certain conditions. Complex power-sharing will provide for interim administration in such cases and may also protect non-dominant groups in case of an ultimate decision in favour of secession; and • Suspending the issue of self-determination for the moment and instead promising the creation of a mechanism through which this issue may be addressed in future. Complex power-sharing will be used for interim administration in such cases, although there may be an expectation that this will consolidate into a permanent internal settlement over time. In considering each of these types of cases, it will be convenient to consider whether a settlement resolves the issue of who is the self-determination unit (i.e., what is the ‘people’ entitled to self-determination), what, if any, mechanism is established for the exercise of the right to self-determination and whether this exercise is conditional. Moreover, the basic structure of the complex power-sharMarc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 387-406

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ing design will be highlighted. This may help answer the question whether certain types of self-determination settlements tend to attract certain models of complex power-sharing designs. While mainly drawing upon the cases selected for this study, a number of others have also been included. These fit the criteria for this study and were addressed after the project was too advanced to include them formally through case studies. I

Secession Denied

A number of settlements will seek to trade the claim to secession for a complex power-sharing arrangement. Often this will take the form of a re-negotiation of the state constitution. In the cases without significant international involvement in achieving or implementing a settlement – excluded from this study – decentralization will typically be provided (North Mali), or more far reaching autonomy arrangements will be established. Another example is furnished by the change of the status of Corsica that was proposed by the central authorities of France. More recently, a framework agreement was obtained in relation to the Aceh conflict in Indonesia, providing for self-government of the territory based on the democratic will of its population, but clearly within the framework of Indonesian legislation and uncontested sovereignty. Among presently ongoing negotiations, it is likely that a settlement for Sri Lanka may be forthcoming that will grant very extensive separate administration to the areas of Northeastern Sri Lanka, at present controlled by Tamil Tiger forces, in exchange for a pledge of not pursuing secession. At times, a federal structure will be proposed in this type of settlement. However, the recent consolidation of the doctrine of constitutional self-determination, and especially its rather open-ended formulation by the Badinter Commission, have made such a solution less attractive in a number of circumstances. Central authorities tend to fear that a federal solution might provide a stepping-stone towards an entitlement to external self-determination. After all, on the basis of its new federal status, the entity might claim constitutional self-determination. Accordingly, the governments of Moldova and Georgia have recently clarified their position, offering asymmetrical autonomy instead of federalization of the overall state. The proposed settlement for Cyprus that failed to be approved by a majority in the mainly Greek populated part of the island in 2004 exemplifies an attempt to overcome the fear of generating an entitlement to secession in a document that is intended to consolidate or re-establish the territorial integrity of a state. The Foundation Agreement, tying together a number of elements of the draft settle 

These are Aceh, Chechnya, and Sudan. The situation in Sri Lanka has also been monitored, although no settlement was obtained at the time of writing. Cessation of Hostilities Framework Agreement between the Government of the Republic of Indonesia and the Free Aceh Movement, 9 December 2002, Preamble.

12  Addressing the Self-determination Dispute

ment, described Cyprus as one independent state, enjoying one single international legal personality and sovereignty. However, the state would be composed of two equal entities, described as constituent states. While the common national government ‘sovereignly’ exercises the powers specified in a constitution, the constituent states also ‘sovereignly’ exercise their powers. These powers are not vested by the Constitution in the common, national government. They are derived from the “inherent constitutive power, by our free and democratic, separately expressed common will”, to be made manifest in two separate referenda, both of which must be positive in order to bring the agreement into effect. The location of all authority not specifically granted to the common government in the two equal sovereign constituent states would indicate that they are the sources of original sovereignty, despite the language that also describes the central common powers as sovereign. This would, in principle, suggest a union or confederation of sovereign entities, or perhaps a very loose confederation. Under the Badinter principles, a constitutional entitlement to self-determination might be implied. Hence, the Foundation Agreement states that “any unilateral change to the state of affairs established by the Agreement, in particular union of Cyprus in whole or in part with any other country or any form of partition or secession, shall be prohibited.”A similar provision is contained in the draft constitution, which was part of the package of the draft agreement, adding that the independence, territorial integrity, security, and constitutional order of Cyprus shall be safeguarded and respected by all. Russia’s recent action in relation to Chechnya reflects a similar attempt to grant federal-type powers without implying a future entitlement to constitutional selfdetermination. A referendum was held by the Russian authorities on 23 February 2003. Given that Russia is structured as a Federation, and that Chechnya is designated as a republic within the Federation in the 1993 Russian Federal Constitution, the Federal status of that entity could not be in doubt in the settlement that is at present being imposed by the Moscow authorities. Hence, the referendum invited the Chechen population to endorse a new Chechen constitution that would provide for self-government, but expressly within the ‘unquestionable’ sovereignty of the Russian Federation. Out of the instances covered by case studies, four have attempted to go the route of trading claims to independence for enhanced self-government. These are Georgia; Moldova; Macedonia; and, in its internal aspects, Bosnia and Herzegovina. In relation to Georgia, only rudimentary framework agreements of 1994 concerning Abkhazia and South Ossetia, respectively, exist. In the Declaration on Measures for a Political Settlement of the Georgian/Abkhaz conflict signed on 4 April 1994 by the parties in the presence of the representatives of the UN, the   

Article 1(6). Article 1. The external aspect of that latter case, i.e., the question of the independence of Bosnia and Herzegovina, will be considered in the section that follows.

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Russian Federation and the then CSCE, it is agreed that Abkhazia shall have its own constitution and legislation and appropriate State symbols, such as an anthem, emblem, and flag. In that version of the draft, there was specific confirmation of the territorial unity of Georgia to balance this description of Abkhazia as a ‘state’. However, the continued territorial integrity of Georgia was protected by a series of UN Security Council resolutions on the conflict to which the agreement expressly refers. The agreement also provided for a provision on the ‘distribution of powers’, providing for ‘joint action’ in the fields of foreign policy, foreign economic ties, border guard arrangements, energy, transport and communications, and the preservation of human and minority rights. Hence, it appears that a rather nominal incorporation of the territory into the legal order of Georgia was foreseen, with exclusive and original jurisdiction of Abkhazia over its own affairs and joint powers in relation to certain issues of common concern. Another explanation would be that it was not, in fact, possible to clarify the issue of status sufficiently to provide a basis for the development of a substantive power-sharing arrangement. This might explain the lack of progress on this issue for close to a decade. The Memorandum on Measures to Provide Security and Strengthen Mutual Trust between Sides in the Georgian Ossetian Conflict of 17 April 1996, concluded by Georgia, ‘the South Ossetian side’ with the involvement of Russia, the Republic of North Ossetia, and the OSCE, is also quite general in its terms. However, it does at least refer to the concepts of territorial integrity and self-determination directly. In its preamble, it confirms the commitment of the parties to the provisions of the UN Charters, the basic principles and decisions of the OSCE, and generally recognized norms of international law. This would ordinarily be understood to support a restrictive approach, supporting continued territorial unity. However, in the following preambular paragraph, the parties profess to be “guided by the principles of territorial integrity of states, and the right of nations for self-determination”. Hence, once again, the underlying self-determination issue is not actually resolved in the agreement itself, advancing with equal vigour the two competing concepts that would result in opposing solutions on the issue of status. Given that no further agreements obtained to implement the initial framework accord, the structure of a power-sharing settlement cannot be considered as a means of shedding light on the status issue. Nevertheless, as is the case in Abkhazia, the principle of territorial integrity has also been privileged (in this instance by the UN Security Council) over the claim to self-determination and independence. Hence, this case has been provisionally listed under the heading of ‘self-determination denied’. However, it must be acknowledged that, in actual fact, both entities are administering themselves separately. The lack of substantive progress on a political settlement and formal power-sharing has necessitated the alternative development of informal power-sharing, revealed through the case study above. Since then, the Georgian government has advanced a number  

Article 4. See Chapter 11.

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of further initiatives, effectively disowning the 1996 text. Instead, Georgia has advanced several new designs more clearly relying on authonomy since then. Moldova, on the other hand, did achieve a formal settlement. However, this settlement is contained in a piece of domestic legislation, the Law on the Special Legal Status of Gagauzia, adopted on 23 December 1994, generated with the involvement of the OSCE. The law defines Gagauzia as: [A]n autonomous territorial unit with a special status as a form of self-determination of the Gagauzes, which constitutes an integral part of the Republic of Moldova.

The law clarifies that the legal powers enjoyed by Gagauzia are devolved, rather than original, confirming that Gagauzia shall be governed on the basis of the national constitution and national laws. The public powers, including the legislative powers of Gagauzia, are broad, but probably exclusively defined. They are subject to review by the Moldova Constitutional Court, which acts as dispute settlement mechanism with the involvement of the state parliament and president. Gagauz legislation is valid only to the extent that it does not conflict with the legislation of Moldova. The entity has its own symbols, to be used alongside the state symbols of Moldova. Overall, this would appear at first sight to be a typical settlement where the acknowledgement of the right to self-determination has been traded for devolved autonomy. Or, to put it in other words, self-determination has been acknowledged on the strict condition that it cannot be actualized through secession. The right has been spent in the acceptance of integration with Moldova on the basis of an autonomy settlement. Nevertheless, the express invocation of the right to self-determination does make this case somewhat special. Moreover, this right is not merely a notional one, as it can, according to the law, be actualized in one circumstance: In the case of a change of the status of the Republic of Moldova as an independent state, the people of Gagauzia shall have the right of external self-determination.

Hence, one might wonder whether this settlement is one of association rather than integration. Gagauzia does obtain a self-determination status that is actionable, although under a very narrowly defined condition. Otherwise, the settlement is heavily dominated by territorial autonomy elements, although this has not been fully implemented. While not covered in a full case study, this project also peripherally considered the case of Transdniestria. A memorandum on the Bases for Normalization of Relations between the Republic of Moldova and Transdniestria was achieved on 8 March 1997, signed by the Republic of Moldova and Transdniestria, with the Russian Federation acting as guarantor state, and in the presence of the OSCE  

Article 1(1). Article 1(4).

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chairman in office. As was the case in the Abkhazia document, the preamble refers to the principles of the UN, the OSCE, and generally recognized international norms of international law. However, there is no reference to self-determination to balance these provisions which tend to favour the doctrine of territorial unity. In Article 2, the agreement foresees the “establishment between them of state-legal relations”. A formal document on status including the division “and delegation” of competences is to be negotiated immediately. This might suggest a far-reaching separate identity for Transdniestria, but within the overall legal framework of Moldova. Article 3 establishes the right of the entity to establish unilateral international contact in the areas of science and culture. This too could be consistent with integration on a quasi-federal basis. Moreover, that article also indicates that Transdniestria shall “participate in the conduct of foreign policy of the Republic of Moldova – a subject of international law – on questions touching its interest.” This implies that Transdniestria is not a subject of international law. However, its strong internal legal identity is reflected in a power of co-decision on foreign affairs issues of special concern to it. A unique feature is provided in a joint statement of the presidents of the Russian Federation and Ukraine in connection with the signing of the memorandum. In this joint statement, Russia, the guarantor of the principal agreement, and the Ukraine, a mediator, declare that it will not be interpreted or acted upon in contradiction with existing agreements and OSCE decisions “which recognize the sovereignty and territorial integrity of the Republic of Moldova.” Since then, however, the Moldovan government has moved away from contemplating a quasi-federal or even confederal solution for Transdniestria. Instead, since 2004, it has emphasized the concept of autonomy. The case of the Philippines provides a more complex settlement. The Tripoli agreement of 23 December 1976 already provided for the “establishment of autonomy in the Southern Philippines”, i.e., the areas mainly inhabited by the Muslim population. This was to take place expressly within the realm of the sovereignty and territorial integrity of the Republic of the Philippines.10 It took twenty years to reach the Manila agreement on the implementation of the Tripoli accord, adopted on 2 September 1996. That highly detailed instrument provided for a three-year period during which a southern ‘Zone of Peace and Development’ and other interim arrangements were foreseen. There would then follow a second phase involving the repeal of the existing constitutional provisions (Organic Act) and the decision by the “people of the concerned areas in a plebiscite to determine the establishment of a new autonomous government and the specific area of autonomy thereof.”11 Interim government was to be arranged through a devolved Southern Philippines Council for Peace and Development and local governance, along with the integration of the armed forces. In Phase II, there was provision for self-government through an Executive Council, a Legislative Assembly, and Administrative System, and provision for representation in the 10 11

Tripoli Agreement, first principle. Section I.

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national government. The construction of state authority locates all public authority in the Southern Region, other than that specifically retained by the centre (foreign affairs, defence and security, fiscal and monetary policy, transport and communications). There is also provision for a special regional security force controlled from within the region. Detailed provisions for education, economic self-management and fiscal relations (an Islamic ‘banking unit’ to be established, but within the framework of the National Bank), and provisions for revenue sharing were also provided. Implementation of the agreement was delayed and, as the case study chapter reveals, in many respects flawed. Hence, the case study chapter expects a new attempt to establish or implement a settlement.12 However, its basic shape as a settlement that denies external self-determination is unlikely to be changed. The most advanced settlement based on a denial of the option of secession is represented by the case of Macedonia. The armed campaign of the ethnic Albanian NLA fighters was not directed towards independence. Instead, it sought a more pronounced recognition of the identity of ethnic Albanians in Macedonia, including territorial autonomy. However, the developments in Macedonia in the first half of 2001 were widely seen to be potentially part of a pan-Albanian agenda, also involving Kosovo. Certainly from the perspective of the central government of Macedonia, the NLA appeared to be mainly supported from Kosovo, and the possibility of detaching ethnic Albanian populated areas and joining it to Kosovo was strongly feared. The Ohrid Agreement of 13 August 2001 was signed by the Macedonian political parties alone, despite the very strong international involvement in its creation. The agreement confirms the territorial integrity of Macedonia, stating that “Macedonia’s sovereignty and territorial integrity, and the unitary character of the state are inviolable and must be preserved. There are no territorial solutions to ethnic issues.” Consistent with this aim of preserving the unitary character of the state, the Framework Agreement does not formally establish territorial autonomy for land bordering Kosovo and mainly inhabited by ethnic Albanians. Instead, however, it establishes a disguised form of territorial autonomy through the means of “enhanced local self-government” of mainly ethnic Albanian inhabited municipalities, including the possibility of the coordination of the administration of these areas. A sophisticated mechanism of co-decision in the central parliamentary organs is provided for, avoiding the automatic veto mechanism that has dogged the Bosnian settlement. Through the Committee on Inter-community Relations, a potentially effective mechanism of dispute settlement provisions has been introduced, backed up by the role of the Constitutional Court. There is also provision for equitable representation of all communities in the state organs, including the judiciary and police. Legislation has been introduced to enhance educational and language rights of the communities. While there was strong international involvement in the achievement of the settlement, the international role in implementation is more limited. Formally, there is international 12

See Chapter 6.

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involvement in the crucial issue of holding a census and in police training. Informally, however, the EU mission in Macedonia has played a key role in mediating the adoption of the constitutional changes required by the Ohrid agreement and in the adoption of the special legislative measures that were envisaged. The Dayton Agreement on Bosnia and Herzegovina of 14 December 1995, in its internal aspects, provides the most complex example in this category. The settlement of course confirms the statehood and continued legal personality of the state of Bosnia and Herzegovina. However, the settlement is more noteworthy for its treatment of the Srpska Republic and its ethnic Croat counterpart. Both were left in existence, the former as one of the two constituent entities out of which Bosnia and Herzegovina is composed, the other as a constituent unit of the other entity, the ‘Federation’. There is a fairly pronounced entitlement of the entities “to establish special parallel relationships with neighbouring states” but this is subject to the “sovereignty and territorial integrity of Bosnia and Herzegovina.” Hence, the claim to self-determination in the sense of secession of both entities is precluded, a fact also confirmed in the attendant Chapter VII Security Council resolutions.13 Instead, a highly fractionated and complex power sharing arrangement is provided, locating most powers at the level of the Srpska entity and the Muslim/Croat Federation, respectively. Within the Federation, authority is again split, locating it mainly with associations of the mainly ethnic Muslim and Croat cantons. In terms of state construction, the centre only enjoys the authority specifically assigned to it; other authorities are exercised by the entities or, in the Federation, by cantons. Weak central authority is balanced with extensive human rights provisions, which are, however, not always effectively enforceable at the central level. Very extensive consociational mechanisms of co-decision, disproportionate representation, and veto provisions are not balanced by an effective dispute resolution mechanism. Instead, in practice, decision-making at the international level has had to take on this role. There is also provision for excessive representation in the government and in executive agencies at the central level, and separate agencies of governance at the entity, federal and cantonal level. There are even separate armed forces of both entities.14 II

Ratification of Secession

In stark contrast to the previous category of cases, a settlement can provide for a direct right to self-determination of nominated units, expressly including the right to self-determination. Essentially, this amounts to a ratification of a secession that has already occurred. In a few cases, a constitutional right to self-determination will have already existed, including the right to secession. For instance, the USSR constitution contained an express right to self-determination and secession for Union Republics. 13 14

Article 3(2)(a). For a detailed analysis, see Chapter 7.

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When the Baltic republics sought to activate their independence in 1991,15 this was nevertheless resisted by the central USSR authorities.16 While the authorities did not deny the right to self-determination, they sought to subject it to central approval through a protracted process of agreement by all other Union Republics and the national Congress of Peoples’ Deputies.17 This process would have taken some eight years and could have been brought to a halt by a negative decision taken outside of the republic seeking secession at any stage. Effectively, it would have nullified the constitutional right to secession. Lithuania formally reclaimed its independence in March 1991 – a move resisted by Moscow sought to maintain at least elements of effective control in the republic.18 Only when the USSR itself collapsed after the abortive hardline coup against President Gorbachev could independence be actualized, also in relation to Estonia and Latvia, which adopted formal declarations concerning independence at that time. All three were recognized by the State Council of the Union on 12 September 1991 (Crawford 1997). Soon afterwards, the USSR as a whole dissolved, as was confirmed in the Alma Ata Declaration and related instruments of December 1991.19 In another instance, several of the constituent republics of the Socialist Federal Republic of Yugoslavia, led by Croatia and Slovenia, and followed by Macedonia and Bosnia and Herzegovina, exercised what they claimed to be a constitutionally-based right to unilateral secession.20 While these claims were internationally recognized and UN membership was granted in May 1992 (delayed for a year in the case of Macedonia due to extraneous reasons), the then Federal Republic of

15

The Baltic Republics maintained that they had never been lawfully incorporated into the USSR, having been annexed in 1940. A number of Western states also took the view that the Baltic Republics had never de jure lost their independence. However, they found it somewhat difficult to respond when confronted with Lithuania’s unilateral claim to independence, which was only recognized by Iceland, until the USSR collapsed altogether. 16 Lithuania led the way, formally reactivating its independence on 11 March 1991. Estonia and Latvia, while declaring sovereignty, only formally and fully activated their independence on 20 and 21 August 1991, respectively, when it became clear that the central system of governance in the USSR was collapsing and a dissolution might be likely. 17 See Chapter 2. 18 Black Beret forces were used, for instance, in an assault on the Lithuanian television station to emphasize the continued claim to effective authority of the central government. 19 31 ILM, 138 et seq. 20 The preamble of the 1974 SFRY constitution – “proceeding from the right of every nation to self-determination, including the right to secession –” appeared to grant such a right. Led by the Badinter opinions, the EC/EU considered this to be a case of dissolution, rather than secession.

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Yugoslavia (Serbia and Montenegro) only ratified this result in the context of the Dayton settlement of December 1995.21 Ratification of a constitutional claim to self-determination will not normally attract a complex power-sharing arrangement. The unilaterally seceding entity will give itself a constitution. This may well include human and minority rights, minority protection provisions, and perhaps modest cultural or even territorial autonomy elements. However, as the arrangements for the newly independent state will not have been negotiated bilaterally or with international involvement, these mechanisms tend not to be well developed. Hence, it was left to the EU to press for subsequent provisions for Russian speakers in the Baltic republics and for minority arrangements in Croatia and Macedonia. This was followed some years later by Council of Europe supported drafting of minority legislation in the Federal Republic of Yugoslavia and autonomy proposals concerning Vojvodina. The exception is Bosnia and Herzegovina, which was subjected to conflict for two and a half years after it had been internationally recognized and ultimately to an internationalized settlement that was already noted above. The Dayton agreement confirms that Bosnia and Herzegovina “shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders.”22 III Deferred Possible Secession In a number of instances, the central government will come to accept that the secessionist unit is in fact entitled to self-determination. However, rather than providing for an immediate act of self-determination through a referendum, a standstill period will be provided for in a settlement agreement. Broadly, one can distinguish three different political constellations that may trigger the application of this device. These are instances of inevitable independence, possible independence, and unlikely independence or balancing of claims. A

Inevitable Independence

In the first type of case, both parties are fully aware that secession will occur. However, the standstill period is meant to facilitate negotiations on succession issues and the establishment of independent structures of government in the entity in question. Hence, when a change in government occurred that brought into power the previous opposition forces, it was agreed that Eritrea’s long-standing campaign for secession should now be satisfied, subject to a referendum to be held after a period of three years. As the eventual result of 99.8% in favour of independence proved, there could never have been any doubt as to the outcome of the referendum (Crawford 1997). The granting of self-determination status was therefore identical with the granting of independence. 21 22

See Chapter 17. Annex 4, Article 1(1).

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A further example of deferred secession with a certain outcome was provided by Chechnya. In 1991, that entity had declared unilateral independence from what was to become the Russian Federation. It had withstood a military assault from the Federation, impelling the central government to agree to a settlement. On 31 August 1996, General Lebed of the Russian Federation and Mr Maskhadov representing Chechnya adopted a joint declaration in the presence of an OSCE representative. The declaration proceeded from “the universally recognized right of peoples to self-determination, the principles of equality, voluntary and free expression of will” and determined that future relations of both entities should be determined in accordance with universally recognized principles and norms of international law by 31 December 2001. While currency, financial and budgetary ‘interrelations’ would be restored in the meantime, Chechnya would enjoy powers of legislation limited only by the observance of human and civil rights, the right of peoples to self-determination, the principles of equality among nationalities, and interethnic accord. On 12 May 1997, a formal Treaty on Principles of Interrelation between the Russian Federation and the Chechen Republic Ichkeria was concluded between Russian Federal President Boris Yeltsin and Mr Maskharov. In the treaty, both sides agreed to develop their relations on the basis of generally recognized principles and norms of international law, thus confirming the international legal personality of Chechnya. Essentially, therefore, the Russian Federation had settled for statehood, although deferred for a period of four to five years. However, citing the involvement of Chechen groups in acts of terrorism, Moscow unilaterally abrogated this commitment and set about to re-conquer the territory. This action was not significantly resisted by international bodies or states. Instead of defending the identity of Chechnya as a pre-state entity with international legal personality, they limited themselves to the demand for a cessation of an armed campaign that paid little regard to humanitarian law. B

Possible Independence

A second type of deferred secession concerns cases where independence after a standstill period is perhaps likely, but not inevitable. Deferral is a conflict management tool, allowing both parties to claim to their constituents that they have not caved in to the demands of the other side. Instead, they can maintain that the transitional period will consolidate their position. After interim governance, the central government may argue (or, in the case of Kosovo, the governments involved in the administration of the crisis thought), the pressure for independence will have subsided. The power-sharing element of the interim governance structure, it is hoped, will have demonstrated to the secessionist entity that its identity can be fully reflected within the legal order of the state. Leaving that structure, on the other hand, may bring economic and other risks with it. The secessionist party, conversely, will take success in a referendum to be a foregone conclusion. A very good example for this approach is represented by the Machakos Protocol of 20 July 2002. That framework document, which was supplemented in 2005 by a more detailed settlement, was concluded by the Government of Sudan and

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the Sudanese People’s Liberation Army/Movement. Its signature was witnessed by an envoy of the long-standing IGAD international mediation process (led then by Kenya’s president Daniel Arap Moi). The negotiations were also strongly supported by the US government, which, since October 2001, had applied certain pressures upon the parties. The preamble of the agreement at first appears to point to an attempt to integrate the country after prolonged conflict between the mainly Muslim North and the mainly Christian South. Division is to be overcome by correcting historical injustices and inequalities in development between both regions and by establishing a framework for governance through which power and wealth are equitably shared and human rights guaranteed. Article 1.1 of the agreement accordingly proclaims that the unity of the Sudan “is and shall be the priority of the parties and that it is possible to redress the grievances of the people of South Sudan and to meet their aspirations within such a framework”. However, this strongly integrative provision is immediately countered by Article 1.3, which states clearly and unambiguously that the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status. Article 1.10 concludes that the design and implementation of the Peace Agreement is to be performed so as “to make the unity of the Sudan an attractive option especially to the people of South Sudan”. The agreement then provides for a transition process to apply during an interim period lasting for six years. At the end of that period: There shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/A, for the people of South Sudan to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession.23

There then follows an agreed text on the right of self-determination for the people of South Sudan. This provides for a mid-term review of the implementation of the peace agreement by the parties and international representatives with a view to improving the institutions and arrangements created under the Agreement and making the unity of Sudan attractive to the people of South Sudan. In terms of state structure, the Protocol provides that the national Constitution of the Sudan shall be the supreme law throughout the Sudan. The Constitution is taken to be the source of all public authority, suggesting a devolved interim power-sharing arrangement. However, the Constitution is to be amended even before the transition period to take account of the elements to be agreed in the definite settlement. This includes a provision that limits the authority of the national government to the exercise of such functions “as must necessarily be exercised by a sovereign state at national level”. There is also provision for the exemption of the South from legislation inspired by the Shari’a. Instead, legislation of national application is to take account of the diversity in Sudan. 23

Article 2.5.

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A whole bundle of additional settlements based on the Machakos Protocols were completed during 2004, followed by a rapidly drafted new constitution for Sudan in 2005. The basic design of deferred secession was left untouched. The Bougainville agreement of 30 August 2001 represents perhaps the most interesting case of deferred possible secession. The agreement establishes an autonomy regime for Bougainville that is described in detail in Chapter 5. The autonomy is to be exercised under a “home-grown Bougainville constitution with a right to assume increasing control over a wide range of powers, functions and personnel and resources”. The agreement states one of its aims as being the promotion of the unity of Papua New Guinea and the maintenance of a mutually acceptable balance of interests between the interests of Bougainville and Papua New Guinea as a whole.24 Section C of the agreement contains detailed principles on a referendum. No earlier than ten years and no later than fifteen years after the election of the first Autonomous Bougainville Government, a referendum shall be held, unless the Bougainville government waives this entitlement. The referendum pledge is a conditional one, depending on the achievement of good governance and weapons disposal. A dispute settlement mechanism is to be established to address divergences relating to the referendum. A UN mission is to help stabilize the transitionary process. In terms of state structure, the Bougainville Constitution is the supreme law within the territory in relation to all matters that fall into its jurisdiction. The Constitution may be changed by Bougainville, according to special procedures. The national government exercises competence over defence, foreign relations, transport and communication, and some other areas. The Bougainville authorities enjoy authority over all other matters, provided they have been established in a list of powers to be developed. Unlisted items remain initially with the national government, although there is a procedure to address claims to the exercise of authority in these areas by either entity. Listed powers will be transferred gradually to Bougainville. While a Bougainville court system is to be developed, the national Supreme Court remains the final court of appeal for Bougainville, including constitutional matters. The rather cryptic Accord on Principles in Relations between Serbia and Montenegro of 14 March 2002 on the future of ‘a common state’, probably taking the form of a confederation, provides for a ‘sovereign identity’ of both constituent republics. The agreement was adopted under very strong pressure from the European Union. The underlying assumption appears to be that Montenegro does enjoy a residual right of secession, probably based on its former status as a constituent republic of the SFRY. However, the agreement obliges the parties not to seek independence for a period of three years. Should Montenegro leave the common state at that time, Serbia would automatically become the successor state to it. On 6 December 2002, a Constitutional Charter was generated, to be adopted by both entities and the federal structures of the former FRY. The state was de24 Section B.1.4.

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scribed as the ‘Union of Serbia and Montenegro’, having the aims of fostering integration with the EU, human rights and the maintenance of an ‘internal market.’ An Assembly of Serbia and Montenegro enjoyed supreme authority in relation to military issues, international affairs, and free movement of goods and services. There was a blocking mechanism in the Assembly, requiring a majority of the representatives of both entities. There was a president and a Council of Ministers, with provision for representation from both Serbia and Montenegro. A common defence force was controlled by a Defence Council, where no decisions could be taken against the wishes of either unit. A dispute settlement mechanism existed in the shape of a Court of Serbia and Montenegro with equal membership from both entities. As was provided in the March agreement, after a three-year period, either entity could initiate a procedure for the withdrawal from the union through a referendum. The state not withdrawing was to inherit the legal personality of the union. This is, in fact, what occurred in 2005, after Montenegro narrowly passed a referendum on independence. A final and interesting case on deferred possible secession is furnished by the Gagauz agreement already mentioned above. The structure of the agreement is very much a devolution-type settlement. Autonomy is granted to Gagauzia, but within limitations strictly set out in the agreement. As was already noted, the dominance of the legal order of Moldova as a whole is confirmed and there is in general no suggestion that Gagauzia might enjoy a legal identity as a constitutional self-determination unit. However, the agreement does provide for the possibility of secession for Gagauzia should Moldova change its political status (i.e., join neighbouring Romania, perhaps with Transdniestria joining the Ukraine). In this instance, a political development external to Gagauzia is constitutive of its legal identity as a self-determined entity should that development arise. C

Balancing of Claims

A further case might be one where independence is theoretically possible, but not likely in the foreseeable future. Hence, what is after all the granting of a selfdetermination status satisfies the demands of secessionist groups. This, on the other hand, is acceptable to the central government, as it appears that secession is not really possible, given the realities of the situation, especially including the population balance. In the 1998 Belfast Agreement on Northern Ireland, the Republic of Ireland and the UK “recognize the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland.” The Agreement continues: [I]t is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right to self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved

12  Addressing the Self-determination Dispute and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

This language might lend itself to differing interpretations. However, it appears that the Agreement moves towards a recognition that the actual self-determination unit is the island of Ireland as a whole. But the right of self-determination is to be exercised separately by the North and South, establishing a blocking mechanism for the mainly Unionist population of the North. The draft clauses/schedules provided in the Agreement for incorporation into British legislation provide: 1 (1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of the majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1. (2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.

This clause could be seen formally to establish a constitutional right to self-determination. While previously the United Kingdom had indicated that it would comply with the wish of the population of Northern Ireland to join the Republic of Ireland should this be made manifest in a referendum, this has now been made express (subject to the doctrine of parliamentary sovereignty). However, one must note that this is not a right of self-determination in the full sense. Instead, it is a right to opt for a specific territorial change, moving sovereignty in relation to Northern Ireland from the United Kingdom to the Republic of Ireland. Other options, such as independence, are not available. In terms of process, Schedule 1, to which reference is made in the above provision, requires the United Kingdom Secretary of State to order the holding of a poll on joining the Republic of Ireland “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”.25 Under this clause, the Secretary is required to hold a poll (shall), but this mandatory requirement only comes into force subject to the exercise of his or her appreciation of popular will – the very fact that can really only be assessed through the poll. No further poll is to be held for seven years after a referendum that has rejected a change in territorial status. This provision makes a change virtually impossible until a significant demographic shift has occurred, or until popular sentiment in the North has changed dramatically due to the experience of the new complex power-sharing arrange25

Schedule 1 (1 and 2).

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ments introduced by the accord. That arrangement provides for multi-layered governance from the local level to the level of Northern Ireland, the level of UK authority, and joint Anglo-Irish mechanisms. IV Agreement on Process A fourth approach to the self-determination issue is to leave the possibility of secession unaddressed and instead provide for a mechanism to address the issue at a future stage. This kind of case is perhaps exemplified by the Rambouillet agreement that was left unimplemented, and possibly the situation that has emerged in the context of Security Council Resolution 1244 (1999).26 Kosovo, an autonomous province within Serbia that nevertheless had full federal status, declared itself independent on 22 September 1991. Kosovo argued that it, too, should be entitled to constitutional self-determination, in line with the claims of some of the Yugoslav republics. A decisive international attempt to achieve a settlement was made in February/March 1999. The parties were presented with so-called non-negotiable principles put forth by an international contact group. These principles sought to balance wide-ranging self-government for Kosovo with the preservation of the unity of the Federal Republic of Yugoslavia. This compromise had been consistently supported by the UN Security Council, for instance in Chapter VII Resolution 1199 (1998). The draft agreement that resulted from talks conducted at Rambouillet and Paris confirmed “the commitment of the international community to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.”27 While the settlement was presented as an interim agreement, it was in fact virtually permanent, as its duration was not formally limited and changes could only be obtained with the consent of both parties – a most unlikely condition given their diametrically opposed interests. On the other hand, in a crucial provision, it was stated that: Three years after the entry into force of this Agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, each Party’s efforts regarding the implementation of this Agreement, and the Helsinki Final Act, and to undertake a comprehensive assessment of the implementation of this Agreement and to consider proposals by any Party for additional measures.28

26 Another view would be to classify this case as one of secession denied, given the strong references to the continued territorial integrity of the Federal Republic of Yugoslavia in both the Rambouillet Agreement and Resolution 1244 (1999). However, in view of the provisions invoked here, it was felt more appropriate to list this case under this heading. 27 Preamble. 28 Chapter 8, Article 1(3).

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This provision was of course not free of deliberate ambiguity. The reference to the Helsinki Final Act, which is generally taken to emphasize territorial unity over self-determination in the sense of secession, was taken to strengthen the position of the Yugoslav government. The prospect of the final settlement, “on the basis of the will of the people”, was understood to imply the possibility of a change in the status of Kosovo on the basis of a referendum. This latter point was confirmed in a confidential side-letter issued to Kosovo by the US delegation.29 The conditionality element, based on performance by the parties of their obligations under the agreement, also seemed to support the view that a change in status could be contemplated, depending on the conduct of the parties. While there may be dispute about the substance of the provision in terms of a possible change of status for Kosovo, it is of course principally a requirement of process. In mandatory terms, it provides that a meeting “shall” be convened three years after entry into force of the Agreement. That meeting would be “international”, presumably led once more by the international contact group. However, the mandate of the meeting might be quite limited. Rather than achieving a final settlement for Kosovo, the meeting was to determine the mechanism that would be applied towards achieving such a settlement. In terms of state construction, the Rambouillet draft was strongly geared towards the position of the Yugoslav side. The legal identity of Kosovo was fractionated, principal residual authority being based at the level of local communes. These ethnically compact entities would therefore enjoy all powers not assigned expressly to other levels of government. In addition, in a novel development, certain powers were allocated to national communities (i.e., the Serb minority in the territory). The powers of the Kosovo institutions, on the other hand, were substantial, but delimited by express grants of authority in the agreement. Significant powers also remained with the Serb government. The Rambouillet agreement was, after some hesitation, formally accepted by the Kosovo delegation. Although the Yugoslav delegation had initially signalled that it might support the political aspects of the proposed settlement, ultimately it refused to sign. After the termination of an armed campaign conducted by NATO in relation to this conflict, the UN Security Council adopted Resolution 1244 (1999). That resolution also provides for a fairly complex approach to the underlying self-determination issue. Again, the resolution restates the commitments of UN member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. It also recalls its previous call for substantial autonomy and meaningful self-administration for Kosovo. This is to be achieved through an international interim transitional administration overseeing the development of, “pending a final settlement”, substantial autonomy and self-government, and a transfer of authority to these agencies of self-government.30 The UN mandate, adopted under Chapter VII, also extends to “facilitating a political process designed to determine Kosovo’s future status, taking into ac29 On the drafting history and all other relevant materials, see Weller 1999 Ch 8. 30 Para 11(a) and (c).

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count the Rambouillet accords.”31 Annex 1 of the Resolution consists of the G-8 statement concluded at Petersberg, Germany, on 6 May 1999, when attempts to bring the conflict to a close were ongoing. That statement refers to: A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of the KLA.

Annex 2, which contains a list of conditions for the termination of hostilities that was accepted by the Federal Republic of Yugoslavia, restates this provision, adding that “[n]egotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions.” The meaning of these provisions is of course subject to dispute. The Federal Republic of Yugoslavia has pointed to the strong reference to territorial integrity and political independence. Instead of the more oblique invocation of the Helsinki Final Act in the provision of the Rambouillet Agreement, this requirement now appears expressly to limit the remit of the “political process” that is to occur. This limitation is no longer balanced by a reference to the “will of the people”. Still, there is a cross-referral to the Rambouillet accords, which shall be fully taken into account. Hence, it might be argued that the pledges contained therein have been incorporated into the regime of Resolution 1244 (1999). A more careful reading of the provisions in the Resolution and its annexes, however, reveals a somewhat more surprising result. The conditions established in the provisions cited above relate merely to the political process aiming to achieve an “interim political framework agreement”. That is to say, they are not focused on final status negotiations, but instead establish a limitation for an interim settlement in advance of a determination of final status (much like Rambouillet). Hence, the separate mandate for the facilitation of a political process designed to determine Kosovo’s future status established in paragraph 11(e) is unrestricted by any condition bar the requirement “to take into account” the Rambouillet accords. As was noted above, these are ambiguous, referring both to the Helsinki accords and also to the exercise of the will of the people, presumably through a referendum. In actual practice, the UN Mission in Kosovo has in fact proceeded quite swiftly in establishing an interim arrangement for self-government. A constitutional framework document for provisional self-government was promulgated on 15 May 2001. That document was mainly drafted by the UN mission, although both parties were invited to have input into the draft. This option was exercised by the parties in Kosovo to some extent, but mainly refused by the Federal Republic of Yugoslavia/Serbia. There is no express reference to the continued territorial integrity of the Federal Republic of Yugoslavia in that document. Similarly, when the 31

Para 11(e).

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UN appointed mediator Martti Ahtisaari presented his comprehensive proposal for the final status of Kosovo in February 2007, after a full year of negotiations between the parties for the final status, there was no reference to any constraints on independence. In fact, in his recommendations accompanying the package, President Ahtisaari recommended supervised independence as the only realistic solution – an option strongly resisted by Serbia and the Russian Federation. V

Conclusion

The self-determination rule in classical international law cannot resolve persistent claims to self-determination that have arisen outside of the colonial context. After all, the legal right of self-determination was expressly framed so as to exclude such cases. By strongly privileging the doctrine of territorial unity over the implementation of the will of a population that has expressed itself in favour of secession, it only leaves the options of struggle or surrender to such populations. Even in a colonial or post-colonial context, the doctrine of uti possidetis similarly disenfranchises populations that do not wish to be part of the newly-independent state. Again, no remedy is provided at the international legal level, and unprivileged armed struggle appears to be the only possible avenue towards potential independence. This study has identified four approaches to the settlement of self-determination conflicts that previously appeared unresolvable. These are: (1) the formal trading of a claim to secession for an enhanced identity of the secessionist entity within the state; (2) ratification of secession; (3) the acceptance of the identity of the secessionist unit as a self-determination unit, coupled with a deferral of the act of self-determination; or (4) the attempt to defer the issue of status altogether. This diversity of approaches is noteworthy. Moreover, in all four types of cases, complex power-sharing plays an important role. Option (1) represents a gradual evolution from the adoption of autonomy settlements to the use of complex power-sharing. Option (2) is a fairly novel development, representing an increasing acceptance that it may be necessary, after all, to grant independence even outside of the colonial context. This realization is only gradually being balanced with an insistence of power-sharing tools in relation to ethnically complex situations in the newly independent states. In cases of deferred secession, the third category of cases, complex power-sharing is employed towards two apparently opposed ends, depending on the perspective of the parties. The secessionist entity will view complex power-sharing as a means of establishing substantive self-governance in advance of full independence. The central government, on the other hand, may hope that complex power-sharing will demonstrate to the population that it can best express its identity within the framework of the existing state. Finally, the suspension of the self-determination issue by merely pledging a mechanism to address the matter in the future reflects the hope of the international actors involved in such instances that the matter can be best addressed at another time. In the meantime, however, complex power-sharing is intended to generate stability

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and to promote post-conflict reconciliation, to facilitate a substantive settlement at a subsequent stage.

Chapter 13 Power-sharing and the Vertical Layering of Authority: A Review of Current Practices Stefan Wolff

I

The Context of Self-determination Conflicts and Power-sharing

Self-determination conflicts are, at one level, also conflicts between competing views of how decision-making powers should be allocated to different layers of authority within a state, and thus how the state as a whole should be constructed. Traditionally, powers have been, and still are, distributed between different vertical layers of authority, for example, between central and local governments in unitary states, or between federal and federated governments in federations and federacies. In addition to such vertical layering of authority, the resolution of selfdetermination conflicts often requires additional mechanisms of power-sharing that are horizontal, i.e., where power is (mandatorily) shared between different parties at one-and-the-same level. While the level of such horizontal power-sharing can be the region and/or the central government, the precise mechanisms and rules of such horizontal power-sharing differ from case to case, and can be rigidly consociational, as in Northern Ireland, or voluntary, as in Macedonia, where they are facilitated by the ethnic demography, the structure of the country’s party system, and the rules of the electoral system. Depending on the complexity of a given power-sharing system, it comprises one or more of the following mechanisms: co-decision making (e.g., executive power-sharing), split decision-making (e.g., territorial arrangements, such as federacy or federalism; or corporate arrangements, such as cultural autonomy), and a range of pre-determined decisions (e.g., proportionality rules for representation for different communities in legislatures and the civil service) or pre-determined procedures (e.g., qualified majority voting or parallel consent regulations in legislatures). Within systems of power-sharing, the vertical layering of authority acquires extra importance, often necessitating specific new institutional structures, thus adding to the overall complexity of the process and outcome of state construction. However, the vertical layering of authority also provides opportunities for instituting formal and informal mechanisms of power-sharing at different levels Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 407-450

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of the political process – from the central government level down to that of local communities. Yet, it can only accomplish this if two conditions are fulfilled: the institutions and institutional structures created must be internally viable and externally recognizable. That is, they must be capable in a technical sense of delivering the outcomes they are set up to achieve (e.g., effectiveness and representativeness of the political process), and the institutions and outcomes must be recognized by the agents participating in them as, if not desirable, at least preferable over continued violent conflict. Under these conditions, vertically layered power-sharing institutions and the individual agents operating in and through them will be capable of establishing a political process that is predictable and stable. This in turn will facilitate, and over time be facilitated by, an increasing belief in the authority of the institutions and institutional structures thus created. With these preliminary considerations in mind, this chapter analyzes state construction in complex power-sharing systems from the perspective of how authority is distributed at and between vertical layers of authority. The empirical basis for this analysis is provided by eight recent cases of self-determination conflicts where attempts have been made to resolve them by establishing complex powersharing institutions. Examining the vertical layering of authority in Bosnia and Herzegovina, Bougainville, Gagauzia, Kosovo, Macedonia, Mindanao, Northern Ireland, and South Ossetia, I initially evaluate the particular vertical structures of state construction in each case and contextualize them briefly in the nature and dynamics of each individual self-determination conflict. The sequence of case studies is determined by the complexity of the institutional structures. I begin with Bosnia and Herzegovina, where power-sharing exists at regional and central levels, and is complemented by elements of devolution of powers to cantonal and municipal levels. At the next level of complexity, regional consociations exist in Bougainville, Mindanao, and Northern Ireland. Here two traditional conflict resolution techniques combine – territorial autonomy and consociational powersharing. Although similar in this particular aspect, the three cases can be further distinguished according to their institutional structures. The arrangements for Bougainville include limited power-sharing (co-decision making) between the regional and central authorities; in Northern Ireland, extensive arrangements for cross-border cooperation between Northern Ireland and the Republic of Ireland, as well as between these two entities and a range of others within the British Isles form part of the 1998 Agreement; and, in Mindanao, the co-optation of regional officials to corresponding central institutions again provides for limited co-decision making. The remaining four cases are examples of territorial autonomy (Gagauzia), enhanced local self-administration (Macedonia and, pending the resolution of its final status, Kosovo), and a quasi-sovereign parallel entity (South Ossetia). Following this description of the empirical basis of this chapter, I then assess the relevance of the vertical layering of authority within complex power-sharing systems by comparing and contrasting all eight cases from the perspective of the types of institutional structures; the combination of vertical and horizontal power-sharing mechanisms; the distribution of powers at and between different

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

vertical layers of authority; the types of coordination between different vertical layers of authority; the constitutional and legal entrenchment of the institutions created; and territory and population as boundaries of authority. Following this thematic comparison, I examine three common and potentially problematic issues relating to the vertical layering of public authority in complex power-sharing systems: the relationship between vertical and horizontal layers of power-sharing, the coordination of government activities at and between these different layers, and the overall political institutional settlement within which vertically and horizontally structured institutions have to operate. Synthesizing this discussion, I conclude by outlining the role that the vertical layering of authority can play as part of a power-sharing ‘toolkit’ by examining the main types of institutional structures and mechanisms of policy coordination and by assessing their contextdependence. II

Multiple Layers of Authority in Practice: A Brief Review of Eight Case Studies of Complex Power-sharing

In order to assess similarities and differences and their significance in the vertical construction of state institutions, empirical data are required. Given the focus of this chapter, the following case studies do not attempt to provide a comprehensive analysis of each conflict and its settlement, but rather concentrate on how executive, legislative, and judicial institutions are constructed in the state overall and at multiple levels of authority. A

Bosnia and Herzegovina

The war in Bosnia and Herzegovina was part of a wider regional conflict – the disintegration of Yugoslavia. Over three-and-a-half years, between 1992 and 1995, three main conflict parties – Serbs in Bosnia (and their supporters in Serbia), Croats in Bosnia (and their supporters in Croatia), and Bosnian Muslims – fought each other in shifting alliances with different aims. Serbs sought secession and unification with Serbia, as they felt threatened in a state potentially dominated by a Muslim or Muslim/Croat majority hostile to them. To some extent, Croats shared this goal of secession and unification (with Croatia), while Muslims fought to prevent the disintegration of what they perceived as their ancestral homeland. The intensity of the conflict prompted the UN to declare six safe areas for Muslims and to despatch a peacekeeping force for their protection. Following the breakdown of a four-month ceasefire between Muslims and Serbs, the latter launched an intensive campaign against Muslim safe areas between May and August 1994 in which large numbers of civilians were deliberately targeted and killed. In response, NATO intensified its air strikes against the (regular and ir

For detailed background on the eight case studies of self-determination conflicts, refer to Pat Two of this volume.

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regular) armed forces of the Bosnian Serbs and eventually forced all three conflict parties to the negotiating table in Dayton, Ohio in September 1994. The Dayton Peace Agreement of 1995 provides the legal foundation upon which the post-war Bosnian state has been constructed. It establishes several layers of authority: principally, the state level, the entity level, and the local level. Within the Bosnian-Croat Federation, cantons provide a further layer of authority. All four layers of authority have their competences clearly laid out in the Dayton Peace Agreement, its various annexes and follow-on documents, as well as various subsequent amendments. A significant change to this structure was made in 1997 when the so-called Peace Implementation Council, uniting almost sixty states and governmental and nongovernmental organizations involved in the implementation of the Dayton Peace Agreement, decided to endow the Office of the High Representative with the authority to dismiss elected and unelected officials in Bosnia and Herzegovina if they were deemed to obstruct the implementation of the Dayton Peace Agreement, and to make legally binding decisions (i.e., to pass laws) in any area in which the state or entity parliaments were unable or unwilling to legislate. This establishes the High Representative not only as the ultimate arbiter in any cases of difficulties in implementing the Dayton Peace Agreement and in coordinating policy between the institutions it established, but endows the office, similar to that of the Special Representative of the UN Secretary-General in Kosovo, with significant legislative and executive powers. This is comparable only to the powers of the Secretary of State for Northern Ireland, who, through subsequent amendment to the original Agreement, is able to suspend Northern Ireland’s power-sharing institutions and assume their executive and most of their legislative powers. What is striking about the construction of the Bosnian state is the almost excessive degree of decentralization (Figure 1). Powers at the level of state institutions are very few. They include foreign relations, foreign trade, customs, monetary policy, immigration, international and inter-entity criminal law enforcement, communications infrastructure, inter-entity transportation, air traffic control, and inter-entity coordination. Any other power or part thereof, not explicitly mentioned, is by default allocated to the entities, which thus become the sources of original authority. Whereas there is further devolution to cantons and eventually to municipal authorities in the Bosnian-Croat Federation, the Republika Srpska is an almost oddly centralized entity in the context of Bosnia, retaining most powers at the level of the entity government and endowing municipalities primarily with administrative functions in the areas of development, urban planning, budget, local infrastructure, and specific local needs of citizens in the areas of culture, education, health, and social welfare, etc.

Cantonal President Cantonal Government

Municipal Executive

Cantonal Legislatures

Municipal Governing Council

Cantonal Institutions

Municipal Institutions

Entity Institutions

Presidency of the Bosnian-Croat Federation Governmentof the BosnianCroat Federation

Parliametary Assembly (House of Representatives and House of Peoples

Parliament of the Bosnian-Croat Federation (House of Representatives and House of Peoples

State Institutions

Judicial System

Judicial System

Judicial System

National Assembly of the Republica Srpsla

Presidency Council of Ministers

Office of the High Representative

Municipalities

Presidency of the Republica Srpsla Government of the Republica Srpsla

Constitutional Court

Judicial System

Central Bank

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

Figure 1 Vertical Layers of Public Authority in Bosnia and Herzegovina

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This particular layering of authority reflects the balance of power within Bosnia and Herzegovina as a whole and within the two entities. The entities gained wideranging autonomy in almost all functions of government, including defence and a significant part of foreign policy, and were thus able to assert their independence from a weak central government at the state level. This distribution of power at the state-entity nexus is mirrored within the Bosnian-Croat Federation: cantonal and municipal authorities are strengthened at the expense of the Federation government. Bosnia and Herzegovina, thus, could be characterized as an asymmetric federation in the sense that there are significant differences in how authority is layered within each entity. Under different circumstances, the existence of cantons in the Federation but not in the Republika Srpska, might have resulted in policy coordination problems within the overall structure of the Bosnian state, similar to those in Gagauzia and Mindanao. However, the fact that very few powers remain at the centre, which would require coordination, counteracts this problem, as does the existence of the Office of the High Representative, who retains key powers that enable him to enforce compliance of, and coordination between, different layers of authority within each entity and across entities, if only by dismissing elected and unelected officials unable or unwilling to cooperate and by passing by decree laws and regulations deemed necessary for the functioning of institutions at all layers of public authority in Bosnia and Herzegovina. In the context of the ethnic demography of Bosnia and Herzegovina, this layering of public authority has several implications. Firstly, most powers are located at the interethnically least contentious level – the entity in the case of Republika Srpska, the cantons in the case of the federation. This institutional design absolves elites from substantive cooperation, as significant powers mostly lie at levels where there is significant ethnic homogeneity. For this very reason, there is, secondly, little or no need for segmental autonomy: virtually monoethnic levels of government have authority over (usually segmented) policy areas such as culture and education. Thirdly, because of the degree to which power has been retained at the entity level, especially in the federation, and because of the fact that there remain certain powers in the competence of the state-level institutions, there is a greater need for mandatory horizontal elements of power-sharing (proportionality, qualified majority voting procedures in legislative assemblies, etc.), which are provided for in great detail in the Dayton Peace Agreement and other relevant constitutional documents and their subsequent amendments. The devolution of power to ever-lower levels of government, approximating almost perfect subsidiarity in the federation, is not a substitute for horizontal powersharing, in contrast to what can be observed in relation to Gagauzia, Kosovo, and Macedonia (see below). On the one hand, the need for horizontal power-sharing exists as long as there is a politically significant ethnic mix of the population at the relevant level of government. Related to this, on the other hand, the issue of who exercises authority in which policy area does not become less problematic if power is devolved further and further down from the centre. For the exercise of power to be legitimate, i.e., for power to become authority, the very institutions

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

of government need to be recognized as legitimate – and this is as true at the level of municipal government as it is at that of state government in Bosnia and Herzegovina and elsewhere. B

Bougainville

Similar to the conflict in Mindanao and Northern Ireland, and, with some qualifications, Kosovo, the self-determination dispute in Bougainville has two dimensions – one internal to Bougainville, and one between Bougainville and Papua New Guinea (of which Bougainville is still a part). The internal dimension of the conflict is characterized by the, at times, violent confrontation between those who favour the integration of Bougainville into Papua New Guinea, albeit with substantial autonomy granted to the province, and those who argue for independence. Because of the ethnic and linguistic mix of population groups in Bougainville, it is difficult to classify this internal dispute as an ethnic conflict, particularly as there is evidence that an overarching Bougainvillean ‘ethnic’ identity has developed over past decades that bridges the existing cultural (but not political) differences. The conflict between Bougainville and Papua New Guinea is a manifestation of a secessionist conflict – a peripheral region seeking independent statehood – with the national government rejecting this demand for economic reasons (when it was operating, the Bougainville copper mine generated about one sixth of Papua New Guinea’s tax revenue), as well as out of fear that accepting the secessionists’ demands might unleash further secessionist claims elsewhere in the country. Intense conflict from the late 1980s to the mid-1990s, initially between secessionist Bougainville forces and national government security forces, and subsequently between pro- and anti-independence groups in Bougainville, led to several thousand people being killed and many times more forcibly displaced. Even though peace initiatives were launched almost from the day the conflict escalated violently, it was particularly from 1994 onwards that measurable progress was made in negotiating a comprehensive agreement with the help of the United Nations and some key regional states (primarily Australia, New Zealand, and the Solomon Islands). Yet, because of the duality of the internal and external conflicts, and the complexities arising from this, the Bougainville Peace Agreement was only concluded in 2001. It provides for an autonomous Bougainville government with clearly defined powers entrenched in and limited by the national constitution and operating according to principles established by a future Bougainville constitution. While the institutional structures thereby provided are the central concern of this chapter, it is also worth noting that the agreement specifies a future, albeit non-binding, referendum on independence in Bougainville and a weapons disposal plan to be co-monitored by the United Nations Observer Mission on Bougainville. Bougainville thus shares with Kosovo and South Ossetia the characteristic that a final status decision has been postponed or not made. However, as a formal agreement exists between national and provincial leaders laying down the principles of institutional design for the interim period,

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Bougainville’s situation more closely resembles that of Northern Ireland, where the Agreement of 1998 provides for referenda to be held on the so-called ‘border question’, i.e., whether a majority of people in Northern Ireland and the Republic of Ireland express their desire for a change in sovereignty in separate, parallel referenda. Examining the institutional structures relevant to the question of how a resolution of the Bougainville self-determination conflict was attempted requires examination of three different dimensions: the overall construction of the Papua New Guinean state, the distribution of powers between, and how they are exercised by, the central and provincial governments, and the design of provincial institutions aimed at resolving intra-Bougainville conflict between pro- and anti-secessionist factions. Although details of the last will depend on the outcome of constitutional negotiations among different political and other groups in Bougainville, the main parameters of the post-conflict Bougainville government have been laid down in the Bougainville Peace Agreement. Of particular relevance for this chapter is the fact that the national constitution of Papua New Guinea (as revised in accordance with the Bougainville Peace Agreement) will retain primacy over any Bougainville constitution in the sense that Bougainville constitutional law has to be compatible with Papua New Guinea constitutional law. Consequently, the head of state will only endorse the Bougainville constitution once he or she is satisfied that the proposed regional constitution is compatible with the national one and with any international obligations into which Papua New Guinea has previously entered. However, the Bougainville constitution will have supreme status in all areas of Bougainville’s jurisdiction and will be enforceable in the Supreme Court of Papua New Guinea and, to the extent that it provides for this, any Bougainville courts. Although the precise nature of the institutional arrangements in Bougainville itself are thus not yet clear at the time of writing (June 2003), the division of functions between national and autonomous provincial government is laid down in significant detail in the Bougainville Peace Agreement. Leaving aside the fact that there is a (largely ceremonial) head of state (i.e., the reigning monarch of the United Kingdom of Great Britain and Northern Ireland) who appoints a Governor-General, there is a three-tiered system of public authority in Papua New Guinea consisting of the national government, provincial governments, and local governments (Figure 2). As a province in its own right, Bougainville therefore fits neatly into the existing (symmetric) structure of the state of Papua New Guinea, but acquires, as a result of the Bougainville Peace Agreement, significant additional powers compared to those enjoyed by other provincial governments. Although there is very little evidence to the contrary at this early stage of implementation of the Agreement, it is unlikely that Bougainville will be plagued by the same uncertainties and difficulties in coordinating the exercise of powers and functions by different layers of authority that have been identified in the Gagauz and Mindanao cases, where additional layers of authority were created that did not fit in the pre-existing structure of the respective states. This is all the more likely as the Bougainville Peace Agreement foresees quite extensive arbitration mechanisms in case of disputes between the national and provincial government.

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

Figure 2 Vertical Layers of Public Authority in Papua New Guinea Head of State of Papua New Guinea Governor General of Papua New Guinea

State Institutions

National Parliament of Papua New Guinea

National Executive

Judicial System

Bougainville Autonomy Institutions

Legislation

Executive

Judicial System

Local Government

(Structures to be determined)

The distribution of powers and functions between the national and autonomous Bougainville governments is regulated according to a system of two comprehensive lists. The government list details the following powers and functions that are to be exercised exclusively by the national government: defence, foreign relations, immigration, highly migratory and straddling fish stocks, central banking, currency, international civil aviation, international shipping, international trade, posts, telecommunications, and all other powers either assigned to the national government under the Bougainville Peace Agreement or which it requires in the process of implementation. The list for the autonomous Bougainville government is less explicit and more ‘open-ended’, but simply includes all known or identifiable powers not on the national government’s list. In the area of foreign relations, special provisions are made to account for the distinct relationship between the central government and the Bougainville autonomous government, as well as for particular interests that Bougainville has. Thus, representatives of the Bougainville government may be included in delegations of Papua New Guinea to regional meetings and organizations; and before the conclusion of any future treaties affecting Bougainville directly or indirectly, such as border issues or fishing rights, a consultation process between the national and Bougainvillean governments has to be conducted. The list of powers and functions available to either government can be amended or altered in the future. Amendments are likely to occur whenever new powers and functions are identified, and in such cases the parties are obliged to inform one another of their intention to claim a particular function or power and to submit to agreed arbitration mechanisms if no consensus can be reached. Further alterations are possible where one of the two governments delegates powers and

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functions originally allocated to it to the other. Initially, all powers and functions are held by the national government, and their devolution occurs only after a process of notification and consultation initiated by the autonomous Bougainville government. That is, the Bougainville government will assume the powers and functions allocated to it in the peace agreement gradually, and there is only a limited automatism in the transfer of powers in the sense that any power or function not explicitly reserved for the national government has to be devolved to Bougainville upon request from the autonomous government. As the structure of institutions in Bougainville itself is subject to the outcome of negotiations on a new provincial constitution, little can yet be said about the layering of public authority in the autonomous province itself. Parallel local government structures had developed through the years of intra-Bougainville conflict (Council of Elders and Council of Chiefs) and will have to be integrated into subsequent new structures of local authority. However, the Bougainville Peace Agreement does not exactly prescribe this as necessary, but merely points out that under a Bougainville constitution such local structures of government may be created. What is, however, quite explicit in the agreement is that the Bougainville government will consist of three branches – a legislature, an executive, and a judicial system. C

Mindanao

The self-determination conflict in Mindanao is characterized by the parallelism of internal and external conflicts. Within Mindanao, the conflict between a predominantly indigenous Muslim population and a predominantly migrant Christian population is about the control of what Muslims perceive as their ancestral homelands. An additional complication in this territorial dispute arises from the fact that Muslims have become a marginalized minority as a result of massive immigration of Christian settlers multiplying Mindanao’s population over the past century by more than fifteen times and turning what was once a three-quarters majority of Muslims into a less than one-quarter minority. Superimposed on this ethno-religious regional conflict, there is a conflict between Muslim militants and the national government of the Philippines over the secessionist aspirations of a considerable section of Mindanao Muslims. Both conflicts combined from the 1960s onwards into a civil war and general state of lawlessness in Mindanao that saw tens thousands of people killed and hundreds of thousands displaced or turned into refugees. The two main insurgent agents are the Moro National Liberation Front (MNLF) and one of its break-away groups, the Moro Islamic Liberation Front (MILF). This has added a third dimension to the conflict, namely an intra-Muslim divide along ethnic and political lines. Efforts to bring peace to Mindanao in the 1970s and 1980s failed, despite an agreement being signed in Tripoli in 1976 and the 1987 approval of a new Constitution by referendum providing Mindanao with its own autonomous structures. The failure of these two earlier attempts to resolve the conflict peacefully was primarily due to the obstructionist attitudes of the two main rebel groups, which,

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

among other things, resulted in only four out of thirteen eligible provinces in Mindanao opting for membership in the Autonomous Region of Muslim Mindanao (ARMM). Following new efforts by the Philippines government, an agreement was concluded with the MNLF that was designed to bring the decades old violent self-determination conflict to an end by fully implementing the 1976 agreement and all subsequent legislation for autonomy arrangements in the ARMM. A subsequent referendum on membership in the ARMM resulted in only one additional province and one further town joining the autonomous region. As a layer of authority, the ARMM was ‘inserted’ into an existing four-tier structure in the Philippines, consisting of the national government and provincial, municipal, and local authorities (Figure 3). At each level, the traditional three branches of government – legislature, executive, and judicial system – exist, even though their competences extend to different areas. The particularity of the autonomous region not only arises from the fact that it is an additional structure in the Philippine political system or that it is made up of five, territorially non-contiguous provinces, but also in that it prescribes a power-sharing regional administration consisting of a cabinet and executive council, controlled by a Regional Governor and a Deputy Governor. Equally, the Regional Assembly is unique within the Philippines in that it comprises both popularly and corporately elected members. The judicial system in the region is distinct from other national judicial institutions in that it allows Muslim Shari’ah courts and tribal courts to practice, albeit only in areas of family and religious matters, alongside national judicial institutions. Authority between the national government and the ARMM government is clearly divided according to policy areas. Foreign affairs, defence, security, postal service, fiscal and monetary affairs, administration of justice, foreign trade, customs and tariffs, citizenship and immigration, communication and auditing remain the exclusive domain of the national government, while health, education, human resources, science and technology, people empowerment, intra-regional communication, and economic development are in the domain of the ARMM government.

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Figure 3 Vertical Layers of Public Authority in the Philippines National Government

Congress

President Government

Judicial System

National Security Council Autonomous Region of Muslim Mindanao

Regional Assembly (popularly and corporately elected)

Regional Governor and Vice Governor Power-sharing Cabinet Power-sharing Executive Council

Judicial System

Provincial Government

Provincial Assembly

Provincial Governor

Judicial System

Municipal Government

Municipal Assembly

Mayor

District Courts

Local Government

Local Assembly

Barrangay (local community) Head

Barrangay Courts

The key problem that remains to be resolved is not the separation of competences between the national government and the government of the autonomous region, but rather how authority is layered in the relationship between the ARMM government and the three pre-existing lower levels of government upon which the ARMM structure was superimposed, a situation that is similar to that of Gagauzia in Moldova. The nature of this problem is one of coordination within the specific system of institutions established with the creation of the autonomous region as an additional layer of authority. From this perspective, the allocation of specific areas of competence to the ARMM government proves both advantageous and disadvantageous at the same time. Its advantage is the clearly defined degree of autonomy that the autonomous region has thus achieved from the national government. However, this clear definition of powers at the same time may prove limiting in its dealings with provincial, municipal, and local levels of government, which have specific competences of their own that do not derive from the autonomous region as their original source of authority, but from the national government, and which, at the same time, report directly to the national rather than to the regional government. Rather than establishing a clear vertical division of power between national government and autonomous region, a dual structure is beginning to emerge. The ARMM has autonomy from the national

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government in some policy areas, but provincial, municipal, and local governments have competences in other areas where authority overall remains with the national government, thus bypassing ARMM and being accountable directly to the national government. As in Gagauzia, this situation has the potential to undermine the whole idea of autonomy for a specific region and render it meaningless, thereby providing fuel for renewed conflict. D

Northern Ireland

The conflict in Northern Ireland is essentially about competing conceptions of national belonging. The Nationalist vision of a united Ireland is diametrically opposed to the desire of a Unionist community to retain strong constitutional links with Great Britain in the United Kingdom. Since its creation in 1921, the province of Northern Ireland has seen more than one resounding failure of attempts to resolve this self-determination conflict. For the first fifty years after the partition of Ireland, the province enjoyed wide-ranging autonomy within the United Kingdom, having its own parliament, government, civil service, and judicial system. This, however, exacerbated ethnic tensions more than it contributed to calming them. Northern Ireland was run as a majoritarian democracy, with a Unionist majority heavily discriminating in all spheres of public life – from employment and housing to education and culture – against the Nationalist minority. When the Nationalist community, from the mid-1960s onwards, began to push for equal rights, the political system set up to protect the status and privileges of the Unionist community proved utterly unsuitable to handling the ensuing conflict. Escalating violence prompted the deployment of the British Army in the province in 1969 and the later suspension of the system of self-government in Northern Ireland in 1972. However, within a year of the suspension, the moderate political parties in Northern Ireland and the British and Irish governments had agreed on a new institutional framework that provided mechanisms for power-sharing between the two communities and a formal involvement of the Republic of Ireland in the governing of the province as the Nationalist community’s kin-state, the so-called Sunningdale Agreement, which failed within months of its inauguration. Throughout the next two-and-a-half decades, several initiatives to resolve the conflict failed. It was only when the Belfast/Good Friday Agreement, which replicates many of the key features of the 1973 Sunningdale Agreement, was concluded in 1998 after an inclusive negotiation process that the prospect of sustainable conflict settlement arose anew. The power-sharing institutions in Northern Ireland slot in between the central government in Westminster and the twenty-six local councils within Northern Ireland (Figure 4), and are, as a layer of public authority, by-and-large comparable to the institutional structures established in Scotland and Wales since 1997. The national government remains the residual source of all public authority. This appears to include, contrary to the original agreement of 1998, the power to suspend the power-sharing institutions in Northern Ireland unilaterally. In this respect, Northern Ireland is unique among the cases considered here in that its autonomy

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can be revoked at any time by the central government. When the power-sharing institutions in Northern Ireland are operational, they have powers in all presently devolved matters, i.e., economic development, education, health and social services, agriculture, environment, and finance. Depending on a future assessment by the British government, further powers may be devolved to the institutions in Northern Ireland. These are, at the moment, so-called reserved matters and include criminal law, criminal justice, and policing. A third category of powers is to remain with the British government indefinitely. These excepted matters are foreign and defence policy, the Crown, and monetary policy. Figure 4 Vertical Layers of Public Authority in the United Kingdom in relation to Northern Ireland Head of State

National Government

Houses of Parliament (sovereign)

Government of the UK

Judicial System

Power-sharing Institutions in Northern Ireland

Assembly

EXECUTIVE First and Deputy First Minister Ministers Executive Committees

Judicial System

Local Authorities

Council

Town Clerk and Chief Executive

Similar to the provisions relating to Gagauzia and Bougainville, the 1998 agreement foresees the possibility of constitutional change through a referendum. Should a majority of the people of Northern Ireland express the wish to unite with the Republic of Ireland at some stage in the future, both governments have committed themselves to respect such an expression of the popular will and the British government is to provide for referenda at regular intervals to gauge public opinion on this issue. A crucial difference in the case of Northern Ireland, however, is that for Irish unification to happen, a majority of the population in the Republic of Ireland also needs to approve such a change in international boundaries by referendum. Thus, in fact, secession itself is not an option, only an irredenta, i.e., unification with the kin-state.

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

The structure of institutions in Northern Ireland mirrors the classical division of powers between legislature, executive, and judiciary. The directly-elected Assembly has full legislative competence over all devolved matters. The power-sharing executive, which enjoys full executive competence over all devolved matters, is comprised of a First and Deputy First Minister (elected on a joint ticket) with coordinating executive functions, ministers (selected according to the d’Hondt rule) who formulate and execute policy and enact assembly legislation within the remits of their portfolios, and Executive Committees who scrutinize ministerial departments. Legislature and executive are complemented by an extensive judicial system consisting of a High Court, County Courts, and Magistrates Courts, an Attorney General, an Advocate General, a Public Prosecution Service, a Chief Inspector of Criminal Justice, and a Law Commission. The third layer of public authority relevant in the case of Northern Ireland is that of local authorities. Here, twenty-six local councils, also referred to as boroughs, have competences in a range of areas, including development, tourism, community relations, and the environment. Local authorities have a directlyelected Council and a Town Clerk and Chief Executive, who are responsible for running day-to-day affairs. E

Gagauzia

The territory of today’s Republic of Gagauzia, an autonomous republic in the Republic of Moldova, has belonged to a variety of rulers and states in its history. It was part of the Ottoman empire until 1812 when it was annexed by Russia. In the middle of the nineteenth century, it came under Romanian administration as part of the Romanian province of Moldova. After the Second World War, it became part of the Moldavian Soviet Republic and remained as such after the dissolution of the Soviet Union. A Gagauz self-determination movement began to develop from around 1980 onwards, but only gained significant momentum when the Moldovan Supreme Soviet passed a discriminatory language law in 1989. In November 1989, the Gagauz, who make up more than 80% of the population in their homelands, formed an ethnically based organization, Gagauz Halkî (Gagauz People), to represent their particular interests. This process of increasingly political self-assertion culminated in 1990 in the unilateral declaration of an independent Republic of Gagauzia, which, although it was not recognized either internally or externally, signified a new stage of escalation in the long-standing conflict. Although comparatively little violence was involved, this escalation prompted intense negotiations between Gagauz and Moldovan officials over the future status of their relationship. These were successfully concluded in 1994, resulting in the status of the Republic of Gagauzia as an autonomous republic within Moldova being formally recognized. The layering of public authority in Moldova follows a three-tiered system (Figure 5). The central institutions of the state are the original source of all authority except for those powers that are explicitly and fully devolved to Gagauz autonomous institutions or to the third layer of authority, the so-called rayons.

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Figure 5 Vertical Layers of Public Authority in Moldova State Institutions

Parliament of the Republic of Moldavia

President of the Republic of Moldavia Government of the Republic of Moldavia

Judicial System

Gagauz Autonomy Institutions

People’s Assembly

Governor of Gagauzia Executive Committee of Gaugazia

Judicial System

Districts (Rayons)

Council

Elected, but not reporting directly to the central government (2003–)

Head of Administration

Appointed by the Governor of Gagauzia (1998–2003)

The autonomous institutions of Gagauzia have devolved powers in the areas of science, culture, and education; housing and urban planning; health; sports; budgetary and taxation policy; economic policy; environment; industrial relations; and social security. As in most other democratic systems, the institutional system in Gagauzia is characterized by the separation of powers between the legislature (People’s Assembly), the executive (Governor and Executive Committee of Gagauzia), and a judicial system (comprising the Tribunal of Gagauzia and lowerorder courts). The areas in which the elected People’s Assembly is competent to legislate include most public policy areas, except defence and foreign affairs, as well as matters relating to the territorial organization of Gagauzia and the organization of local administration, elections, and referenda. The directly-elected Governor of Gagauzia issues decrees and regulations and proposes to the Assembly the Executive Committee, which is charged with implementing and enforcing laws passed by the Assembly, and with formulating and implementing policies within the remit of Gagauzia’s competences. The rayons in Moldova enjoy self-rule on local matters. Before 2003, the rayons were run by a Head of Administration who was, in all rayons falling into the jurisdiction of Gagauzia, directly appointed by the Governor of Gagauzia. Since 2003, the rayons have been run by an elected council that reports directly to the Moldovan central government. At worst, this may potentially render the autonomous institutions of Gagauzia superfluous. Even a slightly more optimistic perspective promises at best a rather muddled arrangement and increases the demand for coordination between the different layers of authority that are no longer ordered in a clear hierarchy. Similar to the Autonomous Region of Muslim Mindanao, there

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

thus exists a problem with the autonomy arrangements in Moldova in that the Republic of Gagauzia has now become a unique layer of authority in an otherwise (still) unitary state, but it does not have the authority to structure itself and the relations between its own layers of authority (i.e., Gagauz republican government and local governments in the territory of Gagauzia), as Bougainville, for example, is able to do by virtue of its own constitutional powers and as determined in the Bougainville Peace Agreement. Another feature of the Gagauz autonomy with direct relevance for the layering of public authority is the fact that Gagauzia has, in law, no clear territorial demarcation. The fact that local communities can decide individually, by referendum, whether they want to become part of the autonomous region has meant in practice that Gagauzia itself is not a territorially contiguous entity. This has not (yet) caused any noticeable administrative difficulties. At a theoretical level, however, it offers an interesting new perspective on the design of autonomous entities that lies somewhere between, and yet combines elements of, territorial and personal autonomy. Finally, one should note that the process of state construction in Moldova itself is far from complete. Another unresolved self-determination conflict (Transdniestria) will require substantial reform of the current state structure and in all likelihood will also affect the status of Gagauzia. At present (mid-2003), the most likely outcome of such state-wide institutional reform is a trilateral federation, with Gagauzia as a constituent element in it, but probably less powerful and less autonomous than the other two. F

Kosovo

Kosovo has a complex history with an array of different rulers and states claiming sovereignty over the area over time. With the exception of a brief interlude during the Second World War, Kosovo has been a province of Serbia for most of the twentieth century, despite the fact that it is now inhabited by an overwhelming majority of Albanians and borders the Republic of Albania. Throughout most of this period, Kosovo had some form of autonomy within Serbia and/or the various configurations of the Yugoslav state. Created on 3 September 1945 as a constituent part of Serbia, the status of Kosovo as an autonomous province with limited self-government was confirmed in the Yugoslav constitutions of 1946, 1953, and 1963, and in the Serbian constitution of 1963, before the Yugoslav constitutional reform of 1974 significantly enhanced the status of Kosovo as an autonomous entity in Serbia and Yugoslavia and gave it de facto equality with all Yugoslav Republics at the federal level, except for the right to secede. The interethnic tensions between Serbs and Albanians in the province increased under the 1974 autonomy arrangement, as it led to an ever-stronger perception among Serbs of discrimination at the hands of the Albanian majority in the province. After the death of Tito in 1980, interethnic tensions across Yugoslavia began to increase, particularly in Kosovo, where protesters began to demand republican status for the province (with the implication of subsequent secession). These protests were quickly sup-

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pressed by Yugoslav security forces, yet tension continued and occasionally escalated into violence. While more and more Serbs and Montenegrins left Kosovo, Serbian repression of Albanians in Kosovo increased, and public sentiment in Serbia turned increasingly anti-Albanian. By 1990, both sides had become even more radicalized, so that the 1990 removal of all elements of sovereignty enjoyed by Kosovo under the 1974 constitution and the (unrecognized) 1991 Kosovo Albanian referendum on independence were only logical steps along a path of further alienation between the two communities and of escalation of the Kosovo conflict. This process culminated in the events of the second half of the 1990s, which saw a violent ethnic conflict in Kosovo and eventually NATO’s air campaign against Serbia establishing Kosovo as a quasi-protectorate of the UN in 1999. Within the institutional structure that has emerged since 1999 (Figure 6), the Special Representative of the Secretary-General of the United Nations (SRSG) retains the full authority given by UN Security Council Resolution 1244. On this basis, the SRSG also retains full decision-making authority regarding any aspect of provisional self-government in Kosovo and can unilaterally effect any change to the existing Constitutional Framework. While the powers of the international community in Kosovo are thus broadly similar to, albeit somewhat more extensive than, those in Bosnia and Herzegovina, the design of Kosovo’s self-government institutions is less complex than there (Figure 1). Apart from the SRSG, a two-layered system provides the backbone for the exercising of public authority in Kosovo. The Kosovo central authority has a wide range of competences in almost all sectors of public policy. These include: economic, financial, and budgetary policy; customs; trade, industry, and investment; education, science, and technology; youth, sport, and culture; health and family policy; agriculture; environment; tourism; labour; social welfare; transport; media; communication; statistics; spatial planning; good governance; non-resident affairs; local administration; and judicial affairs. In coordination with the SRSG, the Kosovo Central Authority also has certain competences in the area of external affairs.

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

Figure 6 Vertical Layers of Public Authority in Kosovo Special Representative of the United Nations Secretary-General Municipal Administrator

Kosovo Central Authority

Assembly

President of Kosovo Government of Kosovo

Independent Bodies and Offices Municipal Institutions

Municipal Assembly

Judicial System

Ombudsperson

President and Deputy Presidents of Municipality Chief Executive Officer and Board of Directors of Municipality

Judicial System

The directly-elected Assembly of Kosovo is, among other things, responsible for the adoption of laws within the specified remit of Kosovo’s authority, for electing the president of Kosovo, and for approving the prime minister, as well as for endorsing any international agreements that fall within the remit of its competence. The executive branch of government in Kosovo is comprised of the president, who conducts Kosovo’s foreign policy in coordination with the SRSG, and the government of Kosovo, which exercises executive authority and is charged with implementing any laws passed by the Assembly. There is also a fully-developed court system, which is made up of the Supreme Court of Kosovo, District Courts, Municipal Courts, and Minor Offence Courts. In addition to these ‘traditional’ branches of government, Kosovo’s institutional structure also includes a set of independent bodies and offices, such as the Central Election Commission, the Judicial and Prosecutorial Council, the Auditor-General, the Banking and Payments Authority, the Media Commission, the Board of Public Broadcasters, and the Housing and Property Directorate/Claims Commission. A specially-appointed Ombudsperson is charged with receiving and investigating complaints about human rights violations and abuse of authority by any public body and thus provides an additional form of checks and balances at the central level of Kosovo. The third layer of public authority in Kosovo are the municipalities which have powers in all areas of local administration that are not expressly reserved for the Kosovo Central Authority. Horizontally, power is divided between a municipal assembly, an executive branch that comprises a president and deputy president

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of the municipality (who perform general oversight functions) and a Chief Executive Officer and Board of Directors (who implement all municipal decisions), and a judicial system that consists of Municipal Courts and the so-called Minor Offence Courts. The Municipal Assembly has competences in budgetary and financial matters; is charged with the election of president and deputy president, the appointment of officers and the establishment of committees; and is to resolve any disputes within the executive branch between chief executive officer and president. As a quasi-protectorate of the United Nations, Kosovo shares with a number of the other cases studied the fact that its final status remains to be determined. However, one crucial difference between Kosovo (and, for that matter, South Ossetia), on the one hand, and Bougainville, Gagauzia, and Northern Ireland, on the other, is that the latter three are institutionally integrated into larger state structures for the period until a change in their political status may occur, while Kosovo (and South Ossetia) are not. From an institutional perspective, this merely means that at some point in the future there may have to be changes to existing structures, but these are primarily technical matters. What is a potentially more difficult issue therefore is not that Kosovo and South Ossetian institutions may have to be reintegrated into a wider institutional framework of the Union of Serbia and Montenegro, and Georgia, respectively, but that this process of reintegration and the institutions emerging from it need to be recognized by the relevant political agents in these now quasi-independent entities and need to be technically viable at and between all levels of government. G

Macedonia

Although Macedonia’s independence from Yugoslavia came about peacefully, the country has experienced serious ethnic tensions, in particular between ethnic Macedonians and ethnic Albanians, but also between these two groups and the country’s sizable Roma minority. While the latter tensions were relatively minor, at least compared to other countries in Central and Eastern Europe with large Roma populations, they have increased since the conclusion of the Ohrid Agreement in 2001, which is seen by many Albanian leaders as threatening to establish a bi-national state. Albanians in Macedonia live territorially concentrated in the west of the state. Upon Macedonian independence they organized an unofficial referendum, which, at a turnout of 90% of the ethnic Albanian electorate in Macedonia, showed that roughly three quarters supported the idea of their own political and territorial autonomous structures. On this basis, ethnic Albanian parties argued for changes in Macedonia’s constitution to elevate the ethnic Albanian population to the status of a ‘constituent people’ of Macedonia, for improvements in the Albanian language situation, the establishment of an Albanian university, and the inclusion of ethnic Albanians in the administration. These tensions simmered for most of 

I am grateful to Eben Friedman for pointing this out to me.

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

the 1990s at a level below the threshold of violence, but escalated in the aftermath of NATO’s intervention in the Kosovo conflict in neighbouring Yugoslavia. The emergence of the ethnic-Albanian National Liberation Army significantly increased the stakes in the latent conflict, which duly erupted into a short, but relatively intense violent confrontation in 2001. Intervention by the European Union and the facilitation of negotiations between ethnic Albanian representatives and the Macedonian government resulted in an agreement on constitutional and administrative changes to the structure of the Macedonian state, aimed at providing greater autonomy to all local communities. In addition to this internal dimension, the complex nature of the relationships between Macedonia, on the one hand, and Albania, Bulgaria, and Greece, with their various territorial, ethnic, and political claims, on the other, has complicated the dispute between ethnic Albanians and ethnic Macedonians within the country. At several stages, there appeared a very clear and imminent danger that Macedonia would turn into a source of grave instability in an already volatile region. The acceptability of the settlement reached with the 2001 Ohrid Agreement to both the conflict parties in Macedonia and the relevant external agents (EU, US, neighbouring states) was therefore as important as its technical viability, i.e., the capacity of the new institutional structures thus created to live up to the expectations that the two conflict parties in particular had. According to the Ohrid Agreement, Macedonia retains its two-layered system of authority. The powers between the two levels – the national government and the municipalities – are now more clearly divided and the municipalities enjoy a substantive degree of autonomy within this system (Figure 7). The national government – comprised of a unicameral assembly, an executive with a president and cabinet government, and a judicial branch with a constitutional court and lower-order courts, as well as a public attorney with decentralized offices at the local level – is the residual source of all public authority in the country. At the local level, 124 municipalities and the capital city of Skopje have enhanced local self-administration powers in the areas of public services, culture, education, social welfare, health care, environment, urban and rural planning, economic development, and local finance. Municipal institutions comprise a council, whose competences include the budget and other financial matters, the establishment and control of public services, institutions and enterprises, and the establishment and supervision of governing and administrative organs at the municipal level. The municipal executive is made up of an elected mayor, who is responsible for the appointment and dismissal of all officers of the governing and administrative organs and services in the municipality and for their overall management. The governing and administrative organs and services draft and implement individual acts and supervise activities in their areas of competence.

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Figure 7 Vertical Layers of Public Authority in Macedonia National Government

Assembly

President of Macedonia Government of Macedonia

Judicial System

Municipal Institutions

Council

Mayor Governing and Administrative Organs

Judicial System

Neighbourhood Selfgovernment

In addition to these two layers of public authority that exist throughout Macedonia, citizens have the opportunity to establish so-called ‘neighbourhood’ selfgovernments within the municipalities in which they live. The precise nature of their jurisdiction and organization depends on the by-laws of the respective municipality, and thus leaves significant room to address specific local concerns in ways that are felt most appropriate by those immediately concerned. H

South Ossetia

Of all the case studies reviewed here, South Ossetia is the one where formal structures of vertically layered authority are the least developed. This is largely due to the fact that no final settlement of the conflict has been agreed upon by the main parties to the dispute – Georgia, South Ossetia, and Russia – and the OSCE, which acts as the principal mediator. The conflict in South Ossetia is best analyzed against the background of the dissolution of the Soviet Union and the subsequent problems of state-building in Georgia. A politically and economically disadvantaged part of the Georgian Soviet Socialist Republic during the Soviet era, political leaders in South Ossetia sought to use Georgian independence as a catalyst to improve the status of their region within Georgia. Already confronted with one major threat to the emerging country’s territorial integrity in Abkhazia, the Georgian state was intent on strengthening the central government and forging a Georgian national identity along the lines of an ethnically Georgian culture. Unsurprisingly, rhetoric escalated on both sides into tit-for-tat discrimination and eventually violent confrontation. Initially sporadic clashes developed into serious military confrontation, accompanied by an increase in the stakes on both sides – South Ossetians began to demand republic status (implying secession), Georgia abolished the existing autonomy of South Ossetia. A further two years of violence eventually subsided into a stalemate, but not before around 1,000 people had been killed and some 60,000 been displaced

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

within South Ossetia and Georgia and across the border to North Ossetia. Kinship links between South Ossetians and North Ossetians, who live in the Russian Federation, and Russia’s own geopolitical interest in maintaining influence in the Caucasus region after the end of the Soviet empire, added another dimension to the conflict that initially proved to be of an escalating rather than calming nature. Russia’s predominance in the region and concerns with regional instability due to the conflict in Chechnya and the tensions in Dagestan were recognized by other agents in the international community, which meant that, while the conflict was noticed, no formal intervention took place during its violent phase. Subsequently, however, international mediation efforts and development programmes have helped establish something akin to institutional structures that allow for a minimum of coordination between the conflict parties and for concrete approaches to the pressing social, political, economic, and military problems of the region. Probably most important of these bodies is the so-called Joint Control Commission (JCC) and its various organs, including a Working Group on Military and Security Issues and a Joint Law Enforcement Coordination Centre. The JCC and its members (Georgia, South Ossetia, Russia, and the OSCE) provide the only permanent administrative institution to coordinate issues of common interest (trade, transportation, organized crime, etc.) among the conflict parties. The Joint Peace-Keeping Force (Russia, Georgia, South Ossetia) established under the 1992 ceasefire agreement is a partner along with Georgia, South Ossetia, and the OSCE in the Working Group on Military and Security Issues. In addition, there are bilateral institutions, such as the Georgian-Russian Intergovernmental Body, also created under the JCC. Muddled and informal as these structures may be, they have been fairly successful in providing a minimum of regular coordination and joint decision-making among the conflict parties, and most crucially they have helped maintain the 1992 ceasefire for more than ten years. However, because of the nature of the arrangements on the ground, they cannot be classified in any sense as a manifestation of layered authority. Rather, in the absence of a comprehensive settlement, Georgia and South Ossetia are both quasi-sovereign in the territories under their control, bearing in mind the fragility, weakness, and often informality of institutional structures in both entities. III The Vertical Layering of Authority and Its Relevance to Complex Power-sharing Arrangements The brief overview of institutions and institutional structures given above illustrates the broad range of institutional designs available to state builders in addressing the specific conditions of particular conflict situations, the varied interests of conflict parties and other external agents connected with the conflict, individual parties involved, or other agents with political, economic, or other interests in the region. This is a true, albeit trivial, observation. However, what is more important for conflict resolution is the examination of the nature of commonalities between these cases, analyzing the impact of particularities on specific institutional designs encountered, and to study recurring problems, and how, and with what degree of

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success, they have been addressed in different instances. The remaining two sections of this chapter will therefore first look at a number of general structural aspects of institutional design and then (to the extent that this is possible given the often recent conclusion of some of the agreements) draw some conclusions as to the role that the vertical layering of authority has in the power-sharing ‘toolkit’. A

Types of Institutional Structures

The first element to consider in this comparative analysis of how vertical authority is layered in complex power-sharing systems is the number of layers of authority that actually exist across the eight case studies (Table 1). Table 1 Variation in the Vertical Layering of Authority Two-layered Structures Macedonia

i

ii

Three-layered Structures Bougainvillei Gagauzia Kosovo Northern Irelandii

Multi-layered Structures Bosnia and Herzegovina Mindanao

This ignores the fact that, from a purely technical point of view, the monarch of the United Kingdom of Great Britain and Northern Ireland is the official, albeit largely ceremonial, head of state and is represented in Papua New Guinea by a Governor General. This ignores the fact that the monarch of the United Kingdom of Great Britain and Northern Ireland is the official, albeit largely ceremonial, head of state.

Table 1 illustrates the predominance of three-layered structures of government in more than half of the cases (bearing in mind that South Ossetia cannot be properly categorized as a result of the absence of proper formal institutional structures). In the cases of Bougainville, Gagauzia, and Northern Ireland, these three layers are central, regional, and local government. In the case of Kosovo, central government functions are presently exercised by the Special Representative of the Secretary General, who derives his or her authority from UN Security Council Resolution 1244 (1999). Unless Kosovo is granted independence in a future final status settlement, the Special Representative will be replaced at some point, and with significantly reduced powers, by the national government in Belgrade, thus preserving the three-layered structure of authority. In Macedonia, the middle level of government – the region – is missing, reducing the levels of government to two, namely a central government and local governments, which are both prescribed in the constitution and whose functions and powers are detailed there and in relevant legislation. There also exists a legally guaranteed opportunity for citizens to develop a further layer of government at the level of neighbourhoods, but this is regulated by by-laws of the individual

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

local governments and thus a matter of local decision-making rather than of state construction. In the cases of Mindanao and Bosnia and Herzegovina, multiple levels of government exist. In Bosnia and Herzegovina, this is a result of the interplay of domestic, regional, and international factors in the process of state creation at Dayton, leading to a complex federal-confederal structure of the state. In the case of Mindanao, an existing four-layered structure of government was altered with the creation of a specific and unique fifth layer – the legal-political entity of the Autonomous Region of Muslim Mindanao – to which powers were devolved in an effort to resolve the underlying self-determination conflict. Another way of looking at structural types of vertically layered authority is to examine the degree to which the eight cases represent institutions that are structurally and/or functionally symmetric or asymmetric (Tables 2–4), as this perspective provides a more comprehensive picture of the structure of the entire polity concerned and the place and status of complex power-sharing institutions within it. Table 2 Structural Symmetry and Asymmetry of Institutions Structural Symmetry Macedonia Bougainville Kosovo

Structural Asymmetry Single Asymmetry Multiple Asymmetry Gagauzia Bosnia and Herzegovina Mindanao Northern Ireland

Table 3 Functional Symmetry and Asymmetry of Institutions Functional Symmetry Kosovo Macedonia

Functional Asymmetry Bosnia and Herzegovina Bougainville Gagauzia Mindanao Northern Ireland

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Table 4 Structural and Functional Symmetry and Asymmetry of Institutions Compared Structures Symmetric Bosnia and Herzegovina Bougainville X Gagauzia Kosovo X Macedonia X Mindanao Northern Ireland

Single Multiple asymmetric asymmetric

Functions Symmetric

X X

X

Asymmetric X

X X X

X X

X X

Tables 2 and 3 indicate that there is no clear-cut predominance of symmetric or asymmetric forms of institutional structures across the case studies (again, leaving aside South Ossetia), but that from a functional perspective, i.e., the way in which powers and functions are distributed horizontally at the relevant levels of government in a polity, asymmetry is more frequent than symmetry. In other words, the vertical layering of authority, regardless of whether it is structurally ‘coherent’ across a given state or not, facilitates asymmetric distribution of powers and functions, thus enabling central governments and specific regions to create a special relationship in the sense that more powers and functions or parts thereof are devolved to a particular region, which thereby acquires greater autonomy in a wider range of policy areas compared to other territorial entities in the same country. This is also demonstrated in Table 4, which illustrates that, while symmetric structures and symmetric functions correlate more frequently (Kosovo, Macedonia), symmetric structures do not preclude asymmetric functional capacities (Bougainville). B

The Combination of Vertical and Horizontal Power-sharing

One element of the complexity of power-sharing as a mechanism to resolve selfdetermination conflicts stems from the fact that constitutional engineers have developed innovative ways to combine traditional structures of horizontal and vertical power-sharing. While all the cases examined in this chapter are examples of state structures characterized by multiple vertical layers of authority, formal horizontal structures of power-sharing exist only in some of them, and where they do exist they always involve power-sharing at the regional level (Table 5).

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

Table 5 Combinations of Horizontal and Vertical Power-sharing No horizontal power-sharing Kosovo South Ossetia

Horizontal powersharing at national level only Macedoniaiii Moldovaiv

Horizontal powersharing at regional level only Northern Ireland

Horizontal powersharing at national and regional level Bosnia and Herzegovinav Bougainvillevi Mindanaovii

iii

Even though there is no mandatory power-sharing at any level in Macedonia, the power balance of national politics makes coalitions at the centre between ethnic Macedonian and ethnic Albanian parties highly likely, and Macedonia has been governed by such coalitions for several years. iv To the extent that certain members of the Gagauz government are co-opted into structures of the national government, there is a certain degree of power-sharing at the national level. v Mandatory power-sharing at regional level only applies to the federation. vi A regional constitution is yet to determine the details of horizontal power-sharing in Bougainville. vii To the extent that certain members of the government of the Autonomous Region of Muslim Mindanao are co-opted into structures of the national government, there is a certain degree of power-sharing at the national level as well as the mandatory power-sharing at regional level.

As the cases of Macedonia, Mindanao and Moldova demonstrate, the absence of formal structures of power-sharing at the national level does not preclude power nevertheless being shared to some extent. In Macedonia, this is more obvious, as the country’s demographic balances, structure of the party system, and electoral formula combine in a way that make the formation of government coalitions between ethnic Macedonian and ethnic Albanian parties likely (and they have been a reality since 1992). In Mindanao and Moldova, on the other hand, there is a somewhat greater degree of formality in power-sharing arrangements at the centre, as members of the regional governments are co-opted into respective branches of the national government. Co-optation, however, limits the extent of the influence that can be exercised by the region at the centre, as in both cases regional co-optees are outnumbered by other members of the national government and have little, if any, leverage compared to situations in which a regional party is a member of a governing coalition. Formal horizontal power-sharing at the regional level exists in all those cases where there is significant ethnic or other diversity within the region, i.e., where mere devolution of powers to a lower level of authority would simply replicate the conflict at the national level. This is clearly the case in Bosnia (Federation level), Mindanao, and Northern Ireland. The absence of regional horizontal power-shar-

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ing in Kosovo, Macedonia, and Moldova has different causes. In Kosovo, apart from the fact that no final status has been agreed yet, the only numerically significant minority group – ethnic Serbs – is relatively concentrated in the northern parts of Kosovo, and thus benefits directly from the significant degree of authority located at the municipal level. Additionally, reserved seats in the Kosovo Assembly for Serbs and members of other minorities ensures their presence and influence in the legislature. In Macedonia, the territorial concentration of ethnic Albanians, the range of powers devolved to the municipal level and the opportunity for citizens to establish a further layer of authority at the neighbourhood level addresses a wide range of self-government concerns among ethnic Albanians. In addition, the numerical strength of ethnic Albanians in the Macedonian polity and the structure of its party and electoral systems guarantee significant representation of ethnic Albanian parties in the national parliament and makes their participation in a coalition government at least highly likely. This strength of Albanians that allows them to benefit fully from the implementation of local autonomy as foreseen in the Ohrid Agreement (once relevant national legislation has been passed), is another explanation for the absence of horizontal powersharing: the geographical concentration and size of the minority make a federal solution less attractive for ethnic Macedonians, as it could be construed as a first step to the partition of the country. In Moldova, the relative ethnic homogeneity of Gagauzia, the ability of residents in districts to determine by referendum whether they want to be part of the autonomous territory, and the fact that local affairs in these districts are run locally are all meant to combine to provide sufficient autonomy for individuals and communities to make formal regional power-sharing unnecessary. This means that under certain conditions – relative territorial concentration of ethnic communities, sufficient levels of devolution, and a minimum degree of representation at the centre – vertical layering of authority can function as a useful substitute for formal structures of horizontal power-sharing, both at national and regional level, and suffice in addressing institutional dimensions of power (re)distribution in self-determination conflicts. The fact that vertically layered authority can only substitute for horizontal levels of power-sharing under very specific conditions is also highlighted by the example of Bosnia and Herzegovina, where, despite wide-ranging devolution, horizontal power-sharing remains mandatory at the level of state institutions and at the level of the Bosnian-Croat Federation. C

Distribution of Powers

One of the key questions to ask of any vertically layered system of authority is where powers rest; i.e., how different competences are allocated to different layers of authority and whether they are their exclusive domain or have to be shared between different layers of authority. As with other dimensions in this analysis, there is a certain degree of context-dependent variation across the eight cases of complex power-sharing under examination. Variation exists primarily with regard to the way in which powers are allocated and the degree of flexibil-

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

ity concerning new fields of policy-making not relevant or not included at the time a specific agreement was concluded. The principle mechanism to handle the distribution of powers is the drawing up of lists that enumerate precisely which powers are allocated to which levels of authority and/or which are to be shared between different such levels. These lists can be very specific for each layer of authority (Bougainville, Mindanao, Northern Ireland) or they can be specific for one or more layers and ‘open-ended’ for others (Bosnia and Herzegovina, Gagauzia/Moldova, Kosovo, Macedonia). The key difference in the latter case is which layer of authority has an ‘open-ended’ list, i.e., which layer holds original authority competence for any partly devolved power or any other policy area not explicitly allocated elsewhere (Table 6). South Ossetia, given the particularities of the situation there, cannot yet be categorized in any of these mechanisms of power distribution. Table 6 Power Allocation in Vertically Layered Systems of Public Authority Specific Lists Bougainville Mindanao Northern Irelandviii

Combination of Specific and ‘Open-ended’ Lists Open-ended list at centre Specific list at centre Moldova Bosnia and Herzegovina Macedonia Kosovo

viii In case the Assembly in Northern Ireland asks for it, the regional power-sharing institutions could enjoy an open-ended list of powers allocated to them, with only specifically excepted matters retained by the Westminster government.

In Gagauzia/Moldova and Macedonia, the national level holds original authority over all matters not expressly devolved to the lower layers of authority, while in Bosnia and Herzegovina the two entities retain all the competences not explicitly delegated to the level of state institutions (with the qualification that in the Federation cantonal institutions assume most of these powers from the Federation entity). Similarly, in Kosovo, the current system is more ‘open-ended’ with regard to the municipal institutions that retain powers in all areas of local administration not expressly reserved to the Central Authority. In the Philippines/Mindanao, the multi-layered system of public authority that is in place there has very specific lists of powers allocated to the individual levels within it, even though the central government remains the original source of all authority. This is also the case in Northern Ireland, but here the system of allocating powers operates on the basis of three different lists enumerating devolved, reserved (with the future possibility of devolution), and excepted (without the future possibility of devolution) matters. In Bougainville/Papua New Guinea, which also operates a system of specific power allocation to the different layers of public authority, an additional feature is that there are specific arrangements as to how to deal with emerging policy areas (a joint commission that will resolve

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disputes over the allocation of new powers). Another distinctive feature of the Bougainvillean system is that initially all powers allocated to the autonomous province are retained at the central level and are, albeit almost automatically, devolved to Bougainville upon application to the central authorities by the provincial authorities. An unambiguous distribution of powers should indicate that the most important issues of the underlying self-determination conflict have either been resolved or postponed (e.g., future referendum on independence) and that the potential for conflict re-erupting should be minimal and limited to disputes over emerging new policy areas not covered by the provisions of the original agreement between the conflict parties (provided that the institutions established discharge their functions properly). Where such an unambiguous allocation of powers is missing in the sense that one layer of authority automatically retains all powers not explicitly allocated elsewhere (and thus implicitly also the competence over all emerging new policy areas in the future), renewed conflict over the distribution of power between different layers of authority is more likely, even though there is no automatism in this. In cases where the central authority retains all the powers not expressly devolved, autonomous areas may, over time, seek renegotiation of past agreements or the allocation of additional powers. In the reverse case, central authorities may be continuously weakened, potentially leading to the break-up of the central state. This is obviously not on the agenda in the near future for any of the three cases where no such unambiguous allocation of powers has taken place (Bougainville, Mindanao, Northern Ireland), but it is an issue worthy of consideration in the construction of states within complex power-sharing institutional frameworks. D

Types of Coordination

Coordination of law and policy-making and their implementation is an important issue in the operation of any multi-layered system of government. In the context of self-determination conflicts and power-sharing institutions, it assumes additional significance, as coordination failures not only have an impact on the effectiveness of government but also have repercussions for the perception of a particular institutional structure designed to resolve a self-determination conflict. The eight cases studied in this analysis suggest that, although there is a wide spectrum of individual coordination mechanisms, these can be grouped into four distinct categories: co-optation, joint committees and implementation bodies, judicial review and arbitration processes, and direct intervention by the international community (Table 7).

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Table 7 Coordination Mechanisms between Different Layers of Public Authority in Complex Power-sharing Systems Co-optation

Mindanao Gagauzia

Joint Committees and Implementation Bodies (including ad hoc bodies sponsored by international organizations) Bougainville Macedonia Mindanao Gagauzia Northern Ireland South Ossetia

Judicial Review and Arbitration

Direct Intervention by the International Community

Bosnia and Herzegovina Bougainville Kosovo Macedonia Mindanao Gagauzia Northern Ireland

Bosnia and Herzegovina Kosovo

As Table 7 indicates, with the exception of South Ossetia, all the case studies exhibit at least two different coordination mechanisms, with one of them always being judicial review and arbitration processes. This suggests that there is a strong reliance upon the legal regulation of the relationships between different layers of public authority. This is similar to any other country that has adopted the rule of law as a basic principle of running its own affairs. It is therefore more interesting to consider the other three types of coordination mechanisms in greater detail with a view to examining the degree to which they are the specific results of adopting complex power-sharing institutions as settlements for self-determination conflicts. Co-optation, adopted in the Philippines and Moldova, is a mechanism to ensure the representation of regional officials (from the ARMM and Gagauzia, respectively) at the centre. In both cases, the regional governors and officials of their executive are ex officio members of relevant national government departments. This arrangement is, on the one hand, symbolic, and emphasizes the special relationship between central government and autonomous region, but, on the other hand, also necessary as in both cases the autonomous entities are artificial constructions from an administrative point of view and do not fit into the pre-existing structures of authority in either country. Co-optation thus becomes a mechanism to overcome this kind of administrative ‘abnormality’ and ensure that the special circumstances of the autonomous regions are borne in mind in the process of national law and policy-making. In the context of coordination between different vertical layers of authority in complex power-sharing structures, the need for joint committees and implementation bodies often arises from two sources – to find common interpretations for specific aspects of agreements and regulations and to coordinate the implementation of specific policies at national and regional levels. An example of the former is Bougainville, while the latter can be found in Macedonia (interethnic

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relations), Philippines/Mindanao (development), Moldova/Gagauzia (fiscal and budgetary policy, property legislation), Northern Ireland (cooperation between Northern Ireland and the Republic of Ireland, and among all entities party to the British-Irish Council), and South Ossetia (transport, crime prevention, Georgian-Russian cooperation). Such bodies can hold one-off (Moldova) or regular meetings (Papua New Guinea/Bougainville, Macedonia, Philippines/Mindanao, Northern Ireland); and they can be in their nature domestic, centre-periphery bodies (Papua New Guinea/Bougainville, Macedonia, Philippines/Mindanao, South Ossetia), or reflect the international dimension of a particular self-determination conflict (Northern Ireland, South Ossetia). They may be prescribed in agreements between the conflict parties (Papua New Guinea/Bougainville, Mindanao, Northern Ireland) or arise from actual needs (Macedonia, Moldova/ Gagauzia, South Ossetia). Unique to two case studies – Kosovo and Bosnia and Herzegovina – is the direct intervention of the international community as a mechanism to coordinate law and policy-making. In both cases, powerful international officials retain significant powers, enabling them to intervene directly into the political processes of the two entities. This results primarily from the unprecedented involvement of the international community in the process of resolving the two underlying selfdetermination conflicts and the responsibility that international agents thereby assumed for post-conflict state construction, as well as from the particularly bitter nature of the disputes concerned. E

Entrenchment of Institutional Structures

Guarantees of institutional structures of horizontal and vertical power-sharing are essential to prevent the arbitrary abrogation of devolved powers and thus to ensure conflict parties of the relative permanence of the institutions they agreed upon. Guarantees are particularly important for the relatively weaker party in a self-determination dispute, i.e., a specific minority, to protect it from a state reneging on earlier concessions. However, such guarantees are also valuable for states in that they commit all parties to an agreed structure and, in most cases, imply that there can be no unilateral change of recognized international boundaries. In principle, guarantees can be either international or domestic, and in the latter case they can be part of a country’s constitution or other legislation (Table 8). Given the complexity of many of today’s self-determination conflicts, guarantees often exist at more than one level. In addition, international guarantees can take the form of hard guarantees (international treaties) or of ‘soft’ guarantees (nonbinding standards and norms, declarations of intent, etc.).

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Table 8 Guarantees of Power-sharing Institutions International Guarantees ‘Hard’ ‘Soft’ Bosnia and Herzegovina Kosovo Northern Ireland

Bougainville Macedonia Gagauzia Mindanao South Ossetia

Domestic Guarantees Constitutional Guarantees in SpeGuarantees cific Laws Bosnia and HerzeBougainville govina Gagauzia Bougainville Macedonia Gagauzia Mindanao Kosovo Northern Ireland Macedonia

Table 8 illustrates that there is great variance across the eight cases considered here, and with only one exception (South Ossetia), guarantees exist at multiple levels. In terms of the strength of the protection that they afford established horizontal and vertical power-sharing structures, hard international guarantees are preferable over other forms of guarantees, provided there is significant commitment of the international community to uphold its guarantees. In Kosovo and Bosnia and Herzegovina, this commitment is unquestionable, with the presence of peacekeeping forces in both territories and with the investment that has been made over the past years by the international community in order to foster economic development, institution-building, and institutional reform. Whereas in Bosnia and Herzegovina and Kosovo there exist international bodies with a clear mandate (the multinational Peace Implementation Council and the UN Security Council, respectively), the situation in Northern Ireland is such that the hard international guarantee of the 1998 agreement exists in the form of a British-Irish treaty. The crucial difference here is that for any violation of the treaty (as has arguably occurred on several occasions with the unilateral suspension of the powersharing institutions by the UK government) to be addressed, one of the signatory parties needs to bring a case before a relevant international legal institution (e.g., the European Court of Justice). If this does not happen, the protection theoretically afforded by the link between the agreement and an international bilateral treaty remains an empty shell. Soft international guarantees primarily manifest themselves in the form of the involvement of international organizations in the negotiation, implementation, and (potentially) operation of a particular peace agreement. While not of the same legally binding and thus potentially enforceable status as hard international guarantees, a significant presence of international agents is often instrumental in shaping preference and opportunity structures for the conflict parties. In the cases studies, this has taken different forms. In Bosnia and Herzegovina, similar to Kosovo and Macedonia, an international troop presence, as well as the involvement of various international governmental and nongovernmental organizations on an unprecedented scale, have, for better or worse, been instrumental in the implementation and operation of the respective agreements thus far. In Bougainville, a UN Observer Mission has been crucial in facilitating demilitariza-

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tion; while in Gagauzia, the OSCE has played an important role in facilitating the coordination of policies and laws between regional and national government. In South Ossetia, the commitment of resources and personnel by UNHCR, UNDP, the EU, and the OSCE have contributed to the maintenance of the 1992 ceasefire agreement and the ensuing cooperation between the various parties to the conflict on a number of substantive issues. At the level of domestic guarantees, constitutional guarantees are more entrenched than those that have their source in normal legislation. Incorporation of specific provisions of peace agreements into national constitutions is a common way of realizing constitutional guarantees and has occurred in Bosnia and Herzegovina, Bougainville, Moldova, Macedonia, and, bearing in mind its provisional status, in Kosovo. In the case of Bougainville, an additional safeguard exists in that no changes to the agreed and constitutionally entrenched structure of the institutions created by the peace agreement is permissible except with the explicit consent of at least two thirds of the members of the Bougainville parliament. Guarantees through specific laws exist in the cases of Bougainville, Gagauzia, Macedonia, Mindanao, and Northern Ireland. In practice, they have proven weakest in Northern Ireland, where, in the absence of a written constitution, another law on the statute books has given the UK government the power to suspend the power-sharing institutions at any given time. F

Territory and Population as Boundaries of Authority

Authority as the legitimate exercise of political power has two boundaries – it is normally limited to a specific territory and/or a defined group of people. A national government has the authority to exercise its power within the territorial confines of the state it is governing and over the residents of this territory (with the exception of foreign diplomats, for example). Some elements of a national government’s authority may also extend beyond the territorial boundaries of its state, but then they will normally be limited to that particular state’s citizens, for example in the field of tax collection. In terms of the territorial layering of authority, the extent of these two limitations placed on the exercise of authority is similar. Regional, territorial autonomies are spatially confined. The powers devolved to a regional government only apply within the territorial boundaries of the region and, by extension, only to (permanent) residents of the region. An analogue to authority extending beyond territorial boundaries are instances of personal autonomy in which the autonomous body has authority over all individuals belonging to it no matter where they live in the territory of the state or region concerned. 

In reverse, this means that all members of the ethnic group concerned can enjoy the rights accorded to them in the autonomy arrangement anywhere in the territory of the relevant state. This form of autonomy is particularly useful in instances where groups are more dispersed. It is also used to complement territorial forms of autonomy in specific policy areas (culture, religious affairs, education, etc.) when autonomous territories are ethnically heterogeneous.

13  Power-sharing and the Vertical Layering of Authority: A Review of Current Practices

These observations are relevant in two of the cases examined here. The territories of Gagauzia and of the Autonomous Region of Muslim Mindanao were determined by referendum at the local level, giving the population an opportunity to express in a free vote whether they want to live under the authority of a newly created regional government or want to continue being governed within the existing structure of vertically layered institutions. In Mindanao, this vote took place at the level of provinces and towns, and in Moldova at that of local communities, thus allowing for a much more ‘precise’ gauging of popular will. In both cases, the result was that the autonomous territory thus created is not in fact a contiguous area, but is made up of a number of patches of territory. Early indications suggest that this is not necessarily detrimental to the exercise of authority at the level of the autonomous territory. A degree of personal autonomy exists in the Autonomous Region of Muslim Mindanao with regard to judicial affairs, as Shari’ah and tribal courts have authority alongside lower-order courts of the national judicial system in religious and family affairs to cater for the specific needs of the different religious, ethnic, and tribal communities in these areas. This suggests that there is an additional degree of differentiation available that goes beyond the traditional territorial delimitation of authority in that it incorporates a public consultation process for the definition of the territorial boundaries of the autonomous area. If combined with levels of personal autonomy in specific policy areas, the range of authority that an autonomous entity enjoys can be tailored to the specific demographic and geographic situation, taking account of settlement patterns and ethnic, religious, cultural, and other types of heterogeneity. While such ‘fine-tuning’ increases the complexity of vertical and horizontal power-sharing mechanisms, it may also make them more suitable to particular contexts and thus more acceptable. In other words, careful territorial and personal delimitation of autonomy potentially increases the belief in the authority of the institutions established among those governed by them and is thus likely to contribute to greater stability of these same institutions and the political process of which they are part. However, as I have previously indicated, adding a further layer of authority to those already existing within the structure of an established state increases the complexity of institutional design, places greater demands on policy coordination and has the potential to undermine the authority of the territorial entity created specifically to increase the autonomy of a population group seeking a higher degree of self-governance. However, what is striking about the arrangements in both Gagauzia and Mindanao is the fact that while the relevant local government units can decide in a referendum on whether they want to belong to the newly created autonomous entity, there seems to be no provision for the reverse process, i.e., units leaving the autonomous entity. In case of radical changes in the population balance in one or more such units, a new minority would be created within the autonomous entity (whose demands would have to be accommodated). Demographic developments always have implications for security perceptions and the stability

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of settlements of complex self-determination conflicts, but it is reasonable to assume that their implications would be even more severe in cases where territorial (re)arrangements are recent, precisely because they will imply a degree of fluidity that is threatening to majorities and minorities at the same time. On the other hand, given reasonably and rationally acting political elites, there is nothing to say that significant demographic shifts could not be addressed constructively. G

The Functioning and Stability of Institutions in Vertically Layered Complex Power-sharing Systems: Design vs. Context

Now that the key structural aspects of the case studies have been compared and contrasted, I will address three sets of issues that have a bearing on the functioning and stability of institutions within a system of vertically layered authority. Two of these issues – the relationship between vertical and horizontal layers of power-sharing institutions and the coordination of government activities at and between different vertical layers of authority – are structural issues and thus more easily subject to modification. However, the third one – the overall political institutional settlement within which vertically and horizontally structured institutions have to operate – is more of a contextual aspect, which depends on the interplay of a larger number of factors. Although contexts can also be shaped by interventions, the complexity of their make-up often means that interventions have intended and unintended consequences. In some instances, contexts will have to be changed in order to make any kind of conflict settlement at all possible, but more often it will be institutional structures that have to be adapted. While these three sets of issues are clearly inter-related, they are sufficiently distinct from one another to warrant separate treatment. In all the case studies, the vertical structures of authority are different in one of two, and sometimes both, ways: there are differences in the numbers of layers of authority in the polity concerned, and in the way in which powers are distributed between them. The specificity of each individual self-determination conflict partly accounts for the variance encountered, but this does not mean that there are no general lessons to be drawn. Inasmuch as any practice has developed yet, the number of layers of authority seems to be less critical than the question of whether additional layers are superimposed on pre-existing ones, as is the case with Mindanao and Gagauzia. In order for these layers of authority to be meaningful, vertical hierarchies have to be restructured, making lower levels of authority accountable to the newly created autonomous governments and subjecting them to their political agendas, rather than those of the centre. This is quite problematic in ethnically heterogeneous regions, especially where there are no formal or informal structures of powersharing at the regional level. This is equally true in cases in which the traditional vertical structure of the state has been preserved, but the competences of one entity in it have been significantly increased, leading to a ‘special relationship’ 

I am grateful to Tom Trier for pointing this out to me.

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between this entity and the centre, as is the case in Bougainville, and to some extent in Northern Ireland. While in both cases (additional layer of authority and increased competences for a pre-existing layer) the distribution of powers between centre and region is more or less a technical matter, it raises the issue of what status this particular region assumes within the overall structure of the state and how it relates to other layers of authority, both vertically and horizontally. Within such a context of domestic political dynamics, asymmetrical state construction, either in terms of vertical layers and/or in terms of different competences devolved from the central government to regional authorities, may not be sustainable, especially if less autonomous regions demand equity in the distribution of powers; or if additional layers of (regional) government created within pre-existing structures of a state are undermined in their authority because lower levels of government are unwilling to give up powers previously held, to submit to a new regional authority, or maintain ‘parallel’ reporting structures within the traditional vertical hierarchy. The second set of issues is quite closely related to this last point, namely the need for adequate coordination of government activity at and between different layers of authority. Again, the key issue here is to retain institutional legitimacy and ensure a smooth process of government throughout a given polity. The two are obviously not mutually exclusive, but what to some may be a matter of efficiency-driven decision-making may appear to others as (and may in fact be) undermining institutions created to resolve a self-determination conflict. The first aspect to consider here is the powers that central governments (or the equivalent international institutions in Bosnia and Herzegovina and Kosovo) have to enforce coordination and compliance of lower-level layers of authority. Suspending the power-sharing institutions in Northern Ireland on several occasions may have prevented their collapse but did little to create a sense of responsibility among the political elites or to assure people in either community of the sustainability of the peace process. The almost excessive powers that the High Representative in Bosnia and Herzegovina and the Special Representative of the Secretary-General in Kosovo have, and use, creates similar problems in that the very idea of democracy, i.e., government by elected officials who are accountable to the people who voted them into office, is distorted. This is not to say that such interventions are not justifiable or, in fact, necessary to facilitate the growth of genuinely home-grown democratic institutions and their proper functioning. However, it is important that such interventions by the international community can be subjected to a legal review process. Where accountability and transparency are missing, institutional legitimacy within a vertical hierarchy of power-sharing institutions may be fatally undermined. This potentially includes all those cases where coordination of government policy extends to far-reaching powers on the part of the central government (or equivalent) to interfere with policies of lower-level authorities, as in Northern Ireland, Kosovo, and Bosnia and Herzegovina, because regional elites are unlikely to develop a full sense of responsibility for sustaining their own institutions and/or their electorates may become increasingly frustrated and dis-

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enchanted with the lack of ‘real’ autonomy of the institutions that they accepted as part of a conflict settlement. Likewise, the restructuring of the Moldovan polity, which resulted in Gagauzia becoming an additional layer of authority without equivalent elsewhere in Moldova, may have been a reasonable decision from the perspective of institutional efficiency, but it is questionable as to whether it has not begun to undermine Gagauzia as an autonomous region in its own right. The resulting coordination problems are not unique to Moldova, and Mindanao may face problems similar to those Gagauzia is encountering. In Macedonia, on the other hand, the fact that there is a very simple two-layered institutional structure, and hence straightforward and uniform mechanisms of coordination, bodes well for retaining institutional legitimacy from this particular point of view. It is, however, important to bear in mind that this is very much facilitated by the territorial concentration of the Albanian community in the west of the country and the fact that electoral demographics encourage interethnic power-sharing at the centre. Thus, the Macedonian experience cannot readily be translated into a recommendation to transfer the relevant structures and coordination mechanisms to other cases. Rather, the important point to emphasize is that what is needed is both legitimacy and technical viability of the institutions established to ensure their sustainability and their ability to contribute to the settlement of a specific self-determination conflict. Finally, there can be no question that the overall political institutional design of the polity in question and the presence or absence of a final settlement of the conflict has a bearing on the structure of vertical layers of authority and the coordination between them, as well as their stability. Where institutional hierarchies are muddled and competences not clearly assigned (as is the case in Moldova and the Philippines), there is a danger that malign (future) governments will use the opportunities thus created in order to undermine regional autonomies. This emphasizes, once again, the need for a clear hierarchy of vertically layered institutions and the legal entrenchment of their powers. Equally serious is the lack of a final overall settlement for a particular conflict (Table 9). Especially where interim structures are set up (as in Kosovo) or develop out of a conflict stalemate (as in South Ossetia) that give regional authorities significant powers, there are serious long-term political implications for achieving a final settlement, i.e., to construct a viable state out of constituent components that had a prior existence as ‘quasi-states’. Post-conflict state-building following state failure or disintegration requires the creation of a power base at the centre to establish the authority of the state internally as well as externally. This is not to advocate strong centralized, unitary states, but to point out that, in the context of self-determination conflicts (i.e., where the structure and boundaries of the state are contested), the reverse procedure, namely to create strong regional power bases before a national or central one, often implies renewed conflict or bears the potential of ultimate state disintegration (just imagine Bosnia and Herzegovina without the presence and involvement of the international community). Why would regional elites give up a degree of independence achieved and submit to a

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central government, regardless of whether they would share power at the central level or not? Interim status, and especially the longer it persists and the more permanent it becomes, is therefore potentially detrimental to conflict resolution and, by extension, state construction and survival. Similarly, the future option of a constitutional change by way of referendum may have equally destabilizing consequences, as such options are interpreted as both a promise and a threat and cannot but have a polarizing effect on the communities affected by them. Table 9 Provisions for Final Status Settlement Final Status Agreed

Final Status to be Determined by No Provisions One-off ref- Referenda at Negotiations erendum regular intervals Bosnia and Herzegovina Bougainville Northern Kosovo South Ossetia Macedonia Gagauzia Ireland Mindanao

However, one should also note that postponing final status settlement is a legitimate strategy for conflict management. It enables political elites to focus on crucial issues affecting people’s everyday lives without being side-tracked by aspects of the conflict in which finding compromises is exceedingly hard or close to impossible. In such cases, and Kosovo and South Ossetia would fall into this category, delaying a final status agreement is vital to establish political processes that are, by-and-large, stable and free from violence. While this clearly does not resolve a given conflict, it makes it more manageable and less costly for those involved. H

Federation, Federacy, or Unitary State

All of the previous comparative issues in this section lead to one final question: namely, what the relation between the different layers of authority is in the eight case studies. In addition to unitary states, Elazar (n.d.: 9-10) distinguishes nine different forms of states with federalist components: confederation, federation, federacy, associated state, consociation, union, league, joint functional authority, and condominium. Of these, only two are relevant for the discussion here: federation and federacy. However, not all cases can be clearly categorized (Table 10). For only one is it straightforward: Macedonia is a unitary state. Bosnia and Herzegovina is the case that most closely resembles a federation, i.e., a “polity compounded of strong constituent entities and a strong general government each possessing powers delegated to it by the people and empowered to deal directly with the citizenry in the exercise of those powers” (Elazar n.d.: 10). Bosnia and Herzegovina possesses all Elazar’s criteria for a federation, with the sole exception of having a strong central government. While the weakness of the central government and the limited powers it has retained would normally point to a

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confederal arrangement, it fails the confederal test as it, strictly speaking, is not made up of “pre-existing polities” (Elazar n.d.: 10). Table 10 Forms of State Unitary

Bosnia and Herzegovina Bougainville Gagauzia Kosovo Macedonia X Mindanao Northern Ireland South Ossetia

Federation X

Federacy X X

X X

Undetermined

X

X

Elazar’s (n.d.: 10) definition of a federacy is that “a larger power and a smaller power are linked asymmetrically in a federal relationship in which the latter has substantial autonomy and in return has a minimal role in the governance of the larger power” and that “the relationship between them can be resolved only by mutual agreement.” This is most clearly the case for Gagauzia and Bougainville, but arguably, and to a more limited extent, also for Northern Ireland. In the latter case, the asymmetric link and substantial autonomy are clearly present. As for the dissolution of the relationship only by mutual agreement, matters are more complicated. The secession of Northern Ireland from the United Kingdom can only happen as the result of a referendum in the province (and a corresponding referendum in the Republic of Ireland), which then will require acceptance by the government in Westminster. However, it could also be argued that suspending the autonomous power-sharing institutions in Northern Ireland constitutes a case of dissolving this special kind of federalist relationship. In this case, no matter what the reading of the British-Irish Agreement, Northern Ireland’s consent is not required. As discussed above, the limited and insufficient constitutional entrenchment of Northern Ireland’s status as an autonomous entity in the United Kingdom gives it a weaker position than both Bougainville and Gagauzia. Nevertheless, Northern Ireland has a different position from that of a region in a decentralized unitary state, in that it has a full system of governing institutions and original authority in a range of policy fields, neither of which is enjoyed by regions in a decentralized unitary state. Depending on how the criterion of “a minimal role in the governance of the larger power” is interpreted, the fact that Northern Ireland sends eighteen representatives to the House of Commons in Westminster could be seen as such minimal involvement. This, however, is clearly a lesser form of participation than in Gagauzia (co-optation) and Bougainville (joint [executive] committees). Mindanao’s status as a federacy is similarly ambiguous. Unlike Northern Ireland, Mindanao’s participation in central government is more formally regulated through co-optation arrangements between the regional and

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national government. However, like Northern Ireland and unlike Gagauzia and Bougainville, Mindanao lacks full constitutional guarantees of its status, but a comprehensive peace agreement negotiated and signed with international involvement provides some compensation for this. Its status as the Philippines’s ‘fifteenth province’ is regulated in an organic law and endows the area with significant autonomous powers that are different and go beyond those enjoyed by any other province in the country. From this perspective, the Autonomous Region of Muslim Mindanao fulfills all but one of Elazar’s criteria for a federacy. The yet-undetermined status of Kosovo and South Ossetia stems from the fact that no final overall legal-political arrangements have been agreed in either of these cases. The most likely scenario for Kosovo is that of a future status as a constituent component of a federation of Serbia, Montenegro, and Kosovo. For South Ossetia, a federacy arrangement with the Georgian central government is one possibility, as is its participation in a future Georgian federation, with Abkhazia as another possible constituent entity in such an arrangement. IV The Vertical Layering of Authority as Part of the Power-sharing Toolkit Clearly, there is no single blueprint for the design of a system of vertically layered authority that could be applied to all self-determination conflicts alike. At the same time, these case studies highlight that constitutional designers have a wide range of different options at their disposal for the construction of technically viable institutional structures in response to self-determination conflicts that may be recognized as legitimate by the conflict parties. In such designs, the vertical layering of authority is a key component of complex power-sharing settlements, i.e., horizontal power-sharing alone is not sufficient for the establishment of stable political and institutional processes conducive to resolving self-determination conflicts. In fact, vertical layering of authority is a necessary condition in a number of cases for horizontal power-sharing: unless a region (or regions) becomes a locus of power, no power can be shared at the subnational level. Power-sharing in the Bosnian-Croat Federation, in Bougainville, in the Autonomous Region of Muslim Mindanao, and in Northern Ireland would not be possible if these regions had not been established as legal-political entities and powers had not subsequently been devolved to them. At the same time, it is important to bear in mind that horizontal power-sharing at the regional level is not a necessary consequence of vertically layered authority. In Gagauzia, Kosovo, Macedonia, and the Republika Srpska, sub-national layers of authority have not led to the establishment of formal power-sharing institutions at these levels. With some qualifications pertaining to the lack of formalized structures, this is also the case in South Ossetia. The difference between regions with horizontal  

A future federation may also be on the cards for Moldova, in which case Gagauzia and Transdniestria may become equal partners alongside Moldova. This, however, does not preclude the emergence over time of informal or spontaneous forms of power-sharing at the regional level.

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structures of power-sharing and those without is first of all one of the degree of ethnic (or other) heterogeneity. The bipolar ethnic and/or political demography of the Bosnian-Croat Federation, Bougainville, and of Northern Ireland, as well as the religious and tribal mix in the provinces that opted for membership in the Autonomous Region of Muslim Mindanao, required constitutional designers to devise mechanisms of conflict regulation below the national level and beyond traditional notions of subsidiarity and devolution. Context-dependence continues at this level as well, as becomes evident from, among others, the differences in strength that regional power-sharing authorities have in all these cases and the degree of power that lower levels of authority within them enjoy, such as the cantons in the Bosnian-Croat Federation or the individual provinces that make up the Autonomous Region of Muslim Mindanao. Where regional or national (formal) horizontal structures of power-sharing are missing in the case studies, demography and the vertical layering of authority has combined favourably in ways that make them superfluous. In Kosovo, for example, ethnic Serbs remain a sizable minority, but their territorial concentration and the relative homogeneity of the areas in which they reside means that the devolution of substantial powers to municipal authorities affords ethnic Serbs a reasonable degree of autonomy from the central authority in Kosovo, while a system of reserved seats guarantees them representation in parliament at the centre. In Moldova, where horizontal power-sharing is absent at the regional and, with some qualifications, national levels, the creation of the Gagauz autonomous territory and the fact that referenda were held at the district level over whether particular local communities wanted to belong to the Gagauz territory helped create a reasonably homogeneous territory within which horizontal power-sharing was not deemed necessary. Formalized structures of horizontal power-sharing at the national level exist only in a limited way in the form of co-optation of regional officials to corresponding national bodies. In Macedonia, the territorial concentration of ethnic Albanians in the west of the country, combined with a substantial degree of autonomy and power for local communities is, by-and-large, sufficient to address the major concerns of the minority community. Moreover, the fact that the demographic balance in the country and the structure of its party system facilitate interethnic coalitions at the centre contribute to the overall satisfaction that both major ethnic groups derive from this settlement. This degree of variation across the case studies suggests four important conclusions for the role that the vertical layering of authority has in the power-sharing toolkit. First, dividing power along a vertical structure of institutions can serve as a useful substitute for formal horizontal power-sharing at either national or regional levels, provided that national or regional ethnic demographies create suitably homogeneous territories and that substantial powers are devolved from the centre. In other words, such cases lend themselves to the application of forms of territorial autonomy or of the subsidiarity principle, instead of the use of codecision making as foreseen by power-sharing institutions. Moreover, a certain degree of representation of minority groups at the relevant central level (regional

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in the case of Kosovo, national in the cases of Macedonia and Moldova), in addition to these other two conditions, also seems to facilitate this kind of institutional structure. Second, while the vertical layering of authority may under certain conditions be able to substitute for the creation of horizontal power-sharing institutions, the reverse is empirically not the case. Even where power is shared at the national level (as in Bosnia and Herzegovina and Bougainville) or at the regional level (Bosnian-Croat Federation, Bougainville, Mindanao, Northern Ireland), authority remains vertically layered and lower levels of authority enjoy different degrees of autonomy in the local decision-making process. Third, coordination between different vertical layers of authority and the establishment of clear hierarchies are important to ensure that vertical layering of authority remains meaningful and can contribute to the long-term sustainability of a particular conflict settlement. Where there is a danger of eroding the autonomy of regions created as a particular layer of authority with the specific purpose of conflict resolution (such as the Autonomous Region of Muslim Mindanao and Gagauzia), conflict settlements may not be sustainable in the long term. This means, finally, that without safeguards against arbitrary government interference, it is unlikely that the conflict parties will develop a sense of satisfactory permanence and predictability in relation to a particular conflict settlement. The power to suspend devolved government in Northern Ireland may on several occasions have prevented the collapse of the power-sharing institutions in the province, but it has also reduced the willingness of the conflict parties to commit to working together, and develop a shared sense of responsibility for sustaining the institutional structures created by the 1998 agreement. Legal and constitutional entrenchment, possibly alongside international guarantees, is thus one important mechanism for the stabilization of institutional structures. However, from the perspective of the minority community another mechanism can be equally important, namely the option to secede in case of major constitutional, demographic, or political changes. Thus, if Moldova at some point decided to unite with Romania, Gagauzia has the opportunity to hold a referendum on its independence; Bougainville has a future option for a referendum on its independence from Papua New Guinea; and in Northern Ireland the popular will regarding unification with the Republic of Ireland is to be gauged at regular intervals. These two observations on entrenchment and popular consultation also underscore that the preservation of democratic procedures is a key factor for stabilizing institutional structures created for the purpose of resolving self-determination conflicts, because it is through this longevity that institutions acquire their legitimacy. While democratic institutions in themselves are not necessarily and automatically technically viable, compliance with rules and regulations agreed between all conflict parties and their democratic accountability to voters increases the survival chances of smooth and efficient institutional processes. Any form of complex power-sharing will always modify and constrain majoritarian forms of democracy, but this does not mean that power-sharing institutions can or should be run without popular support. Power-sharing does depend upon on

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the willingness and ability of elites to cooperate and make compromises, but it also depends on the willingness of the people to support their respective elites in this process and to uphold a settlement negotiated to bring about a non-violent, stable and predictable political process.

Chapter 14 Electoral Arrangements in Systems of Complex Power-sharing Andrew Reynolds

I

Why Electoral Arrangements Matter

As is noted throughout this book, the set of democratic institutions a nation adopts are integral to the long-term prospects of an embryonic democracy, as they structure the rules of political competition and determine whether minorities and majorities are embedded within the democratic process. In fragile societies emerging from socially and politically devastating conflicts, the effects of institutions are the most pronounced, as they are the building blocks of the power-sharing settlements that ultimately give the divided nation its best chance for healing and survival. Within the plethora of democratic institutions there is no more important choice than which electoral system is to be used (see Lijphart 1977; 1985; 1994; Sartori 1996; Reynolds 1999; Reilly 2002; Taagepera and Shugart 1989; Horowitz 1991). Electoral systems have long been recognized as one of the most important institutional mechanisms for shaping the nature of political competition because they are “the most specific manipulable instrument of politics” (Sartori 1968: 273) – that is, they can be purposively designed to achieve particular outcomes. Different ways of voting structure the arena of political competition and party system that develops, and offer incentives for elites to behave in certain ways by rewarding those who respond to these incentives with electoral success. The great potential of electoral system design for influencing political behaviour is thus that it can reward particular types of behaviour and place constraints on others. This is why electoral system design has been seized upon by many scholars (see Horowitz 1991; Lijphart 1977; 1984; Reilly 2002; Reynolds 1999; Sartori 1968; 1994) as one of the chief levers of constitutional engineering to be used in mitigating conflict within divided societies. As Lijphart notes: “If one wants to change the nature of a particular democracy, the electoral system is likely to be the most suitable and effective instrument for doing so” (1995: 412). While it is true that electoral system design has not proved to be a panacea to communal conflict in many places, the fact that electoral systems often preoccupy the minds Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 451-466

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of negotiators and that ‘getting it wrong’ can be so devastating persuades us that the electoral arrangements in our eight cases of complex power-sharing are more than worthy of our attention. In this chapter, I shall focus on two main aspects of electoral arrangements. The bulk of attention will be focused on the national electoral systems of Papua New Guinea (as it relates to Bougainville), Philippines (Mindanao), Bosnia and Herzegovina, Kosovo, Macedonia, Moldova (Gagauzia), Georgia (South Ossetia), and the province wide system in Northern Ireland: how they operate and their consequences for representation of minorities and power-sharing arrangements. Subsequently, I address the impact of electoral administration in these cases. The nature of and independence of the body responsible for running elections and provisions made for returning refugees and displaced persons. II

Electoral Systems and Power-sharing

In any state, consolidated or emerging, an electoral system exists to do three main jobs. First, it will translate the votes cast into seats won in the legislature. The system may give more weight to proportionality between votes cast and seats won, or it may funnel the votes (however fragmented among parties) into a parliament that contains two or three large parties representing more polarized views. Second, electoral systems act as the conduit through which the people can hold their elected representatives accountable. They have the opportunity to punish parties or throw individuals out of power if they displease. Third, electoral systems serve to structure the boundaries of ‘acceptable’ political discourse in different ways, and give incentives for those competing for power to couch their appeals to the electorate in distinct ways. But the effects of any electoral system – especially in systems of complex power-sharing – are conditioned by the matrix of accommodations and incentives beholden within the other institutions that combine to make the democratic patchwork of the state. Just as in medicine, in constitutional design it is counterproductive to treat a specific ailment (such as non-functioning elections) while failing to engage in a broader diagnosis that seeks to treat the patient as a whole (i.e., addressing where power lies, the viability of the judiciary, etc.). Distinct institutional prescriptions can work against each other in a harmful way (and exacerbate the illness) if the treatment regimen is not complimentary for the whole. In medicine, one drug may react with another and retard the patient’s progress, or the treatment of one ailment may create new problems in other parts of the body. In democratic design, especially in instances of complex power-sharing, a seemingly inventive electoral system may combine with a power-laden presidential executive to shut large minorities out of all access to power. When the web of political institutions do not work in concert together, pull in the same direction, one can end up in a situation where political measures, which when taken individually seem appropriate and positive, combine to produce an outcome far less than the sum of their parts and in actuality make the situation worse than it may

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have been without intervention. Holistic interpretations of political institutions are somewhat akin to the notion of complementarities between institutions that shape the political economy of a state. Hall and Gingerich (2001) define an institution as complimentary to another when “its presence raises the returns available from the other.” When it comes to institutions that combine to form complex power-sharing structures, one might broaden that conception of holistic to where the matrix raises the sum benefit and precludes a negative loss in outcome when institutions interact. III Functions of Electoral Systems in Divided Societies Within post-conflict societies, where institutions are as much about peace settlements between conflictual groups as they are about democratic processes, then the electoral system takes on three highlighted roles. First, they provide the chief building blocks of power-sharing. The electoral system needs to facilitate a diverse legislature through which the representatives of majorities and minorities can operate power-sharing, vetoes, and resource allocation. This is especially true of consociational structures, which are often focused on the allocation and sharing of legislative power: that power is shared between the parties that make it into parliament. If the electoral system does not allow for the presence of the salient groups within the representative legislature then power-sharing can still take place but it would be non-democratic and of a very different type to what we aspire to when we imagine successful complex power-sharing arrangements. Second, a related point, is that the electoral system in a divided society needs to produce a parliament that is ‘descriptively representative’, sufficient to reassure minorities that their voices are being respected. The inclusion of the diversity of majorities and minorities within legislatures can reduce group alienation and violence in those divided societies where politics is often viewed as a win or lose game. Many peace settlements since 1990 have revolved around reserved seats for communal groups as part of broader power-sharing constructs. Others, such as South Africa, have shown that the descriptive representation of alienated minorities within a representative political system helps to mitigate anti-system violence and engenders an air of cooperation Last, there is the question of whether the system can be crafted to encourage political elites to behave in an accommodatory way come election time. In terms of deeply ethnically-divided societies, for example, where ethnicity represents a fundamental political cleavage, particular electoral systems can reward candidates and parties who act in a cooperative, accommodatory manner to rival groups; or they can punish these candidates and instead reward those who appeal only to their own ethnic group. However, the ‘spin’ that an electoral system gives to the system is ultimately contextual and will depend on the specific cleavages and divisions within any given society.

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IV Methods for Achieving Those Goals At the legislative level, different electoral systems help fulfill the functions outlined above in a variety of ways. Unfortunately, it is rare that any one system fulfills all the needs of democratization, conflict management, and representativeness. However, providing the building blocks of executive and legislative power sharing – i.e., producing a diverse and inclusive multi-party legislature that reflects the array of majority and minority groups within society – is best facilitated by those systems classified as proportional. On one base level, closed party list systems with low thresholds for legislative entry allow for even the smallest groups to gain some representation and for party bosses to control and select their parliamentary caucus members. Consociationalists argue that what is lost to legislative detachment at the individual MP level is gained by the creation of cohesive and stable partisan party units, which are the component units of a functioning power-sharing dispensation. Open lists, which allow some scope for voters to re-order the party list presented to them on the ballot, may enhance voter choice (and indeed democracy) but they retard some of the ability for ‘manufactured’ diversity in the legislature. The difference between Kosovo’s municipal and state-wide elections is demonstrative. Kosovo’s municipal elections (held before the Assembly elections) were conducted with ‘open’ lists. The UN administrators judged that these elections were marked by voter confusion, the undue ‘personalization of politics’, and the suppression of gender diversity through the pushing down of female candidates on the party lists. Thus, for the following assembly elections, the system was changed to one of closed party lists. Bosnia moved the other way – changing from closed to open lists for their elections of October 2002. Mixed Member Proportional (MMP) systems, as used in Germany and New Zealand, also facilitate the proportionality required for power-sharing systems but they use single member districts to select half to two thirds of the MPs. Parallel systems (as used in Macedonia, Georgia, and the Philippines) reduce the ‘mirroring’ of ethnic and partisan diversity by only allowing for some of the legislators to be elected by proportional means. Under any type of proportional system, the nationally imposed threshold of representation is going to effect deeply the legislative system and propensity for fully blown power-sharing. If the threshold is set at say 5% then minorities smaller than that figure will be shut out of the legislature and thus the more formal political aspects of power-sharing arrangements. An alternative (or supplement) to PR electoral systems to provide the basis for power-sharing are reserved seats for identified communities and/or the deliberate over-representation of geographical areas where minority communities dominate. Historically, the practice of seat reservation, or gerrymandering for distinct communal groups, has long existed. The recognition and desire for some degree of descriptive representation is not a new thing – nor is it a construct unencumbered by past misuse. Manipulating the electoral system to produce descriptive representation can take at least four forms: communal rolls, reserved seats, race conscious districting, and the over-representation of given geographical areas.

14  Electoral Arrangements in Systems of Complex Power-sharing

Our eight cases demonstrate most prominently elements of the first two of these strategies. Bosnia and Herzegovina in effect uses communal roles in the way that it separates and segments ethnic groups into voting blocks. The Dayton accords, signed in November 1995, finally brought a type of closure to the civil war that had raged throughout the territory of the former Yugoslavia since 1992, costing over 100,000 lives and the violent expulsion of over half of the Bosnian population from their homes. But the hopes for peace born in Dayton, Ohio came at the cost of political structures, which did all they could to separate, segment, delimit, and ultimately make all politics in Bosnia about ethnic identity and political-physical separation. Virtually no space was left for the evolution of moderate multiethnic parties that might sow the seeds of a return to shared nationhood in the Balkans. The Dayton accords divided Bosnia into two entities. The Federation (Bosniacs and Croats), comprising 51% of the land, and the Republika Srpska, comprising the rest. The national parliament has an upper house with five members from each of the three ethnic groups, while the lower house has twenty-eight members elected from the Federation and fourteen from the Serb Republic. Each community has an effective legislative veto over any matter they choose to delegate “destructive of a vital interest.” There is balancing at almost every level of government but it is rooted in ethnic identity and segmentation – elections are, by design, ethnic censuses in Bosnia. This vulgar, identity-freezing form of consociation may well have been necessary to get signatures on paper in Dayton and to stem the blood-letting in Bosnia. But the preoccupation with short term fixes has meant that longer term integration and democratic consolidation is a much bleaker prospect. The institutions gave little incentive to parties to moderate their ethnically-based appeals or work together once elected. Elections in 1996 and 1999 were unsurprisingly characterized by the sight of all major parties crafting appeals on the basis of hostile and polarizing notions of ethnic community and difference. The elections of 2002 actually saw a swing to even more extreme nationalist parties in both the Bosniak and Serb entities. The strategy of reserving seats for minorities to ensure their presence in national parliaments can have more of a peripheral impact on democratization but nevertheless remains an important symbol of inclusion (if not acceptance). Most dramatically, ten seats in the parliament of Kosovo are reserved for SerbKosovans, which, along with the twelve seats the Serb party (KP) was able to win in general competition, meant that Serbs won twenty-two seats in the 120 member assembly – 18.3%. The Serb minority is estimated as being 5.9% of the total population. As Table 1 shows, seats were also reserved for the Roma, Ashkali, Egyptians, Bosniaks, Turks, and a Gorani. Unfortunately, communal and reserved seats usually rest upon someone’s predetermined view of who, and how large, the various social groups are and this can create a rigid and illiberal foundation that retards the growth of non-ascriptive cross-cutting political movements. Even the Northern Irish Assembly, which does not pre-determine voters, does require parliamentarians to identify them-

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selves for voting purposes as Unionist/Protestant, Nationalist/Catholic, or nonaligned. The key conundrum inherent within pre-determination is how to choose which groups are awarded seats or are recognized as eligible for special treatment. What are the building blocks for the power-sharing settlement and who has (or needs) special rights? Do ethnic groups have to be small and oppressed or can they be small and powerful, and what constitutes a clearly defined ethnic group anyway? In Kosovo, Egyptians made claims that they should be treated on a par with minority Serbs. Pre-determination also excludes the recognition of groups that are less visibly identified as ‘groups’; communities of interest, which may still be identity based but are not classically envisioned ethnic groups. Communities linked by sexual politics, gender issues, youth or aged issues are almost never included as valid building blocks of a polity. The dangers of precluding non-ethnic identities for ‘special recognition’ was demonstrated by farcical scenes in Northern Ireland in November 2001 when three members of the non-sectarian Alliance Party of Northern Ireland had to re-designate themselves as ‘Unionists’ in order to ensure the election of David Trimble as First Minister and the continuation of the Assembly. Lastly, pre-defined communal groups and fixed reserved seats are not open to the inevitable flux in numbers of majority and minorities in nation states. Rarely are there clauses in electoral acts for the periodic review of the minority group size and its related number of reserved seats. When it comes to the question of encouraging political elites to behave in moderate and accommodatory ways, it has been argued that preference voting crafts incentives for parties to appeal to the lower order preference votes of voters from other communities (see Horowitz 1985; Reilly 2002). Preference voting in single member districts is known as the alternative vote (AV) and requires a high degree of intermixing of polarized ethnic groups for its electoral levers to kick in. Preference voting in multi-member districts (as used in Northern Ireland) is the Single Transferable Vote (STV). STV produces a more proportionate outcome (thus facilitating consociationalism) but it lessens the incentives for multiethnic vote pooling or the development of cross-cutting electoral coalitions when compared to AV in an optimum demographic context. At the executive level – if there is to be a directly elected chief executive/president – there are a few institutional strategies for encouraging accommodating and moderate leaders less beholden to ethnic chauvinisms or hostilities. First is to require an absolutely majority system – either the French style run-off or the alternative vote as used in Sri Lanka – to ensure that no single candidate/ethnic group can win with a minority of the popular vote. Alternatively, one can impose a super-majority requirement, where the winning candidate must win, not merely a national majority, but surmount a threshold in all regions of the country (as in Nigeria and Kenya). Unfortunately, the prospects for these innovative methods are beholden to the demographic realities of the country in question. In order to elect a president beholden to inclusive nation-building, rather than ethnically divisive exclusion, no one group can be in the absolute majority if the voting rule is preferential (in Sri Lanka, lower preferences have never been needed). Super-

14  Electoral Arrangements in Systems of Complex Power-sharing

majority distributional formulas, in theory, better ensure that the president has multiethnic support, but, in reality, they have proved less than successful when used in Kenya and Nigeria. V

Descriptive Overview of Electoral Systems in the Cases

A

Legislatures

At the legislative (state-wide) level, five of our eight cases use PR systems (four list, one single transferable vote), while two use parallel systems (Macedonia switched from a parallel to a list PR system in 2002). Only Papua New Guinea, of our cases of complex power-sharing, uses a majoritarian first past the post system. There is a degree of variation within both the list PR and parallel systems used. All bar one used closed lists (Bosnia changed to open lists for their election of October 2002) but Kosovo and Moldova elect their MPs from very large national districts (100 and 101 members in size, respectively) while Macedonia and Georgia split their districts into much smaller entities (of 20 and 5-24 members, respectively). The smaller districts make it more difficult for tiny nationally diffused parties to win representation but do favour more geographically concentrated parties or candidates. The threshold for representation varies from 7% in Georgia to no legally imposed threshold in Bosnia and Kosovo. The parallel systems of Georgia and the Philippines (and the system used in 2001 in Macedonia) vary even more dramatically. The proportional element in the Philippines and Georgia dominates (80% and 64%) while it was a much smaller aspect of the 2001 Macedonian system (only 29% were elected from party lists). In the single member districts, the Philippines use first past the post while Georgia and Macedonia use the two round run off system.

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Table 1 Electoral Systems (Legislative) Assembly size

Electoral System

List

District Magnitude

Northern Ireland Bougainville (PNG) Mindanao (Philippines)

108

STV (PR)

Open

6 x 18

Threshold Reserved/ Communal Seats None

(??) 109

FPTP

-

1

-

None

(??) 260

Parallel

Closed

1 x 208 52 x 1

2%

None

Bosnia and Herzegovina Kosovo

42

List PR

Closed

1 x 14 1 x 28

-

120

List PR

Closed

1 x 100 1 x 20

-

101 120

List PR Parallel

Closed Closed

101 1 x 85 35 x 1

4% 5%

14 Serb 14 Bosniak 14 Croat 10 Serbs 4 Roma/ Ashkali/ Egyptian 3 Bosniak 2 Turks 1 Gorani None None

120

List PR

Closed

20 x 6

5%

None

235

Parallel

Closed

10 x 5-24 85 x 1

7%

12 Abkhazia

Moldova Macedonia 2001 Macedonia 2002 Georgia

B

Sub-national Bodies

Four of the cases contain representative bodies elected from sub-national component parts of the state and these legislative entities are, or have the capacity to become, important parts of the power-sharing structures. It should be noted, however, that the ‘People’s Assembly’ of Abkhazia is not recognized by Georgia or any international bodies. Interestingly, the three sub-national bodies not previously discussed all revert to majoritarian electoral systems. This makes intuitive sense on a couple of levels: first, the geographical areas are much smaller and place more of a primacy on village/town/ward representation; and, second, the pressures for inclusivity of majorities and minorities becomes less of an issue

14  Electoral Arrangements in Systems of Complex Power-sharing

as these bodies specifically serve the minority enclaves. Perhaps the most interesting proposed regional body is the Autonomous Region of Muslim Mindanao (ARMM) in the Philippines, which in fact covers approximately 15% of Mindanao. The proposed ARMM has twenty-four members drawn from eight, three member districts, along with ‘sectoral’ representatives from agriculture, labour, urban poor, the disabled, youth, women, and indigenous cultural communities, who can constitute up to 15% of the regularly elected members. Table 2 Electoral Systems (Sub-national Territorial Bodies) Assembly Size Northern Ireland

108

Electoral System STV (PR)

ARMM (Philippines)

24?

List?

3x8

Gagauzia (Moldova) Abkhazia (Georgia)

??

TRS

1

35

TRS

1

C

District Magnitude 6 x 18

Executives

In Northern Ireland, Kosovo, and Papua New Guinea, executives are chosen by democratically elected legislatures although the powers of each prime minister/ first minister/president vary considerably. In Bosnia, there is a three person national presidency, with the election compartmentalized by ethnic group: Serbs elect the Serb member, Croats elect the Croat, and Bosniaks the Bosniak. This method clearly gives the least space for the building of multiethnic coalitions of interest (as encouraged by preference voting or distribution requirement systems) but does provide a solid segmental block of elites for consociationalism. Four of the cases have directly elected presidents – Georgia, Macedonia, Moldova, and the Philippines. The first three use a two round majority run off system while the Philippines simply use a plurality method. Ironically, the East European cases have not needed the run off requirement (presidential candidates winning by well over 50% on the first round in each case) while the Philippines might have been well served by an absolute majority system, with Presidents Ramos and Estrada having weak legitimacy after winning with 23.6% and 39.9% in 1992 and 1998, respectively.

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Table 3 Electoral Systems (Executive)

Northern Ireland Bougainville (PNG) Mindanao (Philippines) Bosnia and Herzegovina Kosovo Moldova Macedonia Georgia

Executive type

Electoral System

Further procedure -

Concur- Term of rent? office

Parliamentary/ First & Second Minister Parliamentary

-

-

-

-

Presidential

Leaders of largest party within each community Chosen by legis- lature Plurality -

no

6

Presidential 3 member Parliamentary/ Presidential Presidential Presidential Presidential

Plurality (within community) Chosen by legislature Majority Majority Majority

-

yes

4

-

-

-

Runoff Runoff Runoff

no no no

4 5 5

VI Consequences of Electoral Systems Conventional wisdom asserts that the two most important areas where the electoral system is believed to have major determinant power are the degree of disproportionality (ID) that the system produces between the votes won by parties and the seats they win, and the number and respective strengths of parties in legislatures (Effective Number of Parliamentary Parties (ENPP)). In fact, party fragmentation is itself in part determined by the disproportionality of the system and thus these variables are often collapsed together with party fragmentation becoming the focal point. Maurice Duverger was the first in a long line of institutionalists to seize on “the electoral system’s permissiveness to small party representation” as the chief explanation of fragmentation (Taagepera 1999: 531). To summarize Duverger’s oft-repeated propositions: (1) PR tends to a system of multiple, rigid and independent parties; (2) the majority second ballot system [tends to] a system of multiple, flexible and independent parties; (3) the majority [plurality] single ballot system [tends to] party dualism (Duverger 1954).

In the 1980s, Powell (1984) introduced another explanatory variable when it came to the number of parties produced – that of social heterogeneity or fragmentation. That is, it was not merely electoral systems alone that determined party system structure, but rather the ethnic, linguistic, religious, or regional-cultural divisors of any given society. Powell used an additive measure of electoral system and social heterogeneity factors to explain the effective number of political parties; later work by Ordeshook and Shetsova (1994) and Amorim Neto and Cox

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(1997) found that an interaction term of the two variables was more powerful. The interplay between societal and institutional variables was found to be the driver of heterogeneity. Taagepera articulates the state of current wisdom: Low heterogeneity puts a lid on the number of parties even in the presence of a very permissive electoral system, because there will be no demand for many parties. Similarly, a low magnitude (single member districts [FPTP]) tends to put a lid on the number of parties even in the presence of strong heterogeneity, because few parties can gain representation. This mutual limitation can be obtained by multiplying the two effects, but not by adding them. (1999: 535).

However, when we look at the indicators of electoral system consequences in Table 4, it is marked how little our eight cases follow the expected patterns of electoral system consequences. There is no obvious electoral system effect in translating votes into seats or determining the type of party system that emerges. The first to fall is Duverger’s law, as the effective number of parliamentary parties in our eight cases flies counter to what we would expect. Papua New Guinea has the most fragmented party system despite its first past the post system, while Moldova has the least fragmented system despite its large district closed list PR system. On average, the three parallel cases have an ENPP of 3.6, the four list PR cases 3.9, Northern Ireland’s STV 5.5, and PNG’s FPTP 8.8. The eight cases also fail to follow the rules of disproportionality. While the list PR cases are marginally more proportional than the FPTP case, STV produces the most proportional outcome and the Parallel cases demonstrate the highest degrees of disproportionality, with Macedonia in 1998 being extremely disproportional. One would also expect the largest/dominant parties to be found in majoritarian (FPTP) or semi-PR (Parallel) systems and the smallest ‘largest’ parties to occur in PR systems (List and STV). But in our cases we find that the largest parliamentary party in PNG is only 17.4% and list and parallel systems average largest parties that constitute 47% of the legislature. When it comes to the representation of women, the electoral systems do appear to have exerted influence in more expected ways. There is a multitude of evidence to show that list PR systems best facilitate the election of women, and prospects are enhanced further if some type of gender quota is applied as well (see Reynolds 1999). The average number of women elected in our four list PR cases is 19.1% with a high of 28.3% in Kosovo. Kosovo is one of three cases where a gender quota was applied – one out of every three candidates on a party’s list had to be a woman. In Bosnia, the mandate was weakened but still had some effect. One candidate of the under-represented sex had to be included in the first two candidates on the list, two among the first five, three among the first eight candidates. However, the fact that the October 2002 elections were conducted with open lists allowed some male candidates to be pushed above higher placed women. In Macedonia, a minimum of 30% of each sex should be represented on party candidate lists. This led to 18.3% being elected in 2002.

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Table 4 Electoral System Outcomes Electoral ENPP System Northern Ireland STV (PR) 5.5 Bougainville FPTP 8.8 (PNG) Mindanao Parallel 3.3 (Philippines) Bosnia and Her- List PR 6.1 zegovina Kosovo List PR 4.1 Moldova List PR 2.6 Macedonia Parallel 4.0 1998 Macedonia List PR 2.9 2002 Georgia Parallel 3.4 i

ID

Largest

Women

Spoilt

3.4 11.1

25.9 17.4

13.9 0.9

na 1.8i

4.3

40.0

17.8

20.9

5.9

23.8

16.7

na

7.5 9.3 27.8

39.7 76.2 47.5

28.3 12.9 6.7

2.5 2.5 na

10.4

49.2

18.3

1.8

14.0

55.3

7.2

na

From 1982.

NB: Electoral System = see Reynolds and Reilly 1997. Women = % of assembly, last election. Largest = seat share of largest party. ID = Gallagher’s Least Squares Index of Disproportionality. ENPP = Effective Number of Parliamentary Parties. Largest = Largest party (seat share) last election. Spoilt = Spoilt ballot rate last election. Na = not available. Data: Northern Ireland 1998, Philippines 1995 and 1998, PNG 1977-1997, Moldova 1994 and 1998, Georgia 1995 and 1999, Kosovo 2001, Bosnia 1996, 1998, and 2002.

These indicators demonstrate that our cases of complex power-sharing are embryonic multi-party polities where the pressures of institutional arrangements have not yet outweighed the social rigidity of deeply divided societies. The sociopolitical historical pressures within our eight cases are overwhelming the marginal incentives that electoral systems can place on voter behaviour. Political or ethnic tribalism overwhelms the incentives for strategic voting, and the parties that might have fragmented under list PR systems retain enough glue to keep themselves whole – at least for the time being. There is a temporal aspect to electoral system consequences and it may be decades before their real effects on party development are apparent. When it comes to the more psychological, and less mechanical, effects of electoral systems – i.e., the ‘spin’ they impart on campaigning and voter behaviour – the cases of Northern Ireland (preferential voting-STV), Bosnia (segmented closed lists), Papua New Guinea (a history of preferential voting-AV and FPTP), and Kosovo (PR with reserved seats) are demonstrative in their various effects. Preference voting STV was introduced in the 1970s in Northern Ireland precisely

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because it both combined proportionality in outcomes with incentives for parties to appeal outside of their own exclusive community for the lower preferences of other voters. Thus, the system was intended to encourage moderation, interethnic bridge-building and create the space for cross-cutting parties to emerge. However, in 1973 and 1982, the system failed to produce cross-community parties, moderated ethnic parties, or vote-pooling between Protestant and Catholics. Dixon estimates that only one quarter of 1% of all vote transfers crossed the divide in 1973 (see Dixon 1997). This pattern of centrifugal political forces pushing parties to the extremes was repeated in 1982. But for the first time in the Northern Irish Assembly elections of 1998 STV appeared to engineer, or at least facilitate, some of the positive elements of moderation that were hoped for. This time, transfers were far more apparent among pro-agreement parties, and the major parties (including the UIP and Sinn Fein) were encouraged to moderate their stances to appeal for lower order votes from both their own communities and the other. Indeed, the UUP received a significant ‘seat bonus’ through transfers by winning 26% of the seats with only 21 % of the votes. O’Leary argues that the 1998 Assembly initially succeeded because STV, and its capacity for the expression and effect of lower order preferences, reduced the number of seats won by ‘anti-agreement’ parties such as the DUP (see O’Leary 2002a: 313). Papua New Guinea also provides a fascinating case study of the psychological effects of electoral systems because of its switch from preference voting in single member districts (AV) used for three pre-independence elections, to classic FPTP used since independence in 1975. While the system had little observable effect on the growth or ebbing of secessionist fervour in Bougainville, it did have an impact on interethnic accommodation and hostility in the state as a whole. Reilly (2001) provides evidence that the use of AV between 1964 and 1975 encouraged a degree of party building, moderation, and cross-ethnic alliances, which fostered the fledgling party system and lessened the excesses of polarizing elections in such a highly socially fragmented polity. The “standard practice was to cast a first preference for a local clan candidate, and then a second preference for a knowledgeable outsider” and “candidates who managed to establish broad, cross-tribal support bases increasingly utilized the mechanics of preference distribution to defeat opponents who would have easily won a FPTP contest” (Reilly 2001: 70, 76). When AV was replaced by FPTP upon independence, it removed incentives for interethnic alliances, led to rising levels of violence at election time and ‘dummy candidates’ solely on the ballot as spoilers to split the vote. Reilly goes as far as to argue that traditional divisions between clans have been reformulated and reinforced by FPTP (Reilly 2001: 81-88). Both Kosovo and Bosnia make use of closed list PR electoral systems, but their respective adaptations of the system provide somewhat different psychological impacts upon the development of each state’s party systems. In Kosovo, the twenty seats reserved for Serbs and other minorities (along with those communities ability to win a share of the open seats) engineer a dramatic over-representation of the Serb catch all party and make it much more difficult for Albanian

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parties to seize a working majority of the legislature. There was never likely to be much enthusiasm for cross-ethnic voting, but the list PR system encouraged the fragmentation of the majority Albanian ethnic vote and the consolidation of the threatened Serbian minority vote. Campaigning behaviour was also impacted by the shift from an open list system (in the municipal elections) to a closed list system for the Assembly elections, which strengthened central party organizations and suppressed some of the personalization inherent in the campaigning at the municipal level. It might be argued that one of the failures of the Kosovo system was that it created a climate that froze ethnic loyalties, while at the same time providing the space for the fragmentation of the Albanian vote and thus the party system as a whole. However, it is difficult to see how Serb minority interests could have been assuaged through any system that did not over-represent them both in the executive and the legislature. As noted earlier, Bosnia’s adaptation of the list PR system was less about the over-representation of minorities and more about the segmentation of communities into separate voting blocks. Thus, there is no space for multiethnic movements to grow, and each ethnic group is corralled into an electoral fight between moderates and extremists. Electoral systems are an important part of complex power-sharing arrangements but their role is contingent on the type of socio-political division present. National electoral system design matters more in cases of geographical interspersion or balance and a little less in cases where the minority is heavily concentrated in a given area and their needs can be better addressed through autonomies or secession. Thus, elections and national representation matter more in Northern Ireland, Bosnia, Kosovo, and Macedonia than say in Bougainville/PNG, Mindanao/Philippines, Gagauzia/Moldova, and South Ossetia/Georgia. For obvious reasons the hard edge of power sharing in cases like Bougainville, Mindanao, Gagauzia, and South Ossetia exists in arrangements for autonomy and self-government in those specific regions and by specific ethnicities. The reassurance of minority access is not focused on national decision-making structures but rather local separations from the dictates of the national majority. VII The Importance of Electoral Administration It has taken a while, but academics are finally beginning to wake up to a realization that struck many policy makers and NGOs a decade before, i.e., that the quality of electoral administration has a direct impact on the way in which elections in the developing world and their outcomes are regarded, not merely by international observers, but also – and more importantly – by domestic actors such as voters, parties, media, and local observers. The administration of the vote, its competence and independence, dramatically impacts the public view of election results and the legitimacy of governments that are produced. This is particularly true in divided multiethnic societies clawing their way towards stability and democracy. Our eight cases represent a wide variety of approaches to running elections – and demonstrate varying degrees of success. Northern Irish elections are administered (as in the rest of Britain) by the civil service wing of government.

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However, the long serving Chief Electoral Officer of Northern Ireland Pat Bradley, a Catholic from Derry, is one of the most broadly respected electoral officers in the world and his organization is praised on all sides for its efficiency and independence. Similarly, the government of Papua New Guinea appoints an electoral commission, and despite potential charges of bias this body is also widely respected for its fairness (see Reilly 2002). The East European cases of Moldova, Georgia, and Macedonia have appointed electoral commissions – and, in the case of Georgia members appointed by majority and minority parties, but these commissions have fared less well in issues of competence and the perception of fairness. The Philippines Electoral Commission is popularly elected, but again their success in crafting a level playing field and managing to run elections free of ballot rigging and intimidation has been decidedly mixed. Perhaps the most interesting cases of the impact of electoral administration of the building of democratic legitimacy come in the two post-conflict former Yugoslav states. In Bosnia and Kosovo, elections were initially run by the OSCE and United Nations – a domestic elections commission was set up for the Bosnian elections of 2002. However, despite foreign ownership of the process, elections proved to be far from legitimate in Bosnia in the 1990s. As Elklit and Svensson note, before and on polling day, many freedoms were grossly violated, among them freedom of movement, voter registration, freedom of speech, media access and the freedom to vote. While by and large polling was smooth at the counting stage “rumors of fraud began to circulate.” (Elklit and Svensson 1997: 44).

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Table 5 Organizational Context of Elections Northern Ireland Bougainville (PNG) Mindanao (Philippines)

Responsibility Northern Irish Office, UK Electoral Commission Commission on Elections

Bosnia and Herzegovina

OSCE

Bosnia and Herzegovina 2002 Kosovo

Electoral Commission

Moldova

Electoral Commission

Macedonia

Electoral Commission

Georgia

Electoral Commission

UN

Selection Government Appointees Government Appointees Elected

Reputation Independent/ Competent Independent/ Competent Independent/ Semi-competent OSCE Appoin- Semi-indepentees dent Semi-competent Parliament/ Independent Government Semi-compeAppointees tent UN Appointees Semi-independent Semi-competent Parliament/ Government Appointees Government Semi-indepenAppointees dent Semi-competent Parliament – Majority & Minority

Observers Domestic Commonwealth Domestic Domestic and International Domestic and International Domestic and International Domestic and International Domestic and International Domestic and OSCE

Chapter 15 Third-party Involvement in Self-determination Conflicts Ulrich Schneckener

I

The International Dimension of Self-determination Conflicts

Self-determination or separatist conflicts have implications for international politics in at least two ways. They challenge international norms and they aim to change international borders. Separatism points to the inherent tension between the territorial integrity and sovereignty of states, both granted by the Charter of the United Nations, and the right to self-determination, as enshrined, for example, in the International Covenant on Civil and Political Rights. Furthermore, the international community of states is deeply concerned about any attempt to change borders, as it often endangers the stability of a region and may be regarded as a threat to international peace. Self-determination conflicts raise a set of legal, political, economic, and security issues that go far beyond the local struggle between a central government and a separatist movement – they are by no means a purely internal affair. In terms of actors, self-determination conflicts can also no longer be adequately described as internal or civil wars. In fact, they are highly internationalized. Since the early 1990s, we can observe an increasing number of external actors and the spread of all kinds of cross-border activities. In order to reflect this development, new labels have been coined: “wars of the third kind” (Holsti 1996), “new wars” (Kaldor 1999); or “network wars” (Duffield 2001). They all refer, inter alia, to the fact that these conflicts are characterized by the involvement of a large number of external actors that often affect the level of violence and the strategies of warfare. At least three different types of external actors can be distinguished: allies, spoilers, and third parties. First, secessionist groups and central governments as the key conflicting parties themselves maintain cross-border contacts with external allies in order to strengthen their political position as well as their military potential. Often, kin states or powerful diaspora communities provide secessionists with military assistance, economic aid, and/or political backing. Examples are Serbia in the case of the Bosnian Serbs, the Albanian diaspora in Western Europe and North Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 467-499

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America in the case of Kosovo, or the American-Irish community in the case of Northern Ireland. Sometimes also non-kin actors – such as neighbouring states, great powers, or non-state actors – are willing and able to support one of the warring sides (e.g., Arab sponsorship for the Palestinians, US support for Israel). Second, due to the armed conflict and the collapse of public order, various external actors are able to cross borders and to exploit the situation for their own purposes and profits without being necessarily invited by any local actor. They have an interest in keeping the conflict alive, insofar as they work as spoilers from outside who have no interest in any kind of settlement. They often link themselves to one of the parties or to fringe groups, most often local warlords, terrorists, or criminals. In some cases, they may even control these local groups. Examples here are trans-national criminal networks that use continuing conflicts for all kinds of illegal activities, such as the smuggling of weapons, drug dealing, or trafficking of women (Bosnia, Kosovo, Macedonia, Moldova, Georgia, Colombia), international terrorists who seek safe havens or financial resources (Georgia, Afghanistan, Philippines, Indonesia, Bosnia), or states or trans-national companies who have major economic interests, in particular in cases of easily accessible natural resources (Angola, Congo, Liberia, Sierra Leone, or, to a lesser extent, Bougainville). Third, in many cases external actors engage in order to achieve conflict resolution. Over the past fifteen years, most peace agreements have been brokered and/ or have been implemented with the assistance of third parties. Their intervention often proved to be crucial in managing and settling self-determination conflicts. A whole range of actors may function as third parties, notably international organizations or multilateral fora, but also other states, international NGOs, or wellrespected individuals (e.g., former statesmen). This chapter focuses on this third category of international involvement. However, it should be noted that the behaviour of the other two types of external actors is of great importance when it comes to conflict resolution. Thus, third parties will not only have to deal with the local conflicting parties, but also with any external allies or spoilers. The focus is also on secessionist conflicts that have been settled by complex power-sharing regimes and not by the change of international borders. There are basically two reasons why the international community engages in such conflicts. First, obviously, the key parties involved – usually a central government and a secessionist movement – are unable to solve their disputes in a non-violent way and need help in various forms. Second, the international community itself is still very reluctant to accept and recognize self-determination claims and therefore has an interest in preventing secession or the dissolution of states by favouring some kind of internal solution, such as powersharing arrangements. As a result, one can observe an increasing number of cases where international actors play a vital role in achieving and maintaining power-sharing structures. By contrast, prominent cases of successful or failed power-sharing of the past, such as Switzerland, Belgium, the Netherlands, South Tyrol, Northern Ireland (1973), Lebanon, Malaysia, or post-Apartheid South Africa are not characterized

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by an international dimension – the only notable exception being the 1960 Cyprus solution, which was essentially brokered by the United Kingdom, Turkey, and Greece and which later led to UN intervention. Consequently, the classic literature on power-sharing or consociationalism hardly reflects the influence of external actors. This chapter tries to fill this gap. The key questions therefore are: what are the different types of third party involvement? What is the role of international actors in settling self-determination conflicts and implementing power-sharing arrangements? Under which conditions can third parties have a positive impact in making power-sharing settlements work? Accordingly, the paper is subdivided into three sections: first, it will clarify more broadly the concept of third party involvement and distinguish various types of that involvement. Second, it aims to identify the specific activities and mechanisms of third party involvement found in the eight case studies. Third, based on this empirical experience, the chapter discusses some factors that may determine positive or negative outcomes. II

Concept and Typology of Third Party Involvement

Third party involvement in self-determination conflicts concerns the role played by one or more external actors who are willing and able to assist local parties in conflict resolution. A third party is, by definition, not a party to the conflict, but an outsider who aims to solve the conflict via fair negotiations and agreements and not by the victory of one side over the other. A third party has to be acceptable to the relevant local actors (not necessarily to each and every fringe group) and should be perceived as impartial. A third party, however, is not necessarily neutral with regard to principles, procedures, and sometimes even outcomes (e.g. non-acceptance of secession). Thus, third party involvement does not exclude the application of pressure on one or both sides, including sanctions or the use of force, in order to bring the parties to the negotiation table. Finally, a third party can act in a formal or informal capacity; it can be invited by local actors or can engage without invitation, but, for example, on behalf of the UN Security Council or a regional organization. Clearly, the nature of the third party as well as the range of activities at its disposal differ from case to case. Nevertheless, it is possible to distinguish three categories of actors who may function as third parties:

 



See particularly Nordlinger 1972; McRae 1974; Lijphart 1977. Lijphart (1977: 67-68) referred only to the possible effect of external threats and international conflicts in unifying or antagonizing plural societies. One classic definition of a third party comes from Young (1967: 34, quoted in Bercovitch 2002: 6). He defined a third party as “an actor that is not a direct party to the crisis, that is designed to reduce or remove one or more of the problems of the bargaining relationship, and therefore to facilitate the termination of the crisis itself.” Others, however, stress the importance of neutrality for third parties. See Bercovitch 2002: 6-7.

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•

•

•

The first category refers to international organizations (IOs) or multilateral actors such as the UN and its sub-organizations (in particular the UN High Commissioner for Refugees (UNHCR) and UN Development Programme (UNDP)), the World Bank and the International Monetary Fund (IMF), the Organization for Security and Co-operation in Europe (OSCE), the EU and NATO or other regional organizations (e.g., the Organization of African States (OAS), the Organization of the Islamic Conference (OIC), the Arab League, the Gulf Cooperation Council, the Economic Community Of West African States (ECOWAS), or the Association of South East Asian Nations (ASEAN)), but also loose multilateral fora such as the Balkan Stability Pact or the G8 can be included. The second category covers the role of states, be it a single state or an ad hoc coalition of states. A prime example of a state acting as a third party is the USA in various conflicts in the world (e.g. the Middle East, Kashmir, Cyprus, Bosnia, Kosovo, Northern Ireland), but also smaller states such as New Zealand, Switzerland, Sweden, or Norway have often played a significant role in mediating conflicts (e.g., the Oslo Peace Process). Examples of coalitions of states are the Bosnia and Kosovo Contact Group, which both aimed at coordinating the policies of major powers towards these conflicts. Sometimes even kin states may develop a third party-like approach when they move from a partisan stance to a more impartial position. For instance, in the case of Northern Ireland, both Ireland and Great Britain were able to establish a common platform; their joint activities and proposals can therefore be portrayed as third party involvement. The third category includes various kinds of non-state actors, among them international NGOs (e.g., Red Cross, the Quakers, International Alert), private persons (e.g., ‘elder statesmen’), academic institutions and foundations, churches, trade unions, or the business community. Prominent examples are the efforts of the Carter Center in the USA, which has been part of many conflict resolution activities around the globe, the role of Norwegian academics prior to the negotiations of the Oslo Agreement (1993) between Israel and the PLO, the mediation efforts of the Italian brotherhood Saint Egidio in Mozambique or Kosovo, and the role of the Swiss-based Henry Dunant Centre for Humanitarian Dialogue in the Aceh conflict. Another typical non-state actor approach has been the problem-solving workshops conducted by academics and practitioners with local actors that have been used frequently in the case of Cyprus and Israel/Palestine (Kelman 2002).

In reality, one will always see a multiplicity of third parties involved in a single conflict. Often they address different levels (high level, mid level, or grassroots level), issues (political, social, cultural, or economic issues), as well as different local actors (governments, parties, armed groups, civil society, etc.). In most cases, 

Members of the Bosnia Contact Group were the USA, Russia, France, Great Britain, and Germany. The Kosovo Contact Group also included Italy.

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third parties do not only rely on persuasion, but on incentives and disincentives. Incentives are, for example, security guarantees, monitoring and verification of disarmament, support for confidence-building measures, assistance to institutional reforms, humanitarian and development aid, as well as the long-term prospect of advanced economic and political cooperation. Disincentives usually refer to sanctions or military means, but may also include ‘softer’ measures such as human rights monitoring, observer missions, or, more specifically, the establishment of war crimes tribunals. In practice, third parties use a mix of instruments, depending largely on their own capabilities, their political will, and the local situation. However, two types of activities should be distinguished. Firstly, all efforts that aim at achieving an agreement and stopping violent escalation may be termed settlement activities. Secondly, all efforts that aim at securing, observing, implementing, enforcing, and maintaining an agreement may be termed implementation activities – these can include temporary and permanent measures. Both phases can be conducted by the same or by different third parties. The distinctions between actors and activities can now be translated into a typology of third party involvement recognizing six forms of involvement (Table 1). Table 1 Types of Third Party Involvement International organization State(s) Non-state actor(s)

Settlement activities

Implementation activities 1 2 3 4 5 6

This typology will be used to help classify the third party involvement in each of the cases, and to summarize the third party activities seen in these conflicts. A

Northern Ireland

Since the Anglo-Irish Agreement (1985) and the establishment of the Intergovernmental Conference (1985), the British and Irish governments were able to overcome their differences step-by-step and issued various joint declarations and proposals to the local conflict parties (e.g., Downing Street Declaration 1993, Framework Documents 1995) that paved the way for the 1998 Good Friday Agreement. These joint initiatives allowed both governments to go beyond their historical partisan roles. Thus, in cases where they acted together or, at least, agreed upon certain measures, both governments behaved as if they were a third party. (Type 3 in Table 1). In the 1990s, the US government became more and more involved. Although President Carter had already offered his assistance in 1977, it was President Clinton who declared that he would “take a more active role” in the

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Northern Irish conflict (Type 3). The US involvement, however, remained a mixture of direct and indirect measures. From time to time, the US president himself engaged actively (e.g., through phone calls, invitations to Washington, Clinton’s visits to Northern Ireland), but more often the US administration used unofficial envoys such as the Morrison Delegation in 1993–1994 (named after a former US congressman). In a similar way, the former US Senator George Mitchell served as an unofficial channel, but developed a far more independent role that made him acceptable to all parties as the key mediator for the peace talks. He acted, therefore, much more like a non-state actor than an official governmental envoy (Type 5). For the implementation phase, state and non-state actors were again the most relevant (Types 4 and 6): the British and Irish governments remain the key actors, while the USA still plays an important role, in particular in cases of crises. The use of non-state actors such as former foreign politicians and statesmen continued. Mitchell kept his role as mediator, de Chastelain became chairman of the Independent International Commission on Decommissioning (IICD), and later the former Finnish President Martti Ahtisaari and the former South African leader of the African National Congress (ANC) Cyril Ramaphosa were appointed as international observers in order to verify decommissioning of the Irish Republican Army (IRA). Finally, the Independent Commission on Policing, headed by the British Conservative Chris Patten, comprised, inter alia, of international experts. B

Bougainville

During the settlement phase, the key third party role was played by New Zealand and Australia (Type 3), as both took the lead in the so-called ‘Group of Friends’ which also included the Solomon Islands, Vanuatu, and Fiji. They supported the peace negotiations and provided troops for peacekeeping efforts, firstly by the New Zealand-led Truce Monitoring Group (October 1997–April 1998) after a truce between the Papua New Guinea government and the secessionists, and secondly, by the Australia-led Peace Monitoring Force (from April 1998). Furthermore, the final settlement (Bougainville Peace Agreement, September 2001) was facilitated by a small UN observer mission (Type 1), established in August 1998, which co-chaired the peace talks with an Australian commander. Basically, the same actors remain in place for the implementation period (Type 2 and 4). Aus   

Irish Times, 29 October 1992, quoted by Ruane and Todd 1996: 277. The Morrison Delegation mainly put pressure on the Nationalist leadership to denounce the use of violence, but it also paved the way for extending a US visa to Sinn Fein leader Gerry Adams. See McGarry and O’Leary 1996: 330. Mitchell was first appointed as member of the International Body on Arms (so-called Mitchell Commission), together with the Canadian General John de Chastelain and the former Finnish Prime Minister Harri Hokeri (since 1995). For international involvement in Northern Ireland, see McGarry and O’Leary 1996; Ruane and Todd 1996: 266-289.

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tralia remains largely responsible for peacekeeping, while the UN has a formal role in monitoring decommissioning. In addition, various development agencies (New Zealand Official Development Assistance (NZODA), Australian Agency for International Development (AusAID), UNDP) and other multilateral donors (World Bank, IMF, Asian Development Bank) became engaged in Bougainville, often in cooperation with numerous international NGOs, mainly from Australia (Type 6). C

Mindanao

When compared to the other case studies, Mindanao is characterized by only having seen low-level international involvement. For both settlement and implementation, the Organization of the Islamic Conference (OIC) can be identified as the main third party (Type 1 and 2). As early as 1972, the OIC expressed its concerns with the conflict, and in 1976, the OIC brokered the Tripoli Agreement between the government and the Moro National Liberation Front (MNLF), the largest secessionist movement. Again, in 1992-1993 and in 1996, the OIC assisted peace talks and follow-up agreements in order to establish a functioning autonomous Muslim region in the Southern Philippines. In the 1996 agreement, the OIC got a special role in sending representatives to the Joint Monitoring Committee, which should review the implementation process. Moreover, via the OIC, various states got involved (Type 3). In the 1970s, Libya played a key role, followed by Indonesia in the 1990s, and by Malaysia since 2001. However, until now, all efforts by third parties to settle the conflict and to implement the existing agreements have not succeeded.10 D

Bosnia

From the beginning of the war in Bosnia in 1992, the degree of international involvement and the number of third parties involved was extremely high. The international community, in particular the EU and UN, launched various peace initiatives to stop the killing and fighting (Type 1). Moreover, the UN got involved on the ground quite early, with peacekeeping and humanitarian activities (UNPROFOR11 I and II, UN safe havens). The first mediation effort was undertaken by the EU (then EC) under the Portuguese presidency (Cultileiro plan in March 1992), followed by joint EU-UN actions (Vance-Owen plan in March 1993 and OwenStoltenberg plan in August 1993). After the failure of these plans, the Bosnian Contact Group and the US government emerged more and more as the central players in achieving a settlement (Type 3). The Contact Group plan (July 1994), the US-sponsored Washington agreement between Croats and Muslims (1994)  10 11

For international involvement in Bougainville, see Smith 2002; Eagles 2002; Regan 2002. For international involvement in Mindanao, see Turner 2003. United Nations Protection Force.

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and, finally, the increased military pressure by NATO can be seen as steps leading towards the Dayton Peace Agreement (DPA) (November 1995), which was largely brokered by the USA.12 For implementing the DPA, international organizations became the main agencies (Type 2). The EU, UN, United Nations High Commissioner for Refugees (UNHCR), NATO, OSCE, and the Council of Europe (particularly via the European Court of Human Rights) each got their own role and responsibility in post-conflict peace-building and establishing a power-sharing structure. Bosnia also became a market place for international NGOs that received funding for civil society activities, for refugee return, for humanitarian aid, for human rights, or for interethnic reconciliation (Type 6).13 However, major Western states, in particular the USA, remain important throughout the implementation process (Type 4) – indirectly by supporting IOs and NGOs, as well as directly by backing moderate and non-nationalist parties.14 E

Kosovo

In the 1990s, the Kosovo issue received some international attention, mainly from the OSCE/CSCE, the USA, and the EU, but this was not sufficient to prevent the conflict from escalating in 1998-1999. During this escalation phase, the activities of the international community to settle the conflict increased substantially. As in the Bosnian case, international organizations and states combined their efforts. Again, the Contact Group served as a key forum for multilateral consultations (Type 1 and 3): international mediators and envoys were appointed (EU, USA, Russia), observers were deployed (OSCE), the UN Security Council issued various resolutions in 1998 and called upon the parties to stop the violence, internationally organized and sponsored negotiations took place and, finally, military force was used (NATO) – to name just the most prominent actions. In ending the war and implementing a political solution, the UN got a much more prominent role than before (Type 2). Following UN Security Council Resolution 1244, the UN established an interim administration (UNMIK), which includes OSCE and EU participation, while NATO was mandated to ensure security (Kosovo Force, KFOR). In addition, many international NGOs established projects on confidence-building, civil society, or human rights (Type 6). Once again, the influence of the USA and other states remains essential for any political progress (Type 4). F

Macedonia

The same multitude of actors can be found with regard to the settlement in Macedonia. Early on, the UN and the OSCE were involved in prevention efforts (Unit12 13 14

For international conflict management in Bosnia, see Gow 1997; Berg and Shoup 1999. For personal accounts of involved mediators, see Owen 1995; Holbrooke 1998. For the role of NGOs in Bosnia, see Belloni 2001. For the implementation of the DPA, see Chandler 1999; Cousens and Carter 2001; Bose 2002; Schneckener 2002a: 290-299.

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ed Nations Preventive Deployment Force/UNPREDEP, OSCE Spillover Mission), and the EU granted financial and economic assistance to the country. When in spring 2001 local fighting between Albanian extremists and the Macedonian security forces started, the EU, NATO, and the USA (Type 1 and 3) became active in facilitating and in mediating the conflict, leading eventually to the Ohrid agreement (August 2001). To a lesser extent than in Bosnia and Kosovo, external actors are involved in the implementation: the EU, NATO, and the OSCE assist and monitor the peace process with a particular emphasis on decommissioning. At the same time, international NGOs continue their efforts in interethnic dialogue or media training, which could serve as a societal basis for power-sharing (Type 2 and 6).15 G

Gagauzia

In comparison to the Balkan cases, international involvement has been rather limited in Gagauzia. For settling the conflict, the OSCE via its Mission to Moldova, the High Commissioner on National Minorities (HCNM), and, to a lesser extent, the Council of Europe (Type 1) proved helpful in making proposals and fostering the dialogue between the Moldovan government and local politicians which finally led to an agreement in 1994. During the implementation process, the same international organizations remained involved (Type 2), the OSCE playing the most important role. Since 2001, a UNDP programme for Gagauzia supplements the external efforts. There are, however, few significant international NGO activities related to the political solution. H

South Ossetia

Third party involvement has been more widespread in South Ossetia, but still much less prominent than in the Balkans. The Eltsin-Shevardnadze agreement in 1992 was mainly achieved by OSCE moderation and Russian pressure (Type 1 and 3). Since then, the Russia-led Joint Peace-Keeping Force (JPKF) provides security in the region. Russia and the OSCE became members of the Joint Control Commission (together with South Ossetia and the Georgian government), which acts de facto as administration for the region until a final solution is found (Type 2 and 4). Moreover, the EU and UNDP (since 1997) started to provide economic and financial assistance, while the UNHCR supports repatriation efforts. In order to foster confidence-building at various levels, international NGOs are active in South Ossetia (Type 6). One prominent example has been the Georgian-South Ossetian Dialogue project (1995-1999) run by the US-based NGO Conflict Management Group and the Norwegian Refugee Council (NRC).

15

For international involvement in Macedonia, see Lund 2000; Daftary 2001; 2003; Schneckener 2003.

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1 Discussion Table 2 summarizes the profiles of the case studies and allows for some interesting observations. First, the highest level of international involvement can be found in the Balkan cases, especially Bosnia and Kosovo. Third parties are less prominent in Bougainville, South Ossetia, and Northern Ireland, while in the cases of Gagauzia and Mindanao, their role has been rather limited or even marginal. Second, the sample of cases is characterized by a dominant role of international organizations (IOs). In all cases, with the notable exception of Northern Ireland, IOs are involved in both settlement and implementation activities, most often as key players. However, from this analysis it seems that IOs are particularly relevant when it comes to implementation. Here they clearly act as lead agencies, responsible for various aspects of establishing a power-sharing system (Bougainville, Bosnia, Kosovo, Macedonia, Gagauzia, South Ossetia). Third, states as third parties have been important in almost all cases for achieving a settlement. In particular, great powers like the USA as well as regional powers (e.g., Australia, Indonesia, Russia, West European states) have proven to be vital when diplomatic or even military pressure was needed to bring the local parties to the negotiation table. States are less prominent when it comes to implementing the power-sharing agreement (only in five out of eight cases), and even then they often play a more secondary, supplementing role and leave the day-to-day business to the mandated IOs (e.g., Kosovo, Bosnia). Fourth, the contribution of non-state actors is primarily in the field of implementation, and they rarely are part of settlement activities. Here, again, the case of Northern Ireland is exceptional. International NGOs are often used during the implementation phase by the leading IOs for various purposes connected with the political solution: provision of expertise, human and minority rights monitoring and education, media training, civil society projects, support and establishment of local NGOs, interethnic or intercommunity dialogue, confidence-building and reconciliation efforts, etc. In other words, they allow the IOs to ‘outsource’ some of their activities. In this respect, some international NGOs cannot be regarded as independent actors. In general, NGOs and other non-state actors tend to focus on grassroots or mid-levels in order to widen public support for peace agreements and power-sharing (bottomup approach), while IOs and states address mainly the leadership, the key decision-makers and the group elites (top-down approach). For that reason, NGOs have been excluded from Table 3, which concentrates on the most relevant third parties for settlement and implementation identified in each case. Nevertheless, as the case of Northern Ireland shows, non-state actors can become a key third party at the top decision-making level, if they are asked by all sides to play that role. In contrast to IOs and states, non-state actors are not able to ‘invite themselves’ – either by offering substantial aid and resources, by resolutions or statements, by diplomatic means, or by the use of pressure.

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Table 2 Profile of the Complex Power-sharing Cases Conflict Northern Ireland Bougainville Mindanao Bosnia Kosovo Macedonia Gagauzia South Ossetia

Types of third-party involvement 1 2 3 X X X X X X X X X X X X X X X X X X X X X

4 X X

5 X

6 X X

X X

X X X

X

X

Table 3 Identified Key Third Parties Conflict Northern Ireland Bougainville Mindanao Bosnia Kosovo Macedonia Gagauzia South Ossetia

Settlement British-Irish initiatives, USA, Mitchell Commission

Implementation British-Irish initiatives, USA, Mitchell, IICD, Patten Commission Australia, New Zealand (Group New Zealand (NZODA), Ausof Friends), UN tralia (AusAID), UN, UNDP OIC, Indonesia, Libya, MaOIC, UNDP laysia EU, UN, USA, Bosnia Contact UN, UNHCR, EU, OSCE, USA, Group, NATO NATO, ECHR NATO, EU, USA, Kosovo Con- UN, UNHCR, EU, OSCE, USA, tact Group, CSCE/OSCE, UN NATO EU, NATO, USA, OSCE, UN EU, NATO, OSCE OSCE, HCNM, Council of OSCE, HCNM, Council of EuEurope rope, UNDP Russia, OSCE Russia, OSCE, EU, UNDP, UNHCR

III Approaches of Third-party Involvement What does third-party involvement look like in practice? What is the contribution of third parties to complex power-sharing regimes? In all cases, the involvement of third parties has been institutionalized in different ways. The third parties have established special bodies, missions, offices, or commissions concerned with the conflict (Table 4), they have deployed civilian as well as military personnel on the ground in order to end violence, to control a ceasefire, to assist implementation, etc. They are, thus, committed to stay in the region for a long period, in most cases for years (e.g., Kosovo, Bosnia, Bougainville, Macedonia, South Ossetia, Gagauzia).

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Table 4 Institutionalized Third-party Involvement Conflict Institutionalized Involvement Northern Ireland • Intergovernmental Conference (since 1985) • IICD (since 1995), international weapons inspectors • Independent Commission on Policing for Northern Ireland Bougainville • Truce Monitoring Group (October 1997 – April 1998) • Peace Monitoring Force (since April 1998) • UN Political Office (UNPOB, since August 1998) • Peace Process Consultative Committee (since 1999) Mindanao • Joint Monitoring Committee (includes OIC representatives) Bosnia • UNPROFOR I and II (1992-1995) • Peace Implementation Council (since 1995) • Office of the High Representative (since 1995) • NATO-led IFOR (1995) and SFOR (since 1996) • OSCE Mission to Bosnia and Herzegovina • UN Police Task Force (1996-2002) • EU Police Mission (since 2003) Kosovo • CSCE Mission on Long Duration (1992-1993) • Kosovo Verification Mission (October 1998–March 1999) • UNMIK (since June 1999) • NATO-led KFOR (since June 1999) • OSCE Mission to Kosovo • EU Agency for Reconstruction Macedonia • UNPREDEP (1992-1998) • OSCE Spillover Monitor Mission (since 1992) • NATO missions (Essential Harvest, Amber Fox, Allied Harmony 2001-2003) • EU Military Mission (since March 2003) • EU Monitoring Mission (since March 2001) Gagauzia • OSCE Mission to Moldova (since 1993) South Ossetia • Georgian-Russian Joint Peace-Keeping Force (since 1992) • OSCE Mission to Georgia (since 1992) • Joint Control Commission (since 1992)

These bodies, however, follow rather different approaches as they have to fulfill distinct tasks, be it during the settlement or the implementation period. Generally, seven approaches or areas of activity can be distinguished, which are all relevant for both settlement and implementation. This overlap is due to the fact that the implementation process has to be understood as an ongoing negotiation process, and that often follow-up agreements, clarifications, and further compromises are needed. In many cases, the peace process suffered serious set-backs after a major agreement had been signed (Northern Ireland, Mindanao, Bosnia, Kosovo, Macedonia, Gagauzia). Therefore, in many cases, these approaches are still useful in the aftermath of an agreement when it comes to implementation.

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A

Aid and Assistance

The most basic and simple form of involvement is to offer aid and assistance to the conflicting parties. This includes humanitarian and development aid, reconstruction efforts, macro-financial and long-term economic support, preferential trade relations, technical assistance, various forms of political cooperation, as well as regional integration processes. Often international aid has been mobilized by multilateral donor conferences, hosted by the EU or the World Bank (e.g., Bosnia, Kosovo, Macedonia). For example, in Macedonia, the issue of the donor conference was explicitly made conditional by the EU on certain steps in the implementation process being achieved or taken.16 In all cases, we can observe these activities, which can work as incentives, in particular for national governments, to find peaceful solutions. The message given is: ‘if you are prepared to keep peace, we as the international community are prepared to finance a ‘peace dividend’ which will ideally improve social and economic conditions.’ In Northern Ireland, the EC/EU financed cross-community and cross-border (North-South) projects for many years. After the Anglo-Irish Agreement in 1985, the USA government set up an ‘International Fund for Ireland.’ In Bougainville, the development agencies of Australia and New Zealand became active. AusAid as the largest donor spend aud 134 million (1997-2002) and NZODA gave nzd 10.2 million (2000-2001) to Bougainville. Moreover, the EU has committed eur 9.1 million (2000-2001) for post-conflict rehabilitation and re-building of infrastructure, channelled via the UNDP (Eagles 2002). In Mindanao, UNDP serves as lead agency and offers a multilateral framework for bilateral donors; in 1997 approximately usd 500 million had been pledged by donors. In South Ossetia, the EU and UNDP set up their own rehabilitation projects and tried to drive the local parties and Georgian government officials towards cooperation in order to receive the funding. The EU projects are particularly directed to the re-building of infrastructure between South Ossetia and the rest of Georgia (e.g. transportation, energy, or communication). In Gagauzia, international donors are less prominent – prior to the political solution in 1994, Turkey, for example, promised investments and development assistance for the region.17 However, due to various implementation problems in Moldova, it took until 2001 before local authorities were able to agree with UNDP on a regional development programme named ‘Gagauz-Eri.’ The largest amount of aid thus far has been spent in the Balkans, mainly by the EU and, since 1999, largely via the Stability Pact for Southeastern Europe. During 16

17

After the Ohrid agreement, a donor conference was planned for late 2001. The EU, however, cancelled the meeting because of delays in implementing the constitutional changes. The conference eventually took place in March 2002. See Schneckener 2003: 151. In 1998, Turkish President Demirel finally announced that his government would grant Moldova a usd 35 million credit (including usd 15 million for improving the water supply system in Gagauzia) (Järve 2007).

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the first years after the settlement (1996-1999), Bosnia alone received USD5.25 billion from international donors, roughly 60% was used for reconstruction, 14% for economic reforms and recovery, and 16% for the establishment of institutions (Cousens and Carter 2001: 88-89). In the case of Macedonia, the EU had already transferred eur 452.3 million between 1992 and 2001 for supporting businesses, the financial sector, infrastructure projects, and institution-building. During the crisis in spring–summer 2001, the EU combined short-term humanitarian aid with the long-term perspective of EU integration via the Community Assistance for Reconstruction, Development and Stabilization programme (CARDS) and the Stabilization and Association Agreement (SAA).18 In June 2001, the EU offered a substantial financial aid package on the basis of the SAA (eur 42 million aid plus a macro-financial assistance of eur 50 million) if the local parties are able to solve the crisis peacefully (Schneckener 2003: 147). The example of the Macedonian crisis underscores the unique role of the EU with regard to the Balkans. Here, the prospect of EU membership serves more and more as an incentive for local elites to change their behaviour. However, these cases also show that aid and assistance can have negative sideeffects or may even be counter-productive. First, aid may destroy local capacities and local markets and thereby make the country or the region even more dependent on international donors. Second, local elites may get accustomed to external aid, which fosters a ‘rent-seeking’ mentality. Third, local politicians do not have to act responsibly as long as the international community is prepared to pay for the problems. Fourth, aid may be abused by local actors for black market activities, corruption, or crime; in particular, humanitarian aid is often used for wrong purposes. Fifth, aid may increase the tensions between communities when one side feels neglected or marginalized.19 B

Facilitation

Third parties usually restrict themselves to providing ‘good offices’ as well as technical or logistical assistance for dialogue, pre-negotiations, and, finally, official negotiations between the conflicting sides. They may offer advice and expertise, but they do not try to dominate the agenda and to draft agreements. Facilitation can be conducted in an informal or formal manner. The facilitator can attend the negotiations or stay behind the scenes, and can also be used by the conflict parties as a messenger, often via secret channels. Frequently, facilita18

19

While CARDS serves as the main channel for EU’s financial and technical cooperation with Southeastern Europe, the SAA offers regular economic aid, improved trade relations and an advanced political dialogue. Macedonia signed the SAA in April 2001. See Schneckener 2003: 140-141. One example is the internationally financed programme in Mindanao, which was directed exclusively to the re-integration of MNLF members and their families which caused resistance and complaints by other groups and local authorities. See Turner 2003.

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tion takes place outside the conflict region and the meetings are sponsored by the host government or by an international body, and sometimes independent research institutes or academies are used as locations for informal gatherings. Facilitation thus provides room for ‘talks about talks’ or the exchange of unofficial or unrecognized documents (so-called non-papers) that do not have a binding character for both sides. The Bougainville case may serve as a paradigmatic example: In early 1997, New Zealand facilitated regular talks between the government and the rebels, which led to the Burnham Truce (October 1997). The Australian government supported these efforts with the Peace Transport Fund (PTF), which was set up to finance the transportation of key actors and their advisors to meetings outside Bougainville. Despite some problems in administration and increasing costs because of the lengthy negotiations, the PTF proved essential, as Eagles (2002) notes: “the PTF was flexible and responsive and it facilitated the movements of negotiating teams at short notice, which was crucial in maintaining the momentum for peace and dialogue.” Similarly, in the case of Mindanao, the OIC always understood itself to be a facilitator trying to initiate a dialogue between the government in Manila and the MNLF. For instance, the OIC-sponsored exploratory talks in Libya (October 1992) and in Indonesia (April 1993) can be viewed as typical facilitation efforts. The same is true for the more recent attempts by Malaysia to establish a channel between the government and the more radical Moro Islamic Liberation Front (MILF) (March 2001). In Northern Ireland, the so-called Mitchell Commission played a facilitating role by producing reports and guidelines not only for decommissioning, but also for a possible package solution. That material was used as a basis for peace talks, which eventually led to the 1998 Agreement (McGarry and O’Leary 1996: 358-364). In a similar way, external expertise has been used in Gagauzia: the OSCE and the Council of Europe have issued various reports and recommendations for Gagauz autonomy. This practice continued through the implementation process, which proved to be rather slow and strewn with obstacles.20 In Ossetia, the OSCE facilitated the establishment of various fora for a Georgia-South Ossetia dialogue (e.g., Plenipotentiary Forum since 1997) or practical cooperation (e.g., Joint Law-Enforcement Coordination Centre since 2000). In general, facilitation pre-supposes that the parties concerned may be unable to engage directly and without external help, but they are in principle willing to negotiate and even to compromise. Facilitation also implies that the parties may need some input from outsiders, but are still able and prepared to find their own solutions. However, as most cases show, facilitation efforts are often not sufficient for either achieving or for implementing a settlement (Mindanao, Northern 20 For example, in early 2002, the European Commission for Democracy Through Law (Venice Commission), an international body of lawyers sponsored by the Council of Europe, made an important contribution when it issued an opinion to the Moldovan draft of the constitutional amendments for ensuring Gagauz autonomy. See Järve 2007.

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Ireland, Gagauzia, or South Ossetia). Here, facilitation worked either as a starting point for third party intervention or as one activity among others. This can also be illustrated by the case of Macedonia. When the crisis started in early 2001, the EU High Representative, Javier Solana, tried to restrict his role to facilitation, stating: “The European Union is here to help, not to be a mediator in this dialogue.”21 Solana, together with NATO Secretary General Lord Robertson, paid several visits to Skopje in order to foster dialogue, but had to learn that the EU had to take a more active and decisive approach, which finally led to the appointment of a EU Special Representative in June 2001 as a key mediator. C

Mediation

In contrast to facilitation, mediation is characterized by more active third party engagement. Third parties actively attempt to broker agreements and do not leave the solution solely to the conflicting parties. Therefore, as Bercovitch (2002: 5) points out, mediation “turns a dyadic relationship into a triadic interaction”, whereas ideal-type facilitation just supports inter-group dialogue. In mediation as understood here, third parties often prepare and chair the negotiations, they table their own proposals, in some cases they draft settlements or even constitutions and special laws. They try to manage and direct the peace process as a whole, be it in a settlement or implementation phase. Mediation can have various forms: it can be conducted by shuttle diplomacy or by a permanently present mediator and negotiator, by multi-track diplomacy, or by a single forum. Mediation remains a non-coercive form of intervention, i.e., in the end, the local parties cannot be forced to agree. Third parties, however, usually use incentives and disincentives in order to foster cooperation. The paradigmatic case here is Northern Ireland, where over many years various mediation activities took place. Firstly, during the 1970s and 1980s, largely conducted by the British government via the Northern Ireland Office, then with the increasing inclusion of international components. In the end, US Senator Mitchell served as the central mediator during the whole negotiation process (1996-1998), supported by the Irish, British, and US governments. This setting also shows a coordinated division of labour: The Irish and US governments acted to moderate the Nationalist side, while the British government was primarily concerned with the Unionists. These joint efforts have had to continue after the Good Friday Agreement, since the implementation has been characterized by various setbacks and crises, which have repeatedly led to the temporary suspension of the local power-sharing executive (Schneckener 2002a: 306-307). In Bougainville, after the facilitation phase overseen by New Zealand and Australia, the head of the UN Political Office (UNPOB), Ambassador Noel Sinclaire of Guyana, and the Peace Monitoring Force Commander co-chaired the peace talks (March 2000–June 2001), which led to the Bougainville Peace Agreement of August 2001. UNPOB, invited to do so by the local parties, organized separate meetings 21

Solana at a press conference in Skopje (2 April 2001). See Schneckener 2003: 145.

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with each side (in particular with hardliners), and round-table talks as well as formal and informal rounds of negotiations. Moreover, the UNPOB established and chaired the Peace Process Consultative Council (PPCC), which worked as a confidence-building mechanism. During this process, the UNPOB from time to time issued proposals and paved the way for a common understanding of the problems. The role of UNPOB is captured in Eagles’ observation that “the parties came to rely on the UN, but not to depend upon it” (Eagles 2002). In a similar way, mediation has been conducted by the OSCE in Gagauzia (together with the HCNM) and in South Ossetia.22 As far as power-sharing agreements are concerned, these efforts were more successful in the former than in the latter case. In contrast, the mediation process in regard to Bosnia and Macedonia became a rather complex undertaking, involving a whole range of external actors and different initiatives. In Bosnia, the various joint EU and UN peace plans were the most prominent, but unsuccessful, attempts to stop the war. A major reason for this failure was that the joint mediation teams (Vance-Owen and Owen-Stoltenberg) did not always receive the necessary support from major powers (in particular the USA, Russia, and France) and that the international community could not agree to back these efforts with credible military threats (Gow 1997). Each group (Croats, Serbs, and Muslims) could rely on certain ‘advocates’ on the international stage and were thus able to play the third parties off against each other. Only when the USA (together with the Contact Group) took the lead and applied military force, was it possible to break the deadlock. In the case of Macedonia, the international community seemed to have learnt the lesson. There, after some coordination problems at the beginning of the crisis, the EU and the USA appointed the special envoys (former French Defence Minister Francois Léotard and former US ambassador James Pardew) in June 2001, who worked together as a team based on a common platform. They were supported by the OSCE’s special representative Max van der Stoel, by international lawyers and, in particular, by NATO’s so-called ‘technical contacts’ with the Albanian Kosovo Liberation Army (Ushtria Çlirimtare E Kosoves, UÇK), who were critical in establishing an indirect channel between the extremists and the Macedonian government (Schneckener 2003: 147-148). After a phase of pre-negotiations, the joint EU-USA team finally chaired the successful Ohrid negotiations (August 2001). The comparison between Bosnia and cases such as Macedonia or Northern Ireland emphasizes that it is crucial for mediation that the relevant third parties are able to combine their efforts, to develop a common language towards the local actors and, thereby, ex-

22

According to its mandate, the main objective of the CSCE/OSCE mission in Georgia was to promote negotiations between the conflicting parties in order to achieve a political settlement. In March 1994, this mandate was amended to specifically intensify discussions with all parties to the conflict, including the organization of round tables, and to make recommendations regarding the convening of an international conference under OSCE auspices, aimed at the resolution of the conflict, including the definition of the political status of Southern Ossetia.

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ert a maximum of diplomatic pressure during the settlement and implementation phases without necessarily using the threat of force. D

Monitoring

Third parties observe the peace process as a whole or by concentrating on specific elements. Typical examples are the monitoring of a ceasefire, of demobilization and disarmament, of borders, of human rights, or of elections. They verify certain steps in implementation, they report to the local as well as international actors about violations of an agreement and delays in implementing it. Monitoring is therefore mainly about fact-finding and information gathering. These efforts can be understood as a response to the fact that conflicting parties often deeply mistrust each other and need a credible independent authority to observe the process. Monitoring is thus a contribution to confidence-building and an assurance for each side that no side can readily get away with disregarding agreed principles and policies. Monitors often work as ombudspersons who collect complaints about violations and seek dialogue with the authorities or ethnic communities concerned to verify and/or rectify the situation. The work of the OSCE field missions illustrates this approach. Most prominently, the OSCE was responsible for post-agreement election monitoring in five of the eight case studies (Gagauzia, Ossetia, Kosovo, Bosnia, and Macedonia). Furthermore, in Gagauzia and South Ossetia, the OSCE is still responsible for other monitoring tasks, tasks that have been gradually extended over time. According to the renewed mandate (1999), the OSCE mission to Moldova with regard to Gagauzia monitors interethnic relations, observes compliance with international obligations and commitments regarding human and minority rights, and cooperates with local authorities in cases of complaints in the ‘human dimension’. Due to serious implementation problems, the OSCE emphasized in 2000 its willingness to monitor “the political situation in the autonomous region of Gagauz Yeri and the Moldovan-Gagauzian centre-region relations in the areas of tax revenues, budget allocations, public property ownership, and adjustment of legislation.”23 The OSCE mission in Georgia (since December 1992) has the tasks of promoting respect for human rights and the development of the rule of law, including the establishment of an independent judiciary in Georgia as a whole. For the Ossetian conflict, the OSCE gathers information about the military situation, investigates violations of the ceasefire and maintains close contacts with local authorities. In Macedonia, the OSCE has been present since 1992, when the international community feared that the war in Bosnia could spill over to Macedonia. Later, in the wake of the crisis in 2001, the mission and its mandate were significantly expanded in order to monitor the situation (up to 200 members, starting in October 2001). During the Kosovo conflict, the OSCE was used twice in order to observe human rights violations and stabilize the situation on the ground. Firstly, in the early days of the conflict, the CSCE Mission of Long Du23

See OSCE Mission Report on Human Dimension Activities, October 2000.

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ration in Kosovo, Sandžak, and Vojvodina (September 1992–June 1993) had reported, inter alia, about the humanitarian and military situation in Kosovo before the mission was expelled by the Yugoslav government. Secondly, at the peak of the crisis in 1998, the Belgrade regime had to allow for an international presence in Kosovo as a consequence of the so-called Holbrooke Agreement (13 October). The OSCE Kosovo Verification Mission (KVM), which could have comprised up to 2,000 unarmed observers, would have then been the largest OSCE mission ever.24 The KVM had a fairly broad mandate for monitoring the ceasefire and verifying compliance with the agreement, in particular with the military arrangements made. Moreover, it was foreseen that the KVM would supervise elections in Kosovo and assist in finding a political solution. But a number of other actors are also involved in monitoring. In Mindanao, the OIC was given an overall monitoring role for the 1996 agreement (para 12) and a special representation within the Joint Monitoring Committee (para 13). In Bougainville, the Truce Monitoring Group and, later, the Peace Monitoring Force have been responsible for observing the military situation. According to the Bougainville Peace Agreement, the small UNPOB (eight persons, including four international staff members) shall monitor and verify the process of disarmament, as well as assist the re-integration and rehabilitation of ex-combatants. In Northern Ireland, international monitors have similar tasks. The IICD has to oversee the decommissioning of paramilitary weapons. Additionally, two former statesmen were asked to inspect arms dumps of the IRA and report to the IICD on progress in decommissioning. In a much more comprehensive and forceful way, NATO played a monitoring role in Macedonia. Initially, NATO sent about 4,000 soldiers to collect and destroy the weapons of the Albanian extremists; weapons which had to be handed over voluntarily (Operation Essential Harvest, 27 August–26 September 2001). NATO, via its smaller follow-up missions (Amber Fox, 27 September 2001–16 December 2002, and Allied Harmony, 17 December 2002–31 March 2003), monitored the ceasefire, observed the general military situation and secured the protection of the unarmed OSCE monitors.25 The case studies show that monitoring can be done in rather different and flexible ways, is conducted almost entirely by international organizations, ranges from small observer teams to large, armed missions that are able to defend themselves. Monitoring does imply observation and evaluation of compliance with agreements (including ceasefires), but not the enforcement of compliance. However, non-compliance, despite international monitoring, can still have consequences for local parties. For example, monitors can publicly criticize certain 24 The KVM was supported by NATO air surveillance and by a NATO extraction force which was deployed in Macedonia to ensure the protection and the evacuation of the OSCE personnel if necessary. The KVM, however, did not reach the scale of 2,000 observers before it was removed in March 1999 due to the military intervention by NATO. 25 Since April 2003, the EU has taken over NATO responsibilities by deploying the EU Military Mission (Operation Concordia), comprising 350 soldiers.

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violations or practices. Alternatively, monitors can try to persuade the party concerned behind closed doors to change its behaviour. Finally, reports by monitors have often been used by other third parties as a point of reference for taking certain actions, e.g., the application of sanctions or the use of force in cases of gross human rights violations. E

Coercive Diplomacy

One or more local actors may be forced by third parties to stop violence, to come to the negotiating table, to sign an agreement, or to comply with the settlement. Third parties may apply severe economic, military and/or diplomatic sanctions, e.g., no fly zones or arms embargoes. Furthermore, they may endorse the credible threat of force, issue serious warnings to the local parties or set ultimatums, and may finally, if necessary, intervene militarily (peace-enforcement or peace-making). They may supervise the peace process by the provision of security guarantees and the deployment of troops on the ground (post-conflict peacekeeping). These troops may then be authorized (and prepared) to use coercive means against anybody who wants to end the peace process by returning to violence. The exemplary cases here are Bosnia and Kosovo. In Bosnia, the USA finally decided to use coercive means in order to pave the way for a political solution. In summer 1995, they were able to change the military situation on the ground by supporting the Croatian army, which then joined the combined Croat-Muslim forces in Bosnia. In addition, NATO, with the permission of the UN Security Council, ordered air strikes against Serbian forces around the besieged city of Sarajevo (Operation Deliberate Force, 29 August–14 September 1995). In the Statement of Agreed Basic Principles (8 September 1995), the Serbian side accepted certain premises for a settlement for the first time. During the Dayton peace negotiations (1–21 November 1995), the USA again put severe pressure on all sides to reach an agreement, including the threat of military force. For implementing the peace accords, the parties had to accept a robust international force led by NATO. The Implementation Force (IFOR) deployed 60,000 soldiers, the followup mission Stabilization Force (SFOR) eventually reduced the military personnel to 12,000 (2002). In the case of Kosovo, the use of military force was even more dramatic. The Holbrooke agreement with President Miloševic (13 October 1998) has to be understood as an example of coercive diplomacy, as it was done under a NATO ultimatum. NATO decided to apply limited air strikes and a phased air campaign after a period of about ninety-six hours once the necessary activation order (ACTORD) had been made. The ACTORD remained in force throughout the following months, and therefore all diplomatic steps took place under the imminent threat of military means. In particular, the Rambouillet and Paris peace talks (6–23 February and 15–19 March 1999), co-chaired by the USA, the EU, and Russia, were conducted under the clear intent of NATO and the USA to intervene militarily if the regime in Belgrade was not prepared to sign an agreement. The failure of the peace talks subsequently led to full-scale NATO warfare against Yugoslavia (24 March–10 June 1999), which ended with the withdrawal of the

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Yugoslav army and police from Kosovo and the establishment of an international regime, including a 60,000 strong force led by NATO (KFOR). In the other cases, coercive elements were rather limited. The only notable exception may be South Ossetia, where since 1992 a Russian-led peacekeeping mission would, in principle, be able to act against paramilitary groups and may therefore deter others from the use of violence.26 Coercive diplomacy is an extreme form of third party intervention and happens rarely. Very few actors, such as powerful states or a coalition of states, are willing and able to put their own soldiers at risk in order to intervene military in a self-determination conflict. Coercive diplomacy involves high costs for the third party and implies a long-term commitment. In contrast to all other approaches, coercive diplomacy does not need any consent from the local parties. The key question with regard to power-sharing systems, therefore, is whether former enemies can indeed be forced from outside to share power. The results in Bosnia and Kosovo thus far are not entirely convincing. Moreover, the use of force usually needs a special authorization by the international community, notably by the UN Security Council. This was the case in Bosnia, while NATO’s intervention in Kosovo did not get the blessing of the UN Security Council (mainly due to Russian and Chinese opposition), so only KFOR operates under a UN mandate. The Kosovo case highlights the general problem of this approach. Who decides when coercive diplomacy is needed and in what form? F

Arbitration

Third parties can make decisions when the local parties are not able to agree upon certain regulations or policies. Arbitration can take place within a formal, juridical procedure (e.g., courts) or political bodies (e.g., ad hoc or permanent commissions). A crucial feature of arbitration is the binding character of the decisions. The parties then have to comply with these decisions or face sanctions. With regard to the case studies, the approach has only been relevant for Bosnia and Kosovo. The Office of the High Representative (OHR) in Bosnia and UNMIK in Kosovo have the right to take decisions on behalf of the local actors. In December 1997, the Peace Implementation Council granted the High Representative the power to decree legally binding decisions in all areas where the parliamentary assembly or the entity parliaments are not able to pass laws. The mandate of the OHR was thus expanded because of various deadlocks in the implementation process as the local parties had used the power-sharing structure not for cooperating, but for blocking one another. The OHR made extensive use of this competence and took more than 100 decisions (Bieber 2007). Furthermore, the Bosnian Constitutional Court acts as arbitrator in cases of disagreement from time to time. The court has nine members, including three international judges appointed by the European Court of Human Rights. In July 2000, an important decision 26 In Macedonia, the presence of NATO might have had a similar deterring effect. The missions, however, were not used by the international community as an instrument of coercive diplomacy.

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was made when the court declared with a majority vote that those articles of the Constitution of the Republika Srpska that refer to the Serbs as the ‘constituent nation’ of the entity are incompatible with the principles of the Dayton Constitution. The court therefore demanded changes, and after failed negotiations among the parties this led to a final decision taken by the OHR. As these cases show, the effects of arbitration may be ambivalent. On the one hand, arbitration offers an opportunity to overcome deadlocks in the peace process. It may even be a relief for the conflict parties to know that somebody else will decide for them. On the other hand, the danger is that the conflict parties leave almost every decision to the arbitrator in order not to make any compromises. Arbitration by a third party, thus, may actively encourage hardline positions and, thereby, weaken power-sharing structures that aim at fostering cooperation among the former adversaries. G

Interim Administration

Here third parties implement the entire agreement or elements of it by themselves. They have executive and legislative competencies, they administer the state or the region until powers are devolved to local parliaments or governments. The administration can be done by a purely international body (with some local staff ) or by a mixed international-domestic institution where international and local actors act jointly. Again, Bosnia and Kosovo serve as prime examples. In Bosnia, both international authorities and mixed institutions are used to implement the Dayton Peace Accord (DPA). The OHR, supervised by the multilateral Peace Implementation Council, acts as the key institution for civil implementation while NATO (via IFOR/SFOR) is responsible for the military aspects, the UN for policing (International Police Task Force),27 the OSCE for elections, the Council of Europe for human rights, the UNHCR for the return of refugees, and the EU together with the World Bank and UNDP for economic reconstruction (Table 5). In addition, a number of institutions and bodies are dominated by international actors: the Constitutional Court with its international judges, the Central Bank (the first governor was chosen by the International Monetary Fund), the Commission on Election (four of seven members from abroad), the UNHCR-led Commission on Refugees, the Commission on Return of Properties (three of nine members are appointed by the European Court of Human Rights), and the Human Rights Commission, comprising an Ombudsperson (appointed by the OSCE for five years) and a Chamber with eight of the fourteen members nominated by the Council of Europe. The High Representative got the final authority for interpreting the DPA, he also has the power to make, to change and to annul laws, and he can dismiss officials, both civil servants and elected officials if they are not willing to comply with the DPA. By 2002, over sixty officials have been dismissed by the OHR (Bieber 2007). 27

Since 2003, the EU has taken over the responsibility for policing (EU Police Mission).

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Table 5 Interim Administration in Bosnia Task Military aspects Civil implementation Regional stabilization International policing Preparation and implementation of elections Return of refugees Protection and return of property Protection of human rights Constitutional Court Central Bank Protection of national monuments Economic reconstruction Education policy

International actor NATO-led SFOR (former IFOR) International High Representative OSCE, Stability Pact UN, European Union Police Mission (EUPM) (since 2003) OSCE UNHCR, EU European Court of Human Rights (ECHR) OSCE, Council of Europe, UNHCR, ECHR, Human Rights Co-ordination Centre (HRCC) ECHR IMF UNESCO World Bank, EU, UNDP OSCE, Stability Pact

In Kosovo, the interim administration (UNMIK) was established by UN Security Council Resolution 1244 (1999). UNMIK was allocated a list of tasks: to perform basic civilian administrative functions for as long as required, promote the establishment of substantial autonomy and self-government in Kosovo, organize and oversee provisional local institutions, coordinate humanitarian relief, support reconstruction of key infrastructure, promote human rights, assure the safe and unimpeded return of refugees, maintain civil law and order (including international policing), and, finally, supervise the successive transfer of its administrative responsibilities to permanent, elected local institutions. In order to fulfill its mandate the interim administration has been subdivided into ‘four pillars’. The first pillar deals with police and justice (under UN leadership), after humanitarian assistance (led by the UNHCR) was phased out in June 2000. The second pillar concerns the UN civilian administration, the third pillar democratization and institution-building (led by the OSCE), and the fourth pillar reconstruction and economic development (led by the EU). UNMIK rules by regulation essentially. In its first regulation (1999/1), UNMIK reserved for itself all “legislative and executive authority with respect to Kosovo, including the administration of the judiciary.”28 In order to involve local actors, UNMIK established the Interim Administrative Council (IAC) in January 2000 – an eight member advisory body (four UNMIK officials and four Kosovars, including one from the Serb minority). The IAC could make recommendations and give guidelines to the twnty Joint Interim 28

See UNMIK Regulation 1999/1 of 25 July 1999, On the Authority of the Interim Administration in Kosovo, Section 1.

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Administrative Departments where Kosovars served as co-heads of department along with international representatives. In May 2001, UNMIK went a step further and issued the Constitutional Framework for Provisional Self-Government (Regulation 2001/9) which foresees a power-sharing structure for Kosovo.29 The framework was a pre-condition for the Kosovo-wide elections (November 2001) and the establishment of local institutions (executive and parliament). Some tasks have now been transferred, but according to the Constitutional Framework UNMIK still exercises a number of “reserved powers and responsibilities,” including budget control, monetary policy, control of customs service, appointment and removal of judges and prosecutors, authority over law enforcement, as well as full authority to ensure that the rights of all communities are protected (Weller 2003). Table 6 summarizes the various tasks implemented or undertaken by different international actors. Table 6 Interim Administration in Kosovo Task Military aspects Civil implementation International policing, police education Preparation and implementation of elections Institution-building, rule of law Humanitarian aid Return of refugees Protection of human and minority rights Economic reconstruction and development Media, freedom of expression

International actor NATO-led KFOR UNMIK, Special Representative of the Secretary-General, Interim Administrative Council UNMIK, OSCE OSCE OSCE OSCE, EU Humanitarian Aid Office (ECHO) UNHCR UNHCR, Ombudsperson Institution (OSCE) EU (European Agency for Reconstruction), World Bank, USAID Temporary Media Commissioner (OSCE, UN)

The mixed international-domestic regime in South Ossetia can also be regarded as an interim administration, however at a somewhat lower level (Table 7). The key body is the Joint Control Commission (JCC), which was set up following the ceasefire in 1992. The JCC comprises representatives from the OSCE, Russia, Georgia, and South Ossetia. As subordinate institutions, three working groups deal with military aspects, economy, and repatriation, the latter included an ad hoc committee with UNHCR participation. Moreover, the EU and UNDP are 29 See UNMIK Regulation 2001/9 of 15 May 2001, Constitutional Framework for Provisional Self-Government.

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involved in JCC economic policies. The JCC serves as a platform for both supervising day-to-day administrative work in the region and for improving the Georgian-Ossetian relations in order to achieve a final settlement. Table 7 Interim Administration in South Ossetia Task Military aspects Civil implementation Preparation and implementation of elections Institution-building, rule of law Humanitarian aid Return of refugees Protection of human and minority rights Economic reconstruction and development

International actor Georgian-Russian Joint Peace-Keeping Force JCC OSCE OSCE EU, UNDP UNHCR, Norwegian Refugee Council UNHCR, Ombudsperson Institution (OSCE) EU, UNDP

The three regimes differ to some extent. In Bosnia, the interim administration is in charge of implementing a comprehensive power-sharing system and a constitution, mainly written by outsiders, while in Kosovo and South Ossetia the international bodies are based on interim or provisional arrangements and are mandated to establish a permanent solution. In these latter cases, local actors are more involved in the process of finding a solution than they are in Bosnia. In Kosovo, after consulting local parties, UNMIK had the authority to set up a temporary power-sharing structure pending a solution to the final status of Kosovo, which is still disputed between Albanian Kosovars, the Serb minority, and Belgrade. By contrast, in South Ossetia the search for a solution has to be a joint undertaking between international and local actors. In general, interim administrations are clearly the most far-reaching form of intervention in terms of powersharing. Here, the power is not only to be shared among local parties but also, at least for an interim period, between local and international actors. In Bosnia and Kosovo, local power-sharing can be overruled by international decisions. The advantage is that interim administrations provide a relatively reliable public order and security framework that can be seen as a pre-condition for reconciliation and confidence-building among the former local enemies. Moreover, the situation on the ground can be improved without waiting until the parties concerned agree to certain policies. There are, however, serious problems with international administrations. First, similar to coercive diplomacy, they involve comparatively high costs and a large number of international personnel to be deployed on the ground. Second, as with arbitration, as long as third parties take the decisions and provide the framework, local politicians do not have to act responsibly and are not accountable, they can afford to stick to their (hardline) positions and do not

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need to compromise, as illustrated in particular by the Bosnian example. Basically, they are not forced to practice power-sharing.30 Third, local actors may feel alienated from the political process and then organize protests and opposition against the international administration, which may in extreme cases lead to terrorist acts. Fourth, some decisions of the international actors may appear counter to democratic standards and procedures (e.g., the dismissal of elected politicians, the suspension of laws) and may be regarded as arbitrary by the population. Fifth, interim administrations may have great difficulties in organizing the transfer of power and choosing the right time for devolving competencies to local bodies. Often they make themselves almost indispensable, and, unintentionally, do not allow for local capacity-building. Finally, these administrations often do not have a clear exit strategy, there exists no plan as to when and how to withdraw. H

Discussion

If we now look at all the approaches and all the case studies (Table 8), we can make the following observations. Third parties act mainly as donors, assistants, advisors, or monitors. Facilitation has also often been attempted, but has proved to be insufficient for achieving or implementing an agreement in all cases – either these efforts failed (e.g., Mindanao) or other measures had to be taken (e.g., Macedonia). Thus, in most cases, mediation was needed to set up power-sharing arrangements. Only in a few cases were third parties prepared to use coercive means. After the failure of non-military approaches in Bosnia and Kosovo, military force was finally applied in order to end local warfare. The use of force, however, increased the commitment and responsibility of international actors to guarantee stability and a political settlement, which led to their role as arbitrator and interim administrator. The cases of Bosnia and Kosovo are exceptional and are extreme examples of third party involvement.

30 The former High Representative for Bosnia, Wolfgang Petritsch, made this point very strongly when he said that: “In the long run the usage of the far-reaching powers lead to a type of dependency syndrome. Local parties began to opportunistically rely too much on the political intervention of the High Representative, especially when it came to unpopular measures. They can behave despite being in government, as if they were in opposition and defend their ethno-nationalist goals without [the] need to compromise”.

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Table 8 Approaches Adopted by Third Parties Conflict N. Ireland Bougainville Mindanao Bosnia Kosovo Macedonia Gagauzia S. Ossetia

Aid and Assistance X X X X X X X X

Facilitation

Mediation

Monitoring

X X X

X X

X X X

X X X

X X X X

X X X X

Coercive Arbitra- AdminiDiplotion stration macy

X X

X

X X

X X

X

IV Favouring Third-party Involvement Finally, there remains the question under what conditions third parties can expect to significantly foster peace processes and achieve power-sharing arrangements. Surely, it is difficult or almost impossible to measure accurately the specific contribution of third parties where agreements have been successful and led to a lasting peace. We do not always know to what degree the success of these agreements is simply due to local factors and to what extent third parties are entitled to claim credit. However, what can be stated is that there are certain factors that favour third party involvement irrespective of whether their efforts have been decisive for success or not. The underlying assumption is that if these favourable conditions are present, then a positive contribution of third parties is more likely. The minimum criteria for positive or successful third party involvement would be that large-scale violence does not take place as long as key international actors are on the ground.31 With regard to our case studies, this criteria is by-and-large fulfilled. The only exception seems to be Mindanao, where the third party (OIC) is not permanently involved and where violence still takes place. We have reason to assume that third parties have had an impact without being able to pinpoint to what degree they were responsible for stopping violence. What are plausible factors that could determine the impact of third parties? The following summarizes the main findings from the literature on successful or failed peace agreements, but here we will focus on the role of third parties (see in particular Zartman 1985; Hampson 1996; Walter 1997; Stedman and Rothchild 1996; Stedman 1997; Doyle and Sambanis 2000; Stedman 2001; Stedman, Rothchild and Cousens 2002). These factors should be understood as no more than a checklist and not as necessary or even sufficient conditions for positive outcomes. Three sets of factors can be distinguished: the first are related to 31

For similar efforts in defining successful third party involvement, see Downs and Stedman (2002: 50-52).

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the conflict itself, its key actors and its dynamics; the second to the terms of settlement; and the third to the character of the third parties. A

Factors Related to the Conflict and its Key Proponents

•

Number of warring parties: the more warring parties exist, the more difficult it becomes for outsiders to broker peace or to assist implementation. The assumption is that a great number of parties will complicate negotiations and make it almost impossible to have inclusive processes. Moreover, if each side is highly fragmented internally then it is difficult to identify the groups that may be representative and legitimized to negotiate. The more parties involved, the greater the danger of violent fringe groups that are able to derail any peace process. This factor played a prolonged role in the cases of Northern Ireland and Bosnia. It still seems to be a problem in Mindanao, where the Muslim minority is split in various groups and fractions. Existence of a mutually hurting stalemate: if a conflict is characterized by a mutually hurting stalemate, i.e., no side is able to win militarily, then third party intervention can be successful. The assumption is that third parties often have to wait for the ripe moment before their efforts can have an impact. A hurting stalemate can be seen as such a moment. Indeed, in the Bosnian case it was important that the military situation changed on the ground before diplomatic efforts could succeed. Here, third parties helped to bring a stalemate about. A similar process took place in Kosovo (due to Western intervention) and Ossetia (due to Russian intervention). In Northern Ireland, the major local parties themselves came to the conclusion that in the end no side would be able to win militarily. In other cases, however, there was no clear stalemate before third parties could help to broker peace agreements (e.g., Gagauzia, Bougainville, Macedonia). These examples show that the relevance of this factor is highly contested and has to be established on a case-by-case basis. Level of violence: the lower the level of local violence, the better for third party intervention. The earlier third parties get involved, the greater the prospects for success. The paradox, however, is that if the level of violence is low and not reported by international media, third party involvement is usually unlikely. An exception to this rule seems to be the case of Gagauzia where we could observe early involvement in a case of low-scale violence. To a lesser extent, this was also true for Macedonia, where international actors became involved from the early 1990s and again in the early days of the 2001 crisis. In all other cases, a certain level of escalation, unfortunately, seemed to be necessary in order to attract international attention. Role and behaviour of local conflict parties: the more local elites are willing to cooperate with international actors, the better for third party involvement. In order to be successful, local parties have to be responsive to proposals, advice, or assistance, but also to pressure from outside. In cases of self-determination conflicts, however, governments often claim that the conflict is

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an internal affair and rule out any international involvement. They are not prepared to work with a third party (e.g., Kosovo) or, at least, they try to limit their influence (e.g., Mindanao). This pattern can be observed in almost all cases. Over time, the attitude of governments changed in some cases and the level of cooperation with external actors gradually increased (e.g., Northern Ireland, Bougainville, Gagauzia, South Ossetia, Macedonia). Militant separatist groups do also not always welcome third parties as they generally rule out secession as a solution. In extreme cases, they may perceive the international actors as ‘foreign occupation’ (e.g., Kosovo, Bosnia). Role and behaviour of other external actors: the positive contribution of third parties also depends on the behaviour of other external actors. As Hampson (1996: 210) pointed out: “If key regional actors or outside great powers are hostile to the peace process, third parties will find themselves in an uphill battle in their efforts to make a settlement succeed.” The question is whether they can be urged to play a constructive role and whether their interests are considered in the peace process. This factor had been particularly relevant in Bosnia, where major states supported local groups militarily and politically (Croatia, Serbia, Islamic states). To a lesser degree, this was also the case in Northern Ireland (role of the American-Irish diaspora), for Macedonia (role of Kosovo-Albanians), and for South Ossetia (role of North Ossetia). Presence of spoilers: the outcome of third party activities can depend on the presence and behaviour of certain spoilers, be they locals or outsiders. For various reasons, spoilers have no interest in peace processes and try to undermine any negotiation and settlement, often by the use of violence (e.g., terrorist acts) and/or by organized crime. In all cases, we can pinpoint spoilers: terrorist groups are still active in Northern Ireland, Kosovo, and Mindanao; former warlords and criminals (including the influence of corruption) characterize the political and economic situation in the Balkans, in Georgia or in Moldova. The key question is whether third parties are able (in cooperation with the local elites) to either integrate these groups into the peace process or to marginalize them in a way that removes their ability to prevent progress. Both strategies have been applied in Northern Ireland with some success, important paramilitary and terrorist groups were included, while others were at least not able to undo the Good Friday Agreement, at least thus far.

B

Factors Related to the Settlement

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Indigenous solutions versus imported solutions: the more local parties can identify themselves with the solution found, the better for third party involvement. The settlement, assisted, brokered or facilitated by a third party, is accepted by the local parties as their ‘own’ solution and regarded as their own achievement. The agreement can thus not be denounced as an ‘alien idea’ or as ‘forced upon us’. In Northern Ireland, Gagauzia, and Bougainville, despite international involvement, the local parties finally had to take the

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decision themselves. In contrast, in Bosnia or Kosovo the settlements are largely seen as a result of international force and a significant number of local actors have not fully accepted these solutions. To a lesser extent, we can observe a similar situation in Macedonia and Ossetia. In both cases, the central government particularly feels forced by the international community to agree to solutions they otherwise would perhaps not have accepted. Inclusive versus exclusive solutions: the more a solution is inclusive, the greater the opportunities for successful third party intervention. The question is whether third parties are able to ensure a high level of participation at the negotiation table or at least through indirect and informal means (e.g. shuttle diplomacy, multi-track negotiations, secret channels). The aim has to be that all relevant actors are part of the agreement (including external actors such as neighbouring or kin states). The agreements or interim solutions in Northern Ireland, Bosnia, Bougainville, Macedonia, and Ossetia can indeed be seen as more-or-less inclusive, while in the cases of Mindanao (e.g., MILF and other extreme Muslim groups) and Kosovo (e.g., Serb government, neighbouring states) important actors are thus far not part of the settlement.

C

Factors Related to the Third Parties

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Mandate and authority: the impact of third parties often depends largely on their mandate and their authority. How and under what terms can they get involved? What are they allowed to do? Under whose authority shall international involvement take place? It is important that third parties have a clearly defined role, a realistic mandate, and a certain degree of authority and legitimacy. The latter can be assured by a mandate of an international organization (UN, OSCE, EU) and/or by the support of great powers (e.g. USA). If, however, third parties are invited by the local actors themselves, their authority and legitimacy may generally be higher. Examples include the cases of Northern Ireland (Mitchell), Bougainville (UN, New Zealand, and Australia), Gagauzia (OSCE), and Ossetia (OSCE). In the cases of Bosnia and Kosovo, on the other hand, one could observe the failure of various mandates that proved to be insufficient, too vague, or not supported by major players (e.g., UN activities in Bosnia 1992-1995). Commitment of third parties: in order to be successful, third parties have to show a clear and credible commitment when they engage in a conflict. This can imply political, financial, economic, or military commitments, including the risks for deployed international staff and soldiers. Often such commitments are high when third parties themselves have or develop a deep interest in resolving the conflict. For example, in the Balkans, the USA and the European states became increasingly committed to stopping the bloody wars and guaranteeing stability. This was particularly true of Macedonia, where the international community made its commitment to a peaceful solution very clear from the beginning. In a similar way, the USA and Australia

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along with New Zealand were deeply committed to the processes in Northern Ireland and Bougainville, respectively. By contrast, the commitment of the OIC in the Mindanao case seems to be somewhat lower profile and only on an ad hoc basis. Resources and capabilities available to third parties: third parties need to have the necessary resources and capabilities in order to broker peace or to implement an agreement. This factor is of particular importance when international actors have to engage in post-conflict peace-building, including the provision of a security guarantee. If none of the third parties involved is able to deliver basic needs, then it is most likely that the peace process will fail. In Bougainville, for example, the small UN mission could succeed because Australia provided the security guarantee wanted by the local parties. Often only states can offer such resources, most non-state actors and some international organizations (e.g., UN, OSCE) are usually under-financed or under-staffed, the EU is the notable exception in terms of its economic and political clout, but is still largely unable to provide security guarantees. As a rule, the more third parties have to engage, the more resources are necessary. This can be illustrated by the Balkan cases, on the one hand, and by Northern Ireland or Gagauzia, on the other hand. Coherence and coordination among third parties: since in most cases more than one third party is involved, it is absolutely necessary to act as coherently and in a as coordinated fashion as possible. This cooperation has to take place at various levels, between headquarters as well as on the ground. At the level of headquarters, it may include the regular exchange of information and early warning signs of crisis situations and, most importantly, the development of joint political approaches and platforms with regard to the conflict. On the ground, it is often necessary to share resources and information, to develop an appropriate division of labour and to appoint a leading third party. The case of Macedonia showed how a coordinated effort among third parties (EU, USA, NATO, and OSCE) could stop escalation and led to political solution. A similar coordinated approach by the main actors could be observed in Northern Ireland, in Gagauzia, and in Bougainville, whereas in Bosnia and, to a lesser extent, in Kosovo, mediation efforts by different third parties were neither coherent nor coordinated until the Contact Groups under firm USA leadership became the key players. In cases of implementation, as again best illustrated by the Balkan cases, coherence and coordination is a major requirement as the number of international actors (including NGOs) increases rapidly. Conclusion

The settlement of self-determination conflicts usually requires international involvement. Our case studies emphasize that third parties do indeed matter. They may not be entirely responsible for the resolution, but they can heavily influence the outcome – both in terms of the procedures as well as the contents. Since

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third parties are usually not in favour of secession, power-sharing regimes have become the preferred and most likely option for a political settlement. However, due to the complexity of these arrangements, third parties have to be prepared to engage for longer periods, sometimes even for decades, covering both settlement and implementation phases. Moreover, third parties have to fulfill a number of different roles: assistant, facilitator, mediator, monitor, coercive diplomat, arbitrator, or administrator. In a few cases, these roles can be played by the same actor, but normally more than one party is engaged. As has been shown, the most prominent and influential third parties are international organizations and states, and often both types of actors are involved at the same time and have to coordinate their approaches. The more pressure and force is needed, the more powerful states come into play. The more assistance, monitoring, arbitration, and interim administration is needed, the more likely IOs are to be in the driving seat. In the area of facilitation and mediation, both IOs and states can play an equally significant role, and in some rare cases non-state actors may also serve as a key third party (Northern Ireland). In many parts of the world, there is no alternative to third party intervention, as otherwise the conflict would spread and escalate. As a rule, however, third parties must be aware of the fact that every external engagement changes the opportunity structures for local actors and effects their behaviour. This does not mean that third parties are always beneficial and necessarily lead to positive outcomes. As has been seen, this depends on a number of conditions, some that can be managed by the third parties themselves, others that are beyond their reach. Typically, third party involvement includes some difficulties that can not be easily resolved but which the external actors should keep in mind before and as they engage. Firstly, international involvement is often caused by the use of violence by local actors. Indeed, third parties have been very reluctant to engage where a conflict is still characterized by the absence of violence or by small-scale violence. The warring sides may get the impression that violence pays off economically (due to international aid) as well as politically (due to international mediation), which may trigger further violence. Secondly, third parties may unintentionally increase the legitimacy of one side. International involvement may initially appear to imply the recognition of separatist movements and of militant groups as potential negotiation parties, a status generally denied to them by most central governments. Thirdly, third parties may be able to stop violence or to prevent further escalation, but very soon may run into serious problems and constraints when it comes to implementation. Either they are not prepared or adequately equipped to remain involved over the longer term. Furthermore, after a settlement, another crisis elsewhere may attract more attention, leading to the premature withdrawal of personnel and/or resources from still unstable regions. Fourthly, long-term involvement of international actors usually has ambivalent consequences. It can foster a subsidy mentality among the local actors when everything is provided from outside. Particularly in cases of comprehensive in-

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volvement, local elites are inclined not to take any responsibility, but can stick to their radical demands and positions, which thus prevents progress in implementation and makes any power-sharing arrangement unworkable. Fifthly, international actors simply cannot force local actors to share power. Power-sharing arrangements may be introduced under international pressure as in the Bosnian case, but they are unlikely to work under external pressure. Despite all these efforts, it is still up to the local parties to finally solve the conflict themselves and to accept the settlement. Lastly, there remains the great problem of exit. How and when should international actors leave or, at least, significantly reduce their engagement? Surely, third parties can not stay forever, but they should also not leave too early. Obviously, there is no easy answer to this particular problem. As a general rule, the more deeply involved international actors are, the longer they have to stay. More concretely with regard to power-sharing, third parties should stay at least until the power-sharing arrangement has passed its first serious tests – such as the second round of elections, the change of laws, the first use of veto powers, or the change of cabinet.

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Part Four Functional Power-sharing

Chapter 16 Education Mark Turner

I

Introduction Education produces knowledge, skills, values and attitudes. It is essential for civic order and for citizenship and for sustained economic growth and the reduction of poverty. Education is also about culture; it is the main instrument for disseminating the accomplishments of human civilization. These multiple purposes make education a key area of public policy in all countries. (World Bank 1995: xi).

Every person – child, youth and adult – shall be able to benefit from educational opportunities designed to meet their basic learning needs. (Article 1, World Declaration on Education for All, quoted in UNESCO 2000: 1)

These are compelling reasons for according education high priority in national development. Economic, political, cultural, and human rights arguments all support extensive and sustained investment in education. It is a key to human welfare in the broadest sense. In post-conflict situations, the urgency of investment in education is considerable. The Machel Report on the impact of armed conflict on children stresses that every effort should be made to maintain education systems during conflict and that re-introduction of education programmes is a “priority strategy” for post-conflict situations (United Nations 1996: 47). Fragile peace agreements and new political institutions need to be complemented by concrete development initiatives that restore or improve the services expected by the citizens of modern states. The speedy and efficient provision of these services can give legitimacy to fledgling leaders and public sector managers and offer promises of a better future. Education bears a major responsibility in reconstructing society, as it is that collection of institutions and organizations that develop “the human resources that determine the way a society functions” (UNICEF 1999: 4). There is no ‘one best way’ for the development of education in post-conflict societies. Each conflict and territory is different and post-conflict environments Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 503-530

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vary enormously. In some cases, the task may simply be to put back what was already there, but more likely it involves the reconfiguration of the system. In rare cases, the conflict may have had little effect on education, but in many instances there has been considerable destruction and disruption. Patterns of inequity in the educational system may even have contributed to the eruption of the conflict. Where fighting has been widespread, authorities are usually anxious to get children back into school as soon as possible. They want to reopen universities and get on with vocational education. But repairing the infrastructure and getting students into classrooms is only the first stage. Of equal, if not greater importance, is the determination of what will be the system of education. In most cases, the challenge is to simultaneously guarantee human rights while creating a modern educational system that delivers the quality products desired by parents, students, and employers. However, conditions for achieving such objectives are frequently unfavourable. Negative economic growth, budgetary pressure, population displacement are typical obstacles. In addition, peace agreements may not be final, while existing education systems may have already been ill-equipped to produce well-educated citizens to participate in a modern economy. This chapter examines how complex power-sharing agreements impact on education – what arrangements are made and how are they implemented. The leading issue is whether educational arrangements encourage reconciliation among conflicting parties or whether they reinforce ethnic divisions. There is invariably tension, even contradiction, between the desire for peace, which encourages integration, and initiatives to guarantee ethnic identity. The latter can emphasize ethnic divisions through policies such as educational segregation. The chapter starts by presenting the broad socio-economic context of each case. Following this are the individual case studies of educational arrangements in complex peace agreements. Finally, the cases are reviewed to determine what we can learn from them. There is a particular concern to identify lessons that can inform policy. II

Socio-economic Context

While all the case study countries and regions share the unfortunate legacy of conflict and war, there is some diversity in their socio-economic situations. This environment provides the context in which educational and other post-conflict development takes place. Education policy and management must deal with the very specific institutional, cultural, ethnic, and historical circumstances of each case. However, other broader factors, such as economic situation and demography, provide the more general context in which educational rebuilding and development occur. They place limits on, and may give direction to, policy initiatives in education.

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Table 1 Demographic Features and Human Development Index Country/ autonomous region

Population 2001

Bosnia and Herzegovina Kosovo Macedonia TFYR Gagauzia (Moldova) South Ossetia, and Abkhazia (Georgia) Northern Ireland (UK) Autonomous Region of Muslim Mindanao (Philippines) Bougainville (Papua New Guinea)

3,900,000 1,860,000 2,000,000 161,100 65,200 (SO) 525,000 (A) 1,685,300 2,745,000 200,000

Urbanization Life expec2000 (%) tancy at birth 2000 (years) 43 73 N/A 74.1 62 73 45 (M) 66 (M) 57 (G) 73 (G)

HDI ranking 2002 (n = 173) 99 82 65 105 (M) 81 (G)

77.3 (UK) 59 (P)

77 (UK) 69 (P)

13 (UK) 77 (P)

18 (PNG)

59 (PNG)

133 (PNG)

Sources: World Bank 2003; UNDP 2002a, 2002b, 2002c.

When examining some basic socio-economic indicators for the case studies there is no clear pattern that emerges. There are undoubted similarities between some countries and regions but few, if any, generalizations that can be made to cover all of them. Table 1 reveals the considerable demographic differences between the countries – with populations ranging from 3.9 million in Bosnia and Herzegovina to 65,000 in Abkhazia. The question this raises for educational autonomy is one of scale and affordability. Can smaller populations actually support a distinctive educational system with institutions at all levels and how far can that system vary from the country in which it is located without jeopardizing the educational opportunities of students? Urbanization figures range from an extremely low 18% in Papua New Guinea (PNG) (and lower in Bougainville itself ) to 77.3% for the UK. The Northern Ireland figure will be close to that for the UK as a whole. In all cases except Northern Ireland, there are substantial rural populations. Most figures in Table 1 are for the countries rather than the region but it may well be that the level of urbanization in affected regions is lower. For example, this is the case in Mindanao. Extending education and guaranteeing quality and conformity among dispersed rural populations served by infrastructure of questionable quality is far more challenging than organizing and delivering education in urban areas. Inequities between rural and urban education coverage and quality are common, even where conflict is absent. Such differentiation can be highly politicized when it reflects the distribution of ethnic groups. The fundamental health indicator, life expectancy at birth, finds half the countries clustering at the 73-74 years mark. But three countries are significantly below this level, with Papua New Guinea having a very poor 59 years. Poor health

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indicators are often associated with poverty and poor educational indicators. Certainly, they suggest challenges in getting children to school and keeping them there in a healthy state. Northern Ireland figures for life expectancy are far above those of all the other countries which emphasizes the gulf that separates rich and poor countries. When ranked on the UNDP’s Human Development Index (HDI), most countries are located in the mid-range human development category. For some countries, such as PNG, Moldova, and Georgia, the ranking has been declining both because of conflict and difficulty in managing economic and social transitions. This is not the most conducive environment in which educational development policies can be framed and implemented. PNG is especially worrying, as it has fallen into the low human development category. Once again, there is considerable contrast between all the countries and Northern Ireland as represented by the UK HDI. It lies in the upper reaches of the high human development category, placing it apart from the other case study territories. Table 2 Economic Situation Country/autonomous region

GNI per capita 2001 (usd)

Bosnia and Herzegovina 1,270

Growth of GDP per capita 20002001 (%) 0.2

Country economic status 2001

Kosovo

904

13

Macedonia

1,690

-4.7

Moldova (Gagauzia) South Ossetia and Abkhazia (Georgia) Northern Ireland (UK) Autonomous Region of Muslim Mindanao (Philippines) Bougainville (Papua New Guinea)

380 (M) 580 (G)

6.3 (M) 4.4 (G)

24,230 (UK) 1,050 (P)

1.9 (UK) 0.6-2.1 (M)

High income Lower middle income

580 (PNG)

-5.8 (PNG)

Low income

Lower middle income Lower middle income Lower middle income Low income Low income

Sources: World Bank 2003; UNDP 2002a; 2002b; 2002c.

Table 2 presents some basic economic indicators for the case study countries and regions. The Gross National Incomes (GNIs) of the case study countries and regions range widely, from the UK’s usd24,230 per capita to PNG’s usd580 per capita. In general, the economic statistics make grim reading. Three countries are in the World Bank’s bottom economic category of ‘low income’ while the remainder, with the exception of ‘high income’ Northern Ireland, qualify for the ‘lower middle income’ group. They are all well short of the usd2,975 boundary that separates them from ‘upper middle income’ countries. Some of the regions

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actually have GNIs below the average for the country, for example, Mindanao and Bougainville. What is also worrying is that the Gross Domestic Product (GDP) growth rates are often poor and sometimes negative. Poverty is associated with such economic conditions and can reach extremely high incidences – such as 68% of the population in the Autonomous Region of Muslim Mindanao that the Philippines government estimate live below the poverty line. Developing an education system in conditions of negative or sluggish growth from an extremely low level of economic development and with widespread poverty is always going to be problematic. Even where significant growth is occurring, it may be aiddriven and possibly unsustainable. Thus, the economic conditions found in most of the case studies are not conducive to educational development. This does not mean that educational development cannot take place. It does mean that ambitious goals for educational development may be impossible to achieve. Where post-conflict reconstruction is accompanied by rising expectations of welfare improvements among the population, policymakers and planners may face turbulent political conditions. III Case Studies A

Bougainville

At the time that the dispute between the Papua New Guinea (PNG) government and the Bougainville Revolutionary Army erupted into armed hostilities, the educational indicators for Bougainville were already below the national averages, and these in turn were below the average for lower middle income economies. The PNG average for children in the 7-12 years age group enrolled in Grades 1-6 was 77%, while for Bougainville (North Solomons Province) the figure was 71.9% (PNGDoE 1991). The average for lower middle income countries, which PNG was at that time, was 101% (World Bank 1992). Transition rates from primary grade 6 into secondary grade 7 on Bougainville were 29%, well below the 36% national average and distant from the average secondary enrolment figure for lower middle income economies. Quality of education varied throughout the country and within Bougainville, and may have declined despite increased investment in the 1980s (Connell 1997; Turner 1990). Already poor educational indicators plummeted to ever lower depths as war took hold and continued in Bougainville. There was widespread destruction of infrastructure and population movement. Supplies for schools dried up, teachers were in short supply, such that only a makeshift education system continued in the villages around the island – and then not for all villages. Secondary and formal vocational education largely ceased to exist. There were no universities on the island, only a university centre, which closed down by 1990. The situation was one of severe dislocation to education over a protracted period, leading Bougainville to the unenviable current status of having probably the worst educational indicators of any province in PNG.

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The 2001 Bougainville Peace Agreement (BPA) does not make any specific reference to education. It lists the functions that will be retained by the PNG government and then states that the powers and functions of the autonomous Bougainville government “include all known or identifiable powers not on the National Government list” (BPA Art 5(52) ). As education is not on the national government’s retained list, responsibility for it must therefore be invested in the autonomous Bougainville government. But it is not clear how much responsibility will be shouldered by the provincial government. In the rest of PNG, provinces deliver primary and lower secondary education but the national Department of Education still retains certain functions concerning regulation, standards, and curriculum. Universities are a national government responsibility. The Bougainville Peace Agreement certainly allows for the Bougainville autonomous government to assume more educational functions than would be the case for other provinces in PNG. For example, the Bougainville government have been given the authority to set up a “teaching service” and “an independent Salaries and Remuneration Commission” of its own. However, it has so far chosen not to establish these bodies, preferring to remain under the equivalent agencies of the national government of PNG. The rehabilitation of educational facilities, and the recruitment and training of teachers, is a major task for Bougainville, although the relatively small size of the territory and its population should make rapid progress possible. Foreign aid, either from bilateral donors or NGOs, has been crucial in providing resources for the rehabilitation process. A school building programme has already resulted in enrolment figures for primary education equalling or even exceeding pre-conflict levels. There are now more secondary schools than before the conflict. Grades 11 and 12, which are mainly undertaken in specialized high schools in PNG, are being tagged on to the normal grade 7-10 high schools. There are even some lowlevel technical and vocational education centres operating on the island. However, given the current sad state of the PNG economy and the country’s budgetary constraints, continued assistance from the international community will be essential for investment in education on Bougainville. The question of language in education does not appear to be problematic, despite Bougainville being home to approximately twenty different languages. Before the conflict there was provision for some primary education in these indigenous languages. A few of these tok ples (literally ‘talk of the place’) schools are still operating, but in general the language of instruction for primary and secondary education is English. This situation is likely to prevail as translation of materials and concepts and recruitment of sufficiently qualified teachers will be difficult, if not impossible, when such small numbers of native speakers are involved. Some of the teachers in the revitalized system have been recruited from the PNG mainland and are unfamiliar with local Bougainvillean languages. There could also be disputes about which language to use when secondary schools take students from more than one language group. The inevitable parental desire to give their children access to higher education and employment opportunities in the formal economy will also work to bring Bougainville’s education system into

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line with that of mainland PNG in areas such as curriculum, as well as language. The general PNG curriculum is currently being utilized in Bougainville and graduating secondary students have started to trickle back into mainland institutions of higher education. The missing component in Bougainville’s educational rehabilitation is the lack of special programmes for young persons who missed out on their education due to the disruptions of war. While some can be found as overage students in the new schools, there are many others who have received little or no formal education and have not attempted to catch up. At worst, they could become a lost generation of underutilized potential if no special educational provision is made for them. B

Mindanao

Disruption to education in the Autonomous Region of Muslim Mindanao (ARMM) has been sporadic in recent years. When conflict flares, such as in Maguindanao and Lanao del Sur provinces in 2000 or in Basilan in 2001, then people are displaced and schools temporarily close. Despite these violent episodes, there has been little destruction and damage of educational institutions since the fullscale hostilities of the 1970s. But the educational status of the ARMM population remains low compared to national averages. In 1997, the literacy rate for the Philippines was 95%, but for the ARMM it was 78% (NSO 2003). Another survey found only 61% of persons aged 10-64 in ARMM were functionally literate as against a national average of 84% (NSO 2001). The ARMM is the most disadvantaged region, in terms of education, in a country that places a high value on education. The peace agreement (Republic Act 9054) reflects this nationwide belief in the importance of education by promising to provide “a complete and integrated system of quality education” as “a top priority” of regional government. To accomplish this, the regional government is supposed to “adopt an educational framework that is meaningful, relevant, and responsive to the needs, ideals, and aspirations of the people in the region (RA 9054 Art 14(1)).” The peace agreement contrasts with others in that it devotes several pages to delineating aspects of education. In other peace agreements, there can be as little as one line dealing specifically with education. Despite the decentralization of many functions in the Philippines to sub-national governments, education remains a responsibility of central government. However, under the Mindanao peace agreement the responsibility for education in ARMM is moved to the regional government. The agreement talks of “an educational subsystem”, which will enjoy fiscal autonomy and academic freedom. A regional department of education manages the educational affairs of the region. Its powers, functions, and composition are defined by legislation in the elected regional assembly. The national Department of Education, Culture and Sports (DECS) maintains a regional office in the ARMM. The peace agreement sets down a list of principles and policies that should be adopted by the regional government in determining educational policy. There is a proviso that the regional government’s policies on education should be consis-

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tent with national policies. This is a fuzzy area. The degree to which the central government can intervene is not precisely delineated. Similarly unclear is the degree to which the central government must continue providing services if there is a lack of regional capacity. The agreement provides a long list of ‘principles and policies’ that should guide the region’s decision-makers. Some of the items are not compulsory while others are necessarily vague about implementation. They can be seen as reference points for policy making. The principles and policies in the agreement include the promotion of Filipino and Islamic values, peace values, culture, religious instruction, language of instruction, scholarships, vocational education, community participation, ethnic identity, basic education structure, materials, accreditation, teacher administration, curricula, and education management. Policy for education should be made in the Regional Assembly and by the Governor with and through the regional department of education. The regional structure of education follows the national structure – i.e., basic (primary) education seven years, secondary four years, non-degree tertiary one-three years, and degree courses four-eight years. There is a provision for the regional government to create its own structures. However, as the regional government must adopt the same “curricular years as those prescribed nationally”, this limits the room for manoeuvre (RA 9054 Art 14(7) ). The structure of private education follows that of the public education system. The religious schools of the Muslim madrasah system are also a component of the regional structure of education. The regional Department of Education is awarded the authority to develop curricula. They should be ‘relevant’ to the economic, social, political, cultural, moral, and spiritual needs of the region’s population. The capacity to develop curricula in the region is limited while parental pressure will ensure that curricula do not diverge greatly from national curricula as this might limit their children’s qualification for entrance to higher education institutions. While the marrasah schools are subject to the supervision of the DECS, they also appear to develop their own curricula. Efforts are currently being made by representatives of the major madaris to construct a unified curriculum and to integrate the madaris into the national education system (Bagayaua 2002). The production of textbooks is a joint responsibility of regional and central governments. In connection with the preparation of materials, the legislation refers to “agreed norms,” “academic freedom”, and “legal limits” but does not specify them. (RA 9054 Art 14(3)) There is emphasis on promoting Filipino, Muslim, and tribal minorities’ values. The importance of science, technology, and the latest advances in education are noted. Whether the region has much capacity for making significant contributions to materials production remains to be seen. In tight budgetary situations, it is possible that the national department will shoulder much responsibility. Donor-funded programmes may be utilized for regionalizing the materials. There is specific mention of the subject contents in social studies at secondary and tertiary levels with reference to the need to promote Filipino and Islamic values. The legislation clearly states that the provision of “learning aids and instructional materials” is a responsibility of the regional government. This appears to

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include items that are prescribed by the national government. Although not explicitly stated, it would appear that the regional government has the financial responsibility for all items, whether regionally or nationally prescribed. As elsewhere in the Philippines, the languages of instruction are Filipino and English. What Filipino actually is remains debateable but is likely in practice to be Tagalog, the language of Manila and central Luzon. Arabic is to be used as an auxiliary language of instruction and will also be taught as a subject in all levels as required for Muslims. It is optional for non-Muslims. For the madrasah educational system Arabic, is the recognized language of instruction. There is further provision for the use of other regional languages for instruction – there would be around ten of these languages. The development of a regional language is provided for but is highly unlikely to occur. In practice, there will be a continuing demand for English as the medium of instruction at the secondary and tertiary educational levels, as it enhances job opportunities both at home and overseas. Funds for education are provided by the national government to the regional government. The legislation decrees that the regional government will devote at least 15% of the recurrent education budget to scholarships for “poor but deserving students.” It is not specified what these funds will actually pay for. It is also not specified how the scholarships will be distributed among different types and levels of education. The legislation urges the regional government to seek scholarships from other foreign and domestic donors and to provide tax breaks for such donors. The regional government is also asked to provide assistance to “disadvantaged but deserving students.” There is no elaboration of how this provision should be implemented and no indication of where the necessary finances might come from. It remains to be seen whether the regional government can satisfy the requirements of the legislation regarding scholarships and still pay the other bills for the education system. As the ARMM has the highest incidence of poverty in the Philippines, most students fall into the category of “poor but deserving.” The legislation also makes reference to “the active participation of the home, community, religious organization and other sectors in the total educative process.” (RA 9054 Art 14(2)) How that is to be achieved is left to regional and local stakeholders. Regional government is supposed to fund “local education programs” but what these are is not specified. State colleges and universities are parts of the regional education subsystem. The legislation guarantees their academic freedom and fiscal autonomy and authorizes these institutions to continue under their existing charters. In July 2002, nine state institutions of higher education were counted in the ARMM (CHED 2002). Overall, the ARMM has the lowest number of higher education institutions of any region in the Philippines. The regional government has the right of representation on the boards of state universities and colleges in the region. There is mention of the possibility of a “tribal university system” but there is no indication of where funds might come from or what such a ‘system’ might look like. The regional Department of Education is responsible for the supervision and regulation of private schools. These schools can “organize themselves” and par-

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ticipate in deliberations of the department on relevant matters. There is provision for three private sector representatives, one each from the Christian schools, non-sectarian schools, and tribal minority schools, to represent their respective constituencies at these deliberations. The details of this formal consultative process are not specified in the legislation. Furthermore, there is no mention of the madrasah system, presumably as this is classified as part of the government system. The madrasah education system is for the Muslim majority in the ARMM. The system already exists. The new legislation basically reiterates national and regional government responsibilities. Accredited madaris are supervised by the national Department of Education. There should be a monthly report to Congress or Regional Assembly on the madaris and ‘periodic review’ by the national department. The regional government is given responsibility for strengthening the madrasah system and for conducting competitive qualifying examinations for madari teachers. Such exams facilitate the teachers’ appointment in the regional education system. The salaries of the madari teachers are paid by the regional government. At present, the regional and national governments are attempting to improve the skills of graduates from the madrasah system. Currently, their graduates have qualifications that are not recognized by the government and of little use to employers. Thus, the push is to “mainstream the madaris” by standardizing the curriculum, introducing new subjects and upgrading the teachers (Bagayaua 2002). Government may also be worried about the potential or actual role of madaris in ensuring they do not become “breeding grounds for terrorists” (Bagayaua 2002). Apart from the mention of a tribal university system, no other special arrangements are specified with regard to the indigenous tribal communities. There are many references in the peace agreement to respecting different cultures and to relevant curricula that could be used to create some distinctiveness among the schools for indigenous cultural communities. Religious education is optional in public schools. This does not apply to the madrasah system and schools run by Christian religious orders. The regional government is responsible for the selection, recruitment, appointment, and promotion of teaching and non-teaching personnel. Personnel are provided certain assurances regarding their positions. If they have appropriate civil service eligibility, they may not be replaced, removed, or dismissed without ‘just cause’. Also, while the region may define employment standards, these cannot be lower than the nationally prescribed standards. National minimum standards also apply to the selection, recruitment, and appointment processes of teaching and non-teaching staff at all levels of education. Whether such standards can be applied is debatable in such provinces as Basilan, where recruiting qualified teachers has been a major problem for years. While it appears that much of the responsibility for education has been decentralized to the regional government, the centre still has the opportunity to exert considerable control. Firstly, the budget for education comes from central government as part of the General Appropriations Act. This gives all interested

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parties at national level, both elected and appointed, the opportunity to participate in determining the allocation of funds. Secondly, central government education bodies have responsibility for monitoring compliance by the region with national education policies, standards, and regulations. Thirdly, the civil service guarantees regarding employment conditions apply in the ARMM. Fourthly, the madaris are specifically identified as being under central scrutiny. However, all of this monitoring, supervision, and compliance takes place in a context of state weakness. The capacity of the central state to exert its authority in many parts of the ARMM is very limited. This also applies to the regional government. Thus, some of the provisions in the peace agreement that delineate the structure and operation of the educational subsystem in ARMM may be illusory in practice. C

Gagauzia

According to the last census of population in Moldova, adult literacy was 96.4% (WEF 2000a). Primary education was compulsory and enjoyed almost universal coverage, while approximately 80% of the population aged 25-40 years had secondary and higher education qualifications. In short, Moldova had an education system at least equivalent to those of other former Soviet Union republics, which provided free education from pre-school to university level, which was judged ‘satisfactory’ and at least equivalent to its neighbours in coverage and quality. As education in Gagauzia was part of the national system, it can be assumed that school and tertiary enrolments and quality were roughly equivalent to national averages. Language represented a focal point for Gagauz nationalism and for the conflict between Moldova and Gagauzia. Although Gagauzians make up only 3.5% of Moldova’s population, they comprise 81.4% of the 161,100 inhabitants of Gagauzia. Most of them (92%) consider Gagauz their native language but 73% also use Russian as a second language (Järve 2001). Only 4% speak Moldovan, which is almost identical to Romanian. The introduction of Romanian as the “state language” in 1989 and the classification of Russian as “the language of communication” raised tensions in Gagauzia and Transdniestra, even though there were official guarantees concerning the protection and development of the Gagauz language and provision for public servants in Gagauz areas to be competent in Gagauz. The problem was that all Romanian speakers knew Russian but “not all Russophones were able to speak Romanian” (Järve 2001: 4). The Gagauz felt under threat. The ensuing struggles between the Gagauz and central state concluded with an organic law that gave Gagauzia the status of an autonomous region. According to the law, an elected People’s Assembly can issue laws, “within the limits of its competence,” within the fields of science, culture, and education. Also in the law are provisions for the Executive Committee of Gagauzia to draw up and implement programmes in education, culture, and sports, and to promote the use of the national language and culture of Gagauzia. The law does not explicitly decentralize all educational functions to Gagauzia. Indeed, the Gagauzian authorities must follow national programmes and standards as prescribed in the Law on Educa-

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tion 1995. They are, however, responsible for appointing school heads and teachers. A research unit has been established to elaborate the concept of ‘national schools’ for Gagauz and other minorities, while university and teacher education institutions in Comrat, the Gagauzian capital, are “preparing specialists for local institutions of education and culture” (Järve 2001: 26). While the spirit of the Law on Education is for a decentralized system of education open to world values, adapted to the economic needs of the nation, and compatible with the education systems in countries of the European Union, the practical difficulties are immense. The pace of decentralization has been slow, while investment to transform the education system has been inadequate. In September 2001, teachers in Gagauzia had not received their salaries for 3 months, while electricity in some schools was disconnected (Järve 2001). Over the whole of Moldova, the physical condition of schools has deteriorated as the government is unable to find the necessary finance from its budget. One estimate claimed that official allocations only covered 40% of budgeted current expenditures on education in 1999-2000 (WEF 2000a). Furthermore, 50% of all schools in Moldova needed repair work and about 33% of school libraries had been closed. There was a shortage of textbooks and items such as computers were old and/or in very short supply. Rural schools appear to be worst affected by these problems. To address the financial woes of the education sector, there have been steps to pass some of the monetary burden on to consumers. However, given the low income status of the country and debilitating record of negative economic growth (-9.5% per year in 1990–2000), it may prove difficult to shift financial responsibility without discriminating against a large proportion of the population. Foreign aid has filled some of the financial gap in education and has provided much needed technical assistance. The World Bank, UNICEF, the European Training Foundation, and the Soros Foundation are among the leading donors. As expected, the language issue is prominent in debates and decisions on education. The overarching Moldovan Law on the Use of Languages guarantees the provision of secondary, non-specialized intermediate studies, specialized technical and intermediate studies, and higher education in Moldovan and Russian. The provision on other languages, such as Gagauz, is less specific. The national government is tasked with creating the necessary conditions for these other nationalities to receive education in their own language. There are practical difficulties with implementing the legal provisions on language in education. Gagauz has a short history as a written language, dating back only to 1957. Many adults do not have literacy in the language – only 37.8% in 1998. Furthermore, there is a strong preference for parents to want their children’s education to be conducted in Russian (80.6%), presumably as it opens up better opportunities for further studies and employment (Järve 2001). In order to satisfy all the stakeholders in the language debate, schools in Gagauzia teach three compulsory “local official languages” (Järve 2001). Children must also learn either English or German as a foreign language. This results in a situation where students spend large amounts of time studying languages but mostly fail to reach a high degree of proficiency in any of them.

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D

Abkhazia and South Ossetia

According to a UNESCO report, the educational system inherited by Georgia from the former Soviet Union was “rather good” (WEF 2000b). Primary and secondary education were mandatory and free, teacher training was “well developed” and educational standards were “sufficiently high.” However, there were concerns that a passive approach to learning and ideological conformity resulted in a lack of creativity and critical thinking, and difficulty in the practical application of knowledge. The situation in Abkhazia and South Ossetia would have been little different than that prevailing over Georgia as a whole as long as the country remained a Soviet Republic. The ethno-nationalist conflicts in Abkhazia and South Ossetia resulted in massive disruption and destruction of the education system in these two territories. Approximately 250,000 persons, mainly of Georgian ethnicity, were displaced from Abkhazia, and about 60,000 Georgians and Ossetians from South Ossetia. For many children, this meant a complete cessation of education. In the two territories, the infrastructure of education was severely damaged. According to one report, about 70% of Abkhazian educational institutions were burnt or looted, and are in need of major repair work (Kamkia 1996). Text books were in short supply, but even when available were outdated and inappropriate for a modern education system. Prior to the hostilities there were 300 pre-schools but by 1996 only 20 were operating. Similarly, in South Ossetia, the education system lacks the essential infrastructure and equipment to function effectively. In Abkhazia, the Georgian education system was completely closed down. Teaching of Georgian language, literature, and history were banned, and Georgian schools ceased to operate. In 1992, there were 122 Georgian schools, 58 in the Gali region, while today there are none according to Georgian authorities (Global IDP c.2002). There are teachers working “in clandestine circumstances”, reportedly at great personal risk to themselves and their students. A little progress has been made with the matter being discussed by the working group of the UN-sponsored Coordinating Council and the reported introduction of ‘elective’ courses in Georgian into one Gali school (Global IDP c.2002). The various ‘peace’ documents that have been signed over the past decade say little about education. They have minimal details on how functions or powers should be distributed between the different territories. They only go as far as identifying or suggesting ‘target areas’ that can be discussed. The mechanisms established for negotiation have failed to make any progress in power-sharing on education or any other functional area concerning service delivery. As Tsikhelashvili (2001) argues, there still seems to be a focus on how to monopolize power rather than to share it. This stalemate takes place in the context of inadequate funding for education and dismal economic performance. Many of the costs for education, such as teachers’ salaries, are paid by parents or through the activities of international aid agencies. The budget is simply not available to attain the objectives of educational reform and performance envisaged in Georgian policy

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documents. Agreement on who does what is an essential first step that has yet to be taken. E

Macedonia

Macedonia’s education system is considered to be in reasonably good condition. Starting from an extremely low base after the Second World War, there was considerable expansion under the socialist regime. Universal primary education was attained, access to secondary schooling was considerable, while there were good opportunities for entry into tertiary education. Education was free and apparently valued by the population. The gains have been maintained to the present, with good educational coverage, high enrolment figures, and sustained efforts to upgrade all levels of education to bring them into line with European standards. The gross figures for enrolments do conceal some inequalities between the majority ethnic Macedonians and minority groups. The latter are under-represented at secondary and university levels, and comprised only 16% of the university population of Skopje and Bitola in 1998-1999 despite the raising of university quotas (Daftary 2001: 6). Inequality is even more pronounced among students studying abroad, 89.2% of whom are ethnic Macedonian (MO c.2001). The major divide is between ethnic Macedonians and Albanians. According to statistics based on the 1994 census, Macedonians comprise 67% of the population and Albanians 23%, although Albanians claim their numbers are understated (MO c.2001). The other minority groups collectively comprise only 11% of the population, the largest group being ethnic Turks at 4%. Language is at the core of the dispute between the Macedonians and Albanians, with the latter wanting their language to be recognized as an official language alongside Macedonian. This Albanian demand was granted in the 2001 peace agreement (Framework Agreement, FA) under the provision that any language spoken by “at least twenty per cent of the population” (FA 2001 Art 6.5) qualified as an official language. Albanian is the only qualifier from among the minorities. The Agreement also affirms that “the official language throughout Macedonia and in the international relations of Macedonia is the Macedonian language” (FA 2001 Art 6.4). The Agreement states that primary and secondary education will be provided by the state in the students’ native language(s). It would appear that the Macedonian language will continue to be taught to other nationalities, although this is not mentioned in the agreement, but is stated in Article 48 of the Constitution. The Agreement appears to represent a reaffirmation of the constitutional provisions that every person has a right to education and that education is available to everyone under equal conditions (MMoES 2001). Article 48 of the Constitution, which deals specifically with education and ethnic minorities, states that “the representatives of the ethnic minorities have the right to education in their languages in the primary and secondary education in a way determined by law.” (FA 2001 Art 6.1). This will ensure the continued segregation of education according to ethnicity. For example, in 1999-2000 there were ninety-two Macedonian high

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schools with 76,132 students, twenty-two Albanian schools with 14,353 students and four Turkish schools with 598 students (MO c.2001). Central control of education is asserted in the Framework Agreement through the requirement that uniform standards for academic programmes will be applied throughout Macedonia. The Ministry of Education and Science (MoES) proposes regulations, decides on curricula, inspects institutions, enforces rules, and approves such things as textbooks. The bureaucracy of education is centralized. There is community participation in the management of pre-schools and on the school boards of primary schools. There is also an article (3.1) in the Agreement that prescribes a revised Law on Local Self-Government. Such a law is intended to ‘reinforce’ the powers of elected local officials and increase their ‘competencies’. Among the listed competencies or functions is education. The intention appears to be the decentralization of authority and functions to sub-national units, with the assurance that adequate funding will be available to cover the costs of the new responsibilities. But decentralization is not popular among ethnic Macedonians, 66% of whom equate it with the eventual dissolution of the state (Daftary 2001: 21). The revised Law on Local Self-Government is yet to be adopted and “conditions for implementing any form of power-sharing in Macedonia are highly unfavorable at present” (Daftary 2001: 19). It appears that education will continue to be run along ethnic lines with concessions to minorities, but with Macedonian re-affirmed as the dominant official language. The centralized bureaucracy of the MoES will manage education and maintain its array of policies to upgrade the system to bring it into line with European standards. In its UNESCO-sponsored account of education in Macedonia, the MoES provides technical detail of the structure and operation of the education system (MMoES 2001). It also utilizes the latest education terminology in describing its policies and programmes for “education and learning strategies for the 21st century” (UNESCO 2001: 27). But the report rarely, if ever, ventures into the territory of power-sharing. Ethnicity is mentioned in passing, but as a technical matter and not as an issue concerning the determination of decisions about education. The report’s avoidance of ethnicity is in great contrast to the battles that continue to be fought over higher education in Macedonia. The two national universities have enrolled far fewer Albanians than quotas allow. This is due to most courses being taught in Macedonian, except in teacher training. Macedonian is only taught as a second language in Albanian high schools and often not particularly well. Indeed, the Albanian school system fails to attract the brightest and best teachers because of the poor living conditions in rural areas where the majority of Albanians reside. Albanian under-representation in universities is compounded by high drop-out rates. The Albanian solution was to set up their own university in Tetovo in the Albanian-dominated northwest. The university was and remains privately funded by the Albanian community and student fees. However, the government has refused to recognize the legality of the university or its qualifications. Poor professional qualifications of lecturing staff have been alleged, as have inadequate curricula.

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However, there appear to be deeper reasons for the impasse. The government has been influenced by Macedonian fears of secession, the creation of a greater Albania, or simply by perceived threats to Macedonian society. One response, strongly endorsed by foreign donors, has been to establish the South Eastern Europe University at Tetovo with instruction in Macedonian, Albanian, and English. Despite substantial investment, the university has not attracted the anticipated numbers of students. Meanwhile, the conflicts over the University of Tetovo continue, with the government in 2003 indicating a possible willingness to move towards formal recognition. Ironically, intra-Albanian political battles have contributed to slow movement towards agreement. F

Bosnia and Herzegovina

The legacy of socialist rule in Bosnia and Herzegovina was an education system that provided broad access to pre-school, primary, and secondary education, and substantial participation in higher education (CoE 1999). In common with other socialist systems, “curricula and teaching methods reflected socialist values that stressed conformity and the acquisition of fact and political loyalty over critical thinking” (CoE 1999: 5). However, the ‘self-management’ concept of the former Yugoslavia differentiated it from its socialist neighbours and provided a participatory model, which may have even encouraged nationalism. Although Bosnia and Herzegovina had a tradition of centralized curricula, the conflict resulted in educational fragmentation, with the combatants “promoting their ideological and political goals through the provision of nationalistic textbooks and curricula” (CoE 1999: 7). Often, one group’s material was offensive to another. Thus, the 1995 Dayton Agreement for peace reaffirmed an ethnically fragmented pattern of education. The Dayton Agreement identifies the functions belonging to national government. It is a modest list that contains only those functions needed for Bosnia and Herzegovina to operate as an internationally recognized state; for example, foreign policy, customs, immigration, and air traffic control. Along with other service functions, education is a responsibility of the two component ‘entities’, the Federation of Bosnia and Herzegovina and the Republika Srpska. There are no details in the Agreement, simply the statement that: All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities.

Thus, the way in which functions such as education are managed is for the Entities to decide. In the Federation of Bosnia and Herzegovina, responsibility for education is devolved to the ten cantons. In some instances, there is provision for further devolution to the municipal level, particularly where disputes arise over access to education in a particular language. Each canton can determine all educational matters, such as curricula, textbooks, and regulations. This has led to the politicization of education along nationalist lines. It is alleged that many

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‘educational’ decisions are determined by nationalist considerations (CoE 1999: 9). Curricula can thus reflect the nationalist ideology of the dominant group in a canton. One recent report states bluntly that “far too often schools in BiH are still being used to spread ethnic hatred, intolerance and division” (OHR 2001d). Another commentator noted that “despite some progress having been achieved over the past year, discrimination, segregation and bias continue to dominate education in BiH” (Global IDP 2001). But the structure of education and broad curricula content remain remarkably similar and can be accessed by nationalist minority students as long as they conform to the cultural and religious views of a school’s dominant nationality. The decentralization of education to the canton level was part of an overall policy of decentralization that seems to have been poorly designed. As has happened elsewhere, decentralization is sometimes undertaken without due consideration of the capacity of sub-national units to perform the decentralized functions efficiently and effectively. Patterns of inequity may also be entrenched (Turner 1999). In Bosnia and Herzegovina the cantons possess “a complex mix of institutions, often with competing aims, roles, and functions and with limited technical and financial expertise” (CoE 1999: 10). A further unsatisfactory aspect of decentralization in Bosnia and Herzegovina, is “the lack of requirements for cooperation and coordination and the lack of institutions which could facilitate these goals” (CoE 1999: 10). In contemporary development policy and management, there is much effort to promote partnerships between stakeholders and to foster interorganizational cooperation in order to enhance performance. These considerations and practices appear to be absent in Bosnia and Herzegovina. One of the outcomes of the Dayton Agreement is the extremely weak position of the Federation Ministry of Education (FMoE). This contrasts with other decentralizing countries where ministries of education often retain considerable control or influence over such matters as curricula, standards, general policy and inspection. The Dayton Agreement facilitated not only the transfer of the authority for education to cantons, but also paved the way for the finance of education through canton-level tax revenue. Thus, the FMoE can only aspire to a coordination role. In practice, even this is only possible in Bosniak-majority areas, and then only to discuss such things as textbooks or common programmes. Croat interests are pursued outside the FMoE. But, even with the Bosniak cantons, FMoE simply duplicates their expertise while failing in normal national tasks such as policy research, planning, and monitoring. The FMoE suffers from a familiar decentralization failing of being unable to adjust from being a central agency based on directing activities and securing compliance to an agency that loosens its grip in such matters while becoming a facilitator. The organization of education in the Republika Srpska stands in great contrast to Bosnia and Herzegovina. In Republika Srpska, responsibility for education is centralized in a newly created Ministry of Education (MoE). What the cantons do in Bosnia and Herzogovina the MoE does in Srpska. While the MoE is the unchallenged formal authority in education, severe budgetary problems and ‘political discord’ in the eastern parts mean that its influence is much less in prac-

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tice than in theory. The curricula and textbooks used in Srpska ‘closely resemble’ those in the Republic of Serbia, although there is apparently little substantive support from there (CoE 1999). There has been considerable international assistance for education in Bosnia and Herzegovina. Such aid was essential for the rehabilitation of physical infrastructure. Over 60% of educational facilities were damaged or destroyed during the war. International agencies such as the World Bank, UNESCO, the European Union, and the Council of Europe, as well as NGOs have participated in the aid effort. High levels of investment in physical infrastructure have now been replaced by projects concerned with improvements in teaching and systemic reform. For example, the Office of the High Representative has listed essential ongoing reform efforts as textbook review, curriculum reform, freedom of movement in the education system, efficiency in institutions of higher learning, and removal of discrimination against minority groups (OHR 2001d). The latest initiative in education has been the release of an educational reform package subtitled “to give BiH a better future” (BiH 2002). It has been ‘applauded’ by the Organization for Security and Co-operation in Europe (OSCE) which coincidentally coordinated the work for it. The document consists of fine-sounding pledges, which will assist in creating an educational system which is de-politicized, equitable, modern, and of high quality. There are many laudable objectives, but recent history suggests that programme designers and implementers will have to overcome formidable obstacles to achieve them. G

Kosovo

In 1945, Kosovo’s Albanian population began to receive education in their own language. Previously, there had only been limited education in Serbian. Under the Socialist Federal Republic of Yugoslavia, there was considerable improvement in educational indicators. 74% of Kosovo’s Albanian population were illiterate in 1948, but by the late 1980s the figure had been reduced to only 10% (OECD 2001). But educational conditions for the Albanian population deteriorated quickly with the removal of Kosovo’s autonomy and the assumption of all power by Kosovo Serbs as “Albanian managers, professionals, teachers, doctors and academics were removed from their posts or left the province” (OECD 2001: 7). The Serb authorities imposed a Serbian curriculum, shut down Albanian textbook producers, ceased financing Albanian schools and sacked 23,000 Albanian teachers. To fill the educational vacuum, the Albanian population organized an unofficial selffinanced ‘parallel’ system of education (Kostovicova 2002). In 1998, there were 266,400 primary school pupils, 58,700 secondary, and 16,000 university students in the parallel system (OECD 2001: 7). Quality of education declined under these makeshift arrangements and enrolments dropped at all levels. Even the Serbian system received inadequate funding and many facilities were in poor condition. The situation was exacerbated by the destruction of schools in the 1998-1999 hostilities. 290 schools were destroyed and 800 suffered damage (OECD 2001).

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Attempts to rebuild the shattered education system began with the establishment of the Department of Education and Science (DES) under the United Nations Mission in Kosovo (UNMIK). A school rebuilding and repair programme and the use of temporary facilities allowed most Kosovan students to return to school in the 1999-2000 academic year. In order to coordinate the rehabilitation of the education system, UNMIK adopted a strategy of ‘lead agencies’. This involved international aid agencies taking responsibility for specific tasks under UNMIK’s direction. In early 2002, in line with UN Security Council Resolution 1244, a new Ministry of Education, Science and Technology (MEST) was created and management of most educational functions handed over to it (UNDP 2002b). The MEST is divided into two departments – Education and Central Administrative Services. The Education Department deals with matters of policy and operations at all levels of the system while the Central Administrative Services Department deals with finance, human resource management, outreach and information activities, and infrastructure. The peace agreement had little to say on education. The 2001 Constitutional Framework for Provisional Self-Government (CFPSG) stresses freedom, human rights, and the rights of ‘communities’. Among these rights is that the communities can establish educational institutions “in particular for schooling in their own language and alphabet and in Community culture and history” (CFPSG 2001 Ch 4.4 j). There is a proviso that such initiatives should show tolerance and respect for other communities. The provisional institutions of self-government are awarded responsibilities in the fields of education, science, and technology, and the assembly can pass laws in these field. Working out how these fields would be organized and what policies would be put in place were matters left to the peacetime authorities. UNMIK got the ball rolling with its rehabilitation programme and with the drafting and issue of various regulations to shape and manage the emerging system. The establishment of the autonomous DEST in 2002 marks the assumption of full responsibility for education by Kosovan authorities. However, because of the difficulties of building a modern education system, it has been observed that “the solution is to prepare the system for a long period of emergency status” (OECD 2001: 12). The determination of a realistic and coherent education policy is still in process. For example, the New Kosovo Curriculum Framework is strong on good intentions but short on how they will be achieved. The new curriculum seeks to reflect the multicultural composition of Kosovo, accommodate difference among students, link to new development in science, and use up-to-date teaching methodologies. The New Kosovo Curriculum Framework does contain a core curriculum, which will be subject to external evaluation and will provide the preconditions for further studies. It contains compulsory subjects and indicates such things as minimum number of hours per week and basic contents in each subject. The elective part of the curriculum allows “for the existence of a differentiated approach” (DES 2001: 19). In reality, many problems remain. Despite expressed desires to decentralize some education functions, there is still a high degree of centralization. The Ram-

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bouillet Agreement of 1999 even identifies the provision of education as a commune responsibility; a matter not mentioned in the subsequent Constitutional Framework of 2001. The MEST operates through its central office in the capital and through its deconcentrated offices in five regional administrations. There has been a heavy reliance on external advisers under UNMIK, while it is not clear how Kosovan teachers are to learn and adopt new teaching methodologies and knowledge. Over 30% of teachers already lack the necessary qualifications for their profession (UNDP 2002b: 55). Talk of aspiring to European standards and methods may be an unrealistic goal given the environment for education in Kosovo. Teachers’ salaries are low and likely to remain that way, although they consume 80% of the education budget (UNDP 2002b: 51). Many teachers seek additional jobs or leave the profession, while the poor terms and conditions of teacher employment discourage young adults from entering the profession. Educational managers with the required skills are scarce. Student drop-out rates are problematic – at primary level the figure is 7% but at secondary it is up to 34% (OECD 2001). Supplies for schools are constrained by harsh budgetary conditions. There has been a heavy reliance on foreign aid in the post-conflict years, but these levels of support are unlikely to be maintained. Government management of finance in Kosovo is in its infancy with numerous matters still to be resolved. Fiscal decentralization with accompanying functional decentralization of education to municipalities is sometimes promoted as a way to bring about greater equity in resource distribution and efficiency in its usage. However, the lack of good financial management systems and differences in administrative capacity at municipal levels would make such a move a very risky venture. Decentralization has also been identified as a way to utilize local initiative and energy, but central government has been reluctant to devolve authority for managing education to the municipalities (UNDP 2002b; OECD 2001). A major problem in Kosovo’s evolving education system is a persistent one – how to accommodate the different ethnic communities. Some groups are still favoured over others (OECD 2001). In 2000-2001, Kosovo’s primary schools taught 303,590 students in four languages – Albanian (92.3% of students), Serbian (5.2% of students), Bosnian (1.3 per cent of students) and Turkish (0.7% of students). There is no integrated curriculum, as each community obtains its resources from different systems and locations. Only 22 of the 541 primary schools in Kosovo teach in more than one language and even then each language group is taught in separate parts of the schools. Moving towards greater integration of the education system is a declared priority for Kosovo, but may be difficult to obtain as divisive ethnic politics are still prominent. There have been concerted efforts to modernize Kosovo’s one university, the University of Prishtina. Approximately 10% of the total Kosovan population in the 19-25 years age group attend the university (UNDP 2002b: 56). All teaching is in Albanian, but legally instruction could be given in other languages. Administrative and curricula changes have been undertaken, but, as has been found in vocational education, the existing fields of specialization and courses do not

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necessarily represent the skills required in the Kosovan economy. There are no private institutions of higher education. H

Northern Ireland

The educational experience of Northern Ireland contrasts greatly with the other case studies. Firstly, Northern Ireland’s education system has been very little disturbed throughout the long conflict. Although there have been 3,600 deaths and 30,000 casualties since the eruption of hostilities in 1968, this environment of violence has not disrupted the delivery of education (IBE 2003). Schools have not been destroyed, damaged, or closed down by the conflict, and there has been no significant displacement of population. A second distinguishing feature of Northern Ireland’s education system is its level of resources. In the other cases, there were resource constraints, often severe, which hampered efforts to reconstruct or develop education. Northern Ireland has assets and recurrent spending typical of other Western European countries. There has been a pattern of sustained investment at levels far higher than in the other case-study territories. Northern Ireland is a high income country with a high cost education system. There are schools, colleges of further education, teacher training institutions, schools for specialist needs, and two universities. Indicative of the country’s high income status is the Classroom 2000 initiative, in which each pupil is expected to have access to a computer. Such aspiration is unthinkable in other post-conflict territories such as Bougainville, Mindanao, and Gagauzia, where finding a computer in any classroom is unlikely. The administrative complexity of education in Northern Ireland reflects the system’s size, maturity, and degree of specialization, as well as its religious segregation. Ten statutory bodies are required to run education in the province. The overarching statutory body is the Department of Education, which is responsible for central administration and dispensing an annual budget of about gbp 1.3 billion. The department follows the UK’s penchant for results-based management and the measurement of performance through a Service Delivery Agreement that contains the department’s objectives, targets, and actions to achieve the latter. The idea of continuous improvement is incorporated into the Service Delivery Agreement methodology. Northern Ireland is divided into five Education and Library Boards (ELBs), which operate as local education authorities. They ensure that there are sufficient schools and colleges of further education to meet area needs and channel the finance from the Department of Education to maintain the schools that fall under ELB management. The amount of funding is determined by the Assessment of Relative Need Exercise, an instrument which employs a range of indicators but especially pupil population. The ELBs also have the tasks of ensuring that the schools are equipped and maintained, monitoring school attendance, providing curriculum advice, and regulating the employment of young persons. Another significant statutory body is the Council for Catholic Maintained Schools (CCMS). It is responsible for the employment of teachers in Catholic maintained

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schools and undertakes some advisory functions. All of its funds come from the Department of Education. In Northern Ireland, education is compulsory and free from ages four to sixteen. It is also free for students opting to stay on until the age of eighteen years. The schools of Northern Ireland increasingly operate under the decentralized governance of boards of governors. Schools teach a common curriculum, but there is pronounced segregation along religious lines – Catholicism or Protestantism. The ELBs provide the funds to Controlled schools, which are typically Protestant, and to Voluntary Maintained schools, which are typically Catholic. In addition, there are Voluntary Non-Maintained schools, mainly selective grammar schools which are usually Protestant. The selection for secondary school in Northern Ireland is still determined by examination taken at the end of primary school and known as the ‘11-plus’. It seems that this long-standing system of selection will change. A Review Body on Post-Primary Education was established by Northern Ireland’s education minister in 2000 to make recommendations on the future structure of post-primary education in Northern Ireland. The Report by the Post-Primary Review Body (RPPRB, commonly known as the Burns Report) was published in October 2001 and recommended scrapping the 11-plus and, among numerous other suggestions, urged the creation of a ‘collegiate’ system “where schools would retain their independence, but cooperate in 20 clusters across Northern Ireland” (Woodward 2002). The support for ending the 11-plus is strong, but there is steadfast opposition from at least two major loyalist parties in the Northern Ireland parliament. Even among supporters of the 11-plus’s abolition, there is widespread disagreement about the future shape of the education system. Major political decisions on this matter are still awaited. Another significant development has been the growth of integrated education, that is, schools which have no religious affiliation. In 1990, the Department of Education was given the statutory duty to encourage, facilitate, and fully fund integrated education. At present only 5% of students in Northern Ireland attend integrated schools, a figure which emphasizes the embedded nature of segregation in education. At the curriculum level there are also efforts to address negative stereotypes of people from the ‘other’ group that are established early in childhood. Various organizations have cooperated to produce a curriculum called Local and Global Citizenship, which is expected to become a statutory part of the common Northern Ireland curriculum in 2006 (IBE 2002). Finally, there has been modest growth of schools utilizing Irish as the language of instruction. The Department of Education has the duty to encourage, facilitate, and fund such schools. According to the department, there are now thirteen primary and one secondary school of this type, and seven dual-language primary schools (DoE 2003).

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II

Conclusions

A

Socio-economic Development

The case study countries and regions vary widely, between high income Northern Ireland and low income Bougainville. The economic difference is enormous. However, most of the countries have poor economic indicators, a fact which can threaten the aspirations to develop a well-resourced modern education system. The question arises about how such countries can make significant investments in educational improvement while extending coverage. When GDP per capita is low and in decline, budgets are stretched and investment capital in short supply. Sometimes teachers may be unpaid for months and there is no money for school supplies. In such circumstances, it is often impossible to make significant gains in the pursuit of a high quality education system. By contrast, in high income Northern Ireland there has been sustained investment and guaranteed payment of recurrent costs to ensure that both coverage and quality of educational provision remain at the levels associated with advanced European economies. B

Levels of Disruption

The case studies reveal different degrees of disruption to the education systems. In Bougainville, almost the entire educational infrastructure was destroyed, necessitating a considerable rebuilding programme. In other places, such as Kosovo and Bosnia and Herzegovina, many schools were destroyed or damaged. In Abkhazia, about 70% of schools were burned or looted. Physical damage in Mindanao mainly occurred in the 1970s, but population displacement still occurs after major engagements between government forces and Muslim insurgents. Macedonia has escaped major disruption to its education system as has Northern Ireland where the education system continued to operate throughout the many years of conflict. Where massive population displacement has occurred this has created the subsequent problem of return and re-integration. In some instances, this process is by no means complete. The differing degrees of disruption mean that territories commence their efforts to rehabilitate and develop their education systems from different starting points, and obviously some are more advantageous than others. Where population displacement has occurred, educational planning is conducted in conditions of high uncertainty about future demands on the system. C

Contents of Peace Agreements

In general, peace agreements say little about education. They normally make reference to equity and human rights and give guarantees that education will be accessible to all. In some instances, there is specific mention of respecting the rights of all communities or minorities. But instructions about what the education system should look like are absent from all but one peace agreement in these

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case studies. The task of providing education is usually allocated to a relevant authority, and this delegation may involve no more than one line of text. A possible interpretation of such minimal treatment is that education is regarded as an unimportant issue. This is plainly not the case in any of the territories. Education is important to governments and citizens. The urgency to get peace agreements signed means that there is a strong imperative to leave the details of service delivery until later. Functions such as education are allocated to post-conflict authorities for them to determine policy and organization at a later date. In the case of Northern Ireland, education continues its incremental development, although the peace agreement has led to more radical proposals and wider debate about the nature of educational change. The exception to this pattern is Mindanao. The peace agreement for the autonomous region went into several pages of details about the division of responsibilities for education among different levels of government, the structure of the education system, finance, the role of private education and many more matters. The nature of the process which led to the final agreement is perhaps why such an approach could be taken. In the protracted negotiations, there were committees on specific fields, that fed recommendations into the main committee. Also, many items were reiterations of the earlier peace agreement. This process of attending to many of the details of educational arrangements has the benefit of anticipating problems and dealing with them in advance. Wider usage of such a technique will depend on the urgency of securing a peace agreement and the willingness of conflicting parties to negotiate and make concessions. D

Language, Religion, and Segregation

A major concern in many of the case studies is the language of education. Often, there is an imperative to guarantee the rights of minorities to receive education in their own language. In some cases, language has been a central issue in the conflict. For example, in Kosovo, where Serbian authorities closed the Albanian system; in Macedonia, where Albanians wanted their language to be recognized as an ‘official language’; or in Gagauzia, where tensions were raised by Moldovan language policy. While there are provisions in Kosovo, Bosnia and Herzegovina, Gagauzia, and Macedonia for minority language rights in education, they are not always fully implemented. Such situations can reflect either a politics of obstruction or a lack of capacity in the system to cope with the terms of the agreements. What is clear in post-conflict arrangements is continuity in ethnic or religious segregation, despite rhetoric about integration. In Abkhazia, the parties have yet to get as far as an agreement on language in education and a ‘clandestine’ system of education for the Georgian minority operates. In Northern Ireland, despite efforts to promote integrated schools, such non-sectarian institutions still only account for 5% of school students. Ironically, in the most linguistically diverse case study, Bougainville, language does not appear to have been a divisive issue. Ples tok (the local language) continues to be used in the early grades where local teachers are available, but in general it is English that is used in both primary and

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secondary levels. In Mindanao, the major linguistic concern of the Muslim population was the use of Arabic in the madrasah system. But this was not disputed and Arabic has been used for many years in these schools. Filipino and English are used in the mainstream system, as they are keys to progress in education and the job market although many people in the ARMM use local languages in their everyday communication. Mindanao does demonstrate how language and religion often go together. In other cases, language and religion together demarcate one group from another and lead to segregation of education. Northern Ireland is in contrast to other case studies in this regard. While religion is a major determinant of which school a student attends in Northern Ireland, the conflicting parties are not separated by language. All speak English and almost all are taught in English, despite official support for Irish-language schools. E

Education for Peace

The formal education system has the opportunity to make a major contribution to the promotion of peace between communities in conflict. Through curricular innovations it should be possible to encourage greater understanding of different communities and ameliorate hostility between them. Thus, in Northern Ireland there is the Local and Global Citizenship Project, which aims to contribute to consensus-building in a deeply divided society. The promotion of integrated schools pursues similar aims. In Mindanao, the peace agreement states that the formal education system is responsible for “inculcation of values of peaceful settlement of disputes” (RA 9054 Art 14(2b)) and elsewhere recommends teaching about “the cultures of the Muslims, Christians and tribal minorities” (RA 9054 Art 14(2d)). Additionally in Mindanao, Northern Ireland, and elsewhere, NGOs have been active in promoting peace education on a less formal basis. Even when officially promoted, education for peace is a difficult task. In Northern Ireland, there has been very slow progress in attracting students to integrated schools. In Mindanao, stereotypes of other nationalities are deeply embedded and sporadic violent encounters serve to re-confirm these beliefs. Unfortunately, in some of the post-conflict societies, there appears to be little effort to mount significant programmes of peace education. While the fighting may have stopped there may be little happening in the education sector to promote greater understanding of different cultures. Anyway, children’s values and behaviour patterns are largely formed within their families and communities. They will not change overnight because of a curriculum change. There may be incremental gains in peace education, but it is the wider community that must also change, as that provides the all-important context for socialization. F

Curriculum Development

Curriculum development is one of the most important educational matters in post-conflict societies. If the curriculum is not designed to the satisfaction of all parties, it is likely to remain a focus of ethnic discontent. The challenge facing

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all curriculum designers is how to incorporate two leading objectives of ethnic groups. The first is to guarantee, develop, and transmit knowledge and understanding of ethnic identity. This concerns history, culture, language, and religion. The second is to provide the modern knowledge and skills required for the economy. For example, the New Kosovo Curriculum Framework takes great care to identify elements of a core curriculum to satisfy the economic objective while allowing for the expression of difference through an elective curriculum. Problems can emerge when early action is not taken to reform old curricula or when the identity objective dominates. The former is seen in Bosnia, where nationalist ideologies have continued to influence curricula that perpetuate bias and intolerance. The latter has occurred in Mindanao, where the peace agreement has guaranteed the position of the madrasah schools for the Muslim population. However, the curriculum there is religion-focused and provides few marketable skills. Thus, the qualifications from madrasah schools are not recognized by the education department and so severely limit the options of madrasah graduates for further education or employment. A potential problem for curriculum development is the existence of a gap between the statements in policy documents and the reality of implementation. Capacity problems are particularly important. For example, in Gagauzia or South Ossetia, the shortage of resources in the context of low levels of economic development mean that curriculum objectives may be difficult to realize. Even in Macedonia, the financial unattractiveness of the teaching profession raises questions about the education system’s capacity to deliver the desired quality of education. Finally, curriculum development can be used as an integrative device to promote better understanding between conflicting groups. For example, in Northern Ireland, efforts to develop a statutory curriculum called Local and Global Citizenship is hoped to lead to better understanding between the two religious denominations. However, the injection of such initiatives into school curricula can only work if there is some degree of support from the wider ethnic community. G

Foreign Aid and Educational Finance

In many of the case studies, there has been considerable destruction, dislocation, and loss of life. Infrastructure is damaged and systems have broken down. Reconstruction and development can only be accomplished with outside assistance. The territories are frequently in poor economic shape and are located among the ranks of the low income or lower middle income countries. Thus, in many instances, there is great reliance on foreign aid. Organizations such as the World Bank, European Union, UNDP, and many NGOs provide financial and technical help. The relative size of this help can vary but in most cases has been vital for rehabilitating the education system. The donors appear to be able to undertake repairs and rebuilding works quickly and easily. They also contribute to re-designing the educational system and ensuring that it produces quality outputs and outcomes. This has proved a much more difficult task than physical infrastructure and one that is far from complete. Even new infrastructure creates a cost for

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recipients, for example, the recurrent costs of maintaining a school. There have been variable degrees of dependence on the donors, but in all cases questions arise as to the sustainability of the systems being created and of the aid itself. Dire economic circumstances mean that the post-conflict countries are unable to shoulder the full resource burden of educational development. Increased recurrent costs may be difficult to maintain and investment capital may disappear. Whether this will lead to cynicism, anger, or simple disappointment among constituent populations remains to be seen, but all scenarios are possible. Northern Ireland is once again an exception as it does not receive foreign aid. H

Decentralization

In some case study territories, there are questions about further decentralization. In general, there has been a central reluctance or slowness to decentralize educational responsibilities to lower levels such as municipalities or districts. There appear to be two aspects to this retention of central control. The first is the perceived need to consolidate new or revitalized institutions at the centre before giving out power to lower levels. The second is that administrative capacity at lower levels may be lacking. Decentralization could then lead to increased inefficiencies in newly established or reinvigorated systems. In Bosnia and Herzegovina where decentralization was introduced the overall system suffered from too rapid design and implementation with some adverse consequences for education. By comparison, the major decentralization of functions in the Philippines in 1991 did not include education. The devolution of authority for education to the ARMM is accompanied by various central controls. Northern Ireland appears to have decentralized authority successfully, first to local education authorities and then to school governing boards. But while formal decentralization may not have taken place in many of the case studies, there may be a de facto decentralization. Many of the states or regions are weak in the sense that they lack the capacity to make and implement the rules that determine people’s everyday behaviour. They also have substantial rural populations, some of whom are difficult to reach. In such circumstances, decisions about what goes on in educational institutions may be less determined by central ministries than by local practice. I

The Private Sector

The peace agreements make few mentions of private education, with the exception of Mindanao. There are some references to private sector participation in documentation produced by aid agencies such as the World Bank, and these agencies are often champions of privatization, contracting out, and user-pays services. However, their reluctance to promote private sector solutions seems to reflect the perception of institutional fragility in many instances and a common popular belief in the duty of the state to provide free education. Poor economic conditions accompanied by widespread poverty also make the promotion of private sector remedies both difficult and potentially destabilizing. There are a few

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private schools in Mindanao but they are the exceptions among the case studies rather than the rule. J

Education and Power-sharing

The case studies in this chapter have clearly demonstrated that in all power-sharing agreements the arrangements for education are perceived by all stakeholders as important and as a result are often contested. Resolving these arrangements to the satisfaction of the ethnic groups is often elusive. Two objectives determine the educational claims of these parties. Firstly, there is the desire to defend or consolidate identity. Secondly, there is the demand for equal access to economic opportunities provided by education. If an ethnic group perceives that it is being disadvantaged in its capacity to achieve these objectives then education continues to be a highly contested policy issue, a focal point for interethnic conflict. The identity objective most often leads to the perpetuation or even reinforcement of segregation in the education system. If resources are not seen to be equitably distributed between the separate groups, or that one group is exerting undue influence over matters such as curriculum and language, then disaffection occurs. While there have been some efforts towards greater integration, the dominant theme in power-sharing arrangements is for separation of the groups. This reflects embedded distrust following from often lengthy histories of conflict. Devices such as peace education and common curricula can assist in promoting greater understanding, efficiency and equity in education but messages transmitted in classrooms may be contradicted by more powerful influences in their communities. The major requirement of educational reformers is the development of political skills that can be employed in persuading different groups that education policy is not a zero-sum game in which the protagonists see things as one side’s loss and another’s gain. The realistic reformer should adopt a ‘satisficing’ model, that is, seeking solutions that are both satisfactory and sufficient to the various parties (March and Simon 1993). There are possibilities in activities such as curriculum development, teacher training, school equipment, and equal access for different sides to select satisfactory policy alternatives. The idea of optimal solutions that can be achieved rapidly, often involving substantial international support, is misguided. Educational development in post-conflict societies is a long-term task and an important one in which incremental progress, rather than great leaps, should be the aim of those making and implementing policy.

Chapter 17 Resolving Self-determination Disputes Using Complex Power-sharing: The Role of Economic Policies John Bradley

I

Introduction

The treatment of the role of economic policies in the context of complex power-sharing systems is one of a number of ‘horizontal’ issues, the others include education; policing, security, and military; administration of justice; human and minority rights; and external relations and trans-border cooperation. In this set of issues, the role of economic policies (and, perhaps, education) can usefully be differentiated from the roles of the others in some important ways. At the most basic level, disputes concerning policing, the administration of justice, the treatment of human and minority rights, and the modalities of external relations are often at the very centre of the initiation, conduct, and resolution of self-determination disputes. However, economic policies and education tend not to feature near the top of any list of the fundamental underlying causes of self-determination conflicts, or on the ‘traditional’ list of issues that need to be addressed when trying to resolve such conflicts. It would be naive, of course, to claim that economic and educational inequities and inequalities play absolutely no role in self-determination disputes or in their resolution. A more reasonable position would be to acknowledge that, where they do play such a role, it is more usually as a manifestation of the consequences of other reprehensible actions, involving a more widespread discrimination against specific ethnic or regional sub-groups, rather than as a primary cause. The denial of opportunity, the denial of resources, the ‘unfair’ use/extraction of resources, etc., are usually part of self-determination claims. But, as McGarry and O’Leary have asserted in connection with the conflict in Northern Ireland: The Northern Ireland conflict has been waged paramilitarily and politically between two communities with different national identities, not between two aggregates of individuals mainly interested in promoting their economic well-being. Economic factors have impinged upon the conflict, but they do not determine it. (1995a: 306).

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 531-557

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Another way in which economic policies matter, in a secondary rather than in a primary role, reflects the fact that, until the early 1990s, five of the eight case study regions were integrated into the former Communist bloc. Three regions – Kosovo, Macedonia, and Bosnia – were part of the former Yugoslav Federation and its Serb-dominated precursor since shortly after the First World War. The Yugoslav Federation then became part of the Communist bloc, albeit a semi-detached member, after the Second World War, and remained so until its breakup during the early 1990s. Two of the remaining five case study regions – Georgia and Moldova – were constituent Republics of the USSR and remained so until the breakup of the USSR and the formation of the looser Confederation of Independent States (CIS) in 1992. All five of the these regions– to a greater or lesser extent – had centrally planned economies, or at least economies that did not possess many of the institutions that are considered necessary for a functioning market economy. But disputes over the transition from Communist central planning to capitalist market institutions could hardly have been at the core of the self-determination conflicts in any of these five ex-communist regions. The obvious difficulties involved in making the transition to a market economy may have exacerbated an already long list of political, ethnic, and socio-economic problems facing each of these regions, but many other centrally planned economies have successfully made this transition without descending into interethnic conflict. Nevertheless, there are some compelling arguments that suggest reasons why some formerly communist countries became more prone to internal conflict, and suffered from official corruption and organized crime, when they liberalized their politics and their economies (Olson 2000: xxv). If the transition from an economic policy regime of central planning to one of market-based institutions tends not to act as a primary driver of conflict, could it be that stresses due to particular conditions of poverty may have generated, or at least exacerbated, conflict in the case study regions? Seven of the eight regions rank as poor, and in the case of Mindanao and Bougainville, are among the very poorest in the world (World Bank 2003). But the standard of living in one case study region – Northern Ireland – is very high, in that it broadly shares the living standards of the United Kingdom, of which it is a region, and which itself ranks among the group of very rich countries. Thus, prosperity is not a complete insulation against internal self-determination conflicts. Nevertheless, other things being equal, the fact that a country has a reasonably high standard of living appears likely to guide internal disputes away from violent conflict towards peaceful solutions. If a country has a very low standard of living – a situation that is often accompanied by very wide inequalities of regional income levels – this may 

Georgia and Moldova were part of the Soviet system of central planning, where both production and prices were determined by the central planners. The former Yugoslavia – while formally part of the Communist bloc - was not centrally planned, but had an economy characterized by state ownership, labour-managed firms and controlled prices.

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increase the probability of internal conflict. If such poor regions have different ethnic composition, this can often tip them into conflicts of self-determination. Does economic ideology, interpreted in a wide political-economic sense, play any role in conflict? During the period of the Cold War, national liberation movements and conflicts about self-determination have sometimes been closely associated with clashes of political and economic ideologies. In the post-Communist era, one does not, of course, have to accept all aspects of the “end of ideology” thesis of Francis Fukuyama (Fukuyama 1992). Nevertheless, in the post-communist era, the homogenizing forces of globalization place severe restrictions on the menu of economic policy options that are realistically available to small countries and regions. When conflict moves towards resolution, the first dawning realization of devolved or self-government is usually the grim realization of just how powerless countries and regions can be in designing and implementing well-meaning strategies to improve their economic welfare! Much attention has been paid elsewhere in this project to the role of international involvement or intervention in the process of negotiating power-sharing solutions to self-determination conflicts, often in the form of financial or other aid. But foreign direct investment, by far the dominant form of international involvement in any modern economy, usually manifests itself only when the conflict is fully resolved, or when it is partially resolved and violence has reduced to an ‘acceptable’ or ‘tolerable’ level. Host country experiences of inward investment can take different forms: many such experiences are development-enhancing while some are simply exploitative. But openness to the global economy, and in particular to foreign private capital, is a crucial lever of growth, and post-conflict economic policies are often directed at enhancing the ability to attract such investment, in a context of fierce competition from other countries and regions, in order to augment their own domestic successes (Rodrik 1999). The absence of conflict is almost always a necessary condition for economic stabilization and recovery, as well as for the encouragement of an inward flow of foreign capital. But it is hardly ever a sufficient condition alone. A wide range of other issues must also be considered, such as a region’s geopolitical location, its resource endowments, the quantity and quality of physical infrastructure and human capital, and the ability and willingness to implement appropriate economic policies and plan rationally for a better future. But, as Olson suggests, tackling such issues is not easy: A major challenge of poor societies is not their lack of resources, but rather their difficulty organizing large-scale activities, particularly governmental activities (Olson 2000: xvii).



In its economic aspects, Fukuyama claims that “capitalism is a path toward economic development that is potentially available to all countries … provided that (countries) play by the rules of economic liberalism” (Fukuyama 1992: 103).

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These are some of the themes that we take up in this chapter. To provide context, and to justify the inclusion of economic policies as a ‘horizontal’ issue in the project, we start in Section II with a review of what economic theory tells us about policy-making in a context of conflict resolution, drawing mainly on the insights of North (1990) and Olson (2000). In the foreword to Olson (2000), Leszek Balcerowicz – previously Minister of Finance in post-Communist Poland – used the illuminating phrase “moments of extraordinary politics” to describe the dramatic efforts that are often needed to consolidate authority by appealing to encompassing interests in an effort to solve conflict. The concept of ‘encompassing interest’ in its economic interpretation is crucial to an understanding of the limited, but still vital, role that can be played by economic policy-makers and economic policies in mitigating the human costs of conflict. North’s framework of analysis points to the crucial importance of institutions in promoting economic growth. Olson’s extension and application of the framework shows how the legacy of the era of communism has been particularly poisonous, and has served to impede the emergence of encompassing socio-economic institutions in five of the eight case study regions. Similar considerations can be shown to apply to the remaining three ‘non-communist’ case study regions. In Section III, we briefly describe the economic context of seven of the eight case study regions, with a view to identifying the external and internal constraints that condition the scope for economic policy formation. In two of the case studies (Bougainville and Mindanao), the self-determination dispute has taken place within a region of a nation-state (Papua New Guinea and the Philippines, respectively) that appears likely to continue to play a dominant role in the destiny of the region experiencing the self-determination conflict. In the case of the remaining five case studies (Kosovo, Macedonia, Bosnia, Georgia, and Moldova), the selfdetermination disputes took place within a region of a nation-state whose external economic context continues to be influenced by interactions with elements of the wider federation of which it was formerly a part (Yugoslavia and the USSR), or the relevant rump of that former federation (Serbia and Russia). However, looking at these case study regions from the perspective of the global economy suggests another classification. The future of the three West Balkan regions almost certainly lies with their ability to use their proximity to, and possible future membership of, the European Union as a driving force for stability, cohesion, and development. In the case of Georgia and Moldova, this role is likely to be played by Russia, in conjunction with the EU. Finally, in the cases of Mindanao and Bougainville, their main driving force for economic development will rest with their ability to link with and benefit from the ASEAN (Association of South East Asian Nations) economies in the Mindanao case and ASEAN plus Australia and New Zealand in the Bougainville case. But such classifications and distinctions are not dogmatic or precise, and are merely intended to clarify the context of, and scope 

The case of Kosovo is somewhat anomalous, but it seems more logical to include it here with the other two West Balkan states and to assume that it will follow them either on the road to independence, or to a form of devolution.

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for, economic policies in post-conflict power-sharing arrangements. In what follows, our main sources of socio-economic information and data are drawn from the documented project case studies and from international agencies, assisted by access to the material that have been helpfully collated and annotated in Boyle (2002). In Section IV, we examine the case of Northern Ireland. Northern Ireland is different from the other seven regions in some very important ways. The level of economic welfare was high at the start of the conflict in 1969, and remained high for its duration. The conflict – although serious – was less intense than in most of the other case study regions. The conflict is now effectively over, and present difficulties concern mainly the operation of the post-conflict institutional arrangements. The possible relevance of Northern Ireland to the other seven case studies lies in the fact that the power-sharing arrangements now in place were articulated well beyond the political institutional arrangements needed to stop the conflict, or aspirational economic policies that were unlikely to progress in the absence of adequate funding. These arrangements have been extended to cover a wide range of encompassing socio-economic policies and institutions that attempt to address the underlying causes of the conflict. While we must take the very special situation of Northern Ireland into account, and in particular its ready access to massive financial support from within the United Kingdom, we try to use this case study to generalize our insights and draw lessons for the other case study regions. In Section V, we draw together the main strands of our study, covering the key insights from economic theorizing about the nature of encompassing economic policies and the likelihood that they can implemented in power-sharing arrangements; the constraints placed on the case study regions by their intrinsic characteristics and the particular nature of their internal conflict; and the insights that we can obtain from development experience of some of the less-developed small EU member states. II

Institutions, Economics, and Conflict

A

Economic Theory and Economic Policy

In any consideration of how economic theory provides a guide to the design of policies useful in terms of conflict resolution, it is worth suspending disbelief for a moment to consider whether or not explicit policies are needed at all. This is not quite so foolish as it might first appear, as there are two dominant schools of thought within economics that propose radically different answers to this ques-



At the time of writing, the power-sharing institutions of the Belfast Agreement, in particular the local legislative assembly at Stormont, are suspended. But there has been no resumption of paramilitary violence, and there is a reasonable expectation that the institutions will be restored in the near future.

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tion. The outcome of these debates can have an important role in shaping policy towards the provision of development aid funding. Orthodox theory takes the view that all one has to do to promote growth and convergence is to put in place policies that facilitate the free movement of goods and the factors of production (i.e., labour and capital). In that case, orthodox theorists claim that factor incomes (wages and the returns on capital) will converge to a common level across all regions. So, if all markets are competitive, any initial regional disparities will eventually vanish and there is no need for specific policy intervention. Indeed, such policies will run the risk of wasting scarce resources and simply get in the way of the competitive market process! One of the consequences of more recent advances in the study of spatial economic processes is that the conditions required for such automatic convergence to take place are increasingly seen as not holding in practice. New theoretical approaches focus attention on the importance of the initial level of regional physical infrastructure, local levels of human capital, or on the fact that regions which start off at a structural disadvantage may never converge in any reasonable time period. Such theories suggest that the removal of barriers to trade and factor movements may actually lead to a relative deterioration rather than an improvement of some regions (Fujita, Krugman, and Venables 1999). As with much else in economics, there is no right or wrong answer here. A crude erection of trade or other barriers, or an indiscriminate dependence on external aid in order to ‘protect’ weak regions, can be shown to be damaging to economic welfare. Equally, a blind belief in competition policy and the forces of market liberalization can also be shown to be inadequate (Rodrik 1999). A balance needs to be struck between these polar approaches, with particular attention paid to the evolution of appropriate institutions. B

Economics and Institutions

Douglass North has suggested that “the present and the future are connected to the past by the continuity of a society’s institutions” (North 1990: vii). A common feature of all eight case studies is that conflict was accompanied by a complete breakdown of the societal institutions, which further exacerbated violence. It is impossible to assign causality here, but the breakdown of institutions is usually the most important element of any self-determination dispute insofar as the collateral damage to the economy is concerned. North makes a distinction between what he refers to as the “rules” and the “players.” The rules (or institutions) define the way the game is played. But the players (or organizations) operating within a given set of rules determine the opportunities in a society. As organizations evolve, they alter the institutions. If the underlying institutional framework reinforces incentives for organizations to engage in productive activity, then this usually produces stable economic growth and development. But if the institutional framework (or, indeed, an inability to provide any such framework in a situation of conflict) favours activities that promote redistributive rather than productive activity, and creates monopolies rath-

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er than competitive conditions, then this restricts growth rather than encourages it. Logic of this kind illuminates the debate between the political science approach to conflict resolution and the role of economics, which has been summarized as follows by McGarry and O’Leary in the context of the conflict in Northern Ireland: Affirmative action, economic growth, anti-racketeering offensives, cross-border economic cooperation, the promotion of more competitive enterprises, and European economic integration … must be welcomed for their own sake, but it must always be remembered that at best they will fall short of what is required to resolve the conflict, and at worst they may even deflect attention and energy from the crucial political measures necessary to change the logic of the cruel game in which the participants are presently trapped (1995a: 307).

Such a conclusion obliges one to question whether conventional economics – a discipline founded on rational choice theory – has any role in conflict resolution. Here, North’s work augments conventional economics and constructs a theory of institutions by combining a theory of human behavior with a theory of the costs of transactions, and led him to delineate three types of archetypical exchange mechanisms that underpin all economic activity: i. Personalized exchange, involving small-scale production and local trade; ii. Impersonal exchange, in which the parties are constrained by kinship ties, bonding, exchanging hostages, or merchant codes of conduct; and iii. Impersonal exchange with third-party enforcement, of a type that is a critical underpinning of successful modern economies involved in complex contracting necessary for modern economic growth. History demonstrates the tendency to evolve sequentially from the first to the third exchange mechanism over time, but some of the case studies describe situations of conflict where economies have imploded and exchange mechanisms have reverted to earlier, more primitive, and often illegal forms. North concludes that: “One cannot have the productivity of a modern high income society with political anarchy” (1990: 35), and suggests a possible way in which the dilemma identified above by McGarry and O’Leary can be addressed, without conceding their assertion of the limited role of economics: Political rules in place lead to economic rules, though the causality runs both ways. That is, property rights and hence individual contracts are specified and enforced by political decision-making, but the structure of economic interests will also influence the political structure. (North 1990: 46).

We can interpret North’s concept of institutions, and his assertion that they are the underlying determinant of the long-run performance of economies, as being consistent with what McGarry and O’Leary referred to above as “political mea-

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sures.” Any artificial distinction between politics and economics now fades, and the need for a dual concern with both can be established. But this is only likely to be valid if one moves away from an excessively narrow concept of ‘economic policy’ as merely a random collection of disorganized and unfocused initiatives. In the next section, we will illustrate the ‘systemic’ approach to economic policymaking by reference to the EU use of Structural Funds to address the fundamental political-economic objective of ‘cohesion’. Olson (2000) uses a related classification of markets into “self-enforcing” and “socially contrived.” Without an appropriate institutional environment, a country will be restricted to trades that are self-enforcing (equivalent to North’s categories (i) and (ii) above). But with appropriate institutions (legal system, political order, etc.), all possible gains from trade can be realized (North’s category (iii) above). Olson suggests two general conditions that are required to sustain a market economy that is likely to generate economic success: secure and well-defined property rights, as well as the absence of predation of any kind. He concludes: Given the extraordinary gains available from adopting the advanced technologies available in the post-war world and the possibility of interacting with a reasonably successful world economy, these two conditions, if fully met, are nonetheless sufficient to bring prosperity to a society (2000: 197).

A

Centralization and Regionalization

The degree to which economic policy autonomy differs between regions of a nation-state tends to reflect the extent to which the state is organized along decentralized rather than centralized lines. For example, the United Kingdom is a highly centralized state, and has normally permitted only very limited devolved powers of political and economic governance to its regions. Northern Ireland was the exception, and had the potential for some policy autonomy after the passage of the Government of Ireland Act in 1920, which partitioned the island of Ireland and set up a separate parliament in Belfast with control over a wide range of local matters. The referenda of the late 1990s on devolution for Scotland and Wales further relaxed the degree of UK centralization. However, the overall level of public expenditure in the regions of the UK, though not its detailed allocation between programmes, is still decided at the centre in Westminster, subject to the application throughout the UK of a common level of income support, health, education, and other entitlements-based payments, where expenditures are ringfenced by the central government. In a federal political system, on the other hand, a large degree of freedom in both political and economic governance is accorded to the individual regions. An essential part of any political resolution of conflict situations often involves the establishment of a devolved administration to oversee the operation of public policy and administration. A central issue concerns the degree of autonomy in policy making that is granted to the regional authority, and the implications for regional and national financing. A devolved system of governance tends to be

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valued for a variety of reasons. It encourages an efficient allocation of national resources; it fosters political participation and a sense of the democratic community; and it helps to protect basic liberties and freedoms (Inman and Rubinfeld 1997: 44-45). A common principle in all types of devolved systems of governance is the desirability of having the most decentralized structure capable of internalizing all economic externalities, in the following sense. Central government is assigned responsibility for services that are pure public goods (e.g., national defence, basic research) or when there are inefficiencies arising from externalities across jurisdictions (e.g., transport, communications, and energy infrastructure). Lower-tier government is assigned responsibility for provision of ‘congestible’ services, i.e., ones that become congested as more households use the service (health, education, police, sanitation), and may also fulfill a role in conflict resolution. Ohmae (1996) has argued that regions of centralized states face a further dilemma as they participate in the global economy because the nation-state has tended to become a somewhat unnatural, even dysfunctional, unit for organizing human activity and managing economic endeavour in what, he argues, is becoming a borderless world. He contends that a nation-state sometimes represents no shared community of economic interests and may not define meaningful flows of economic activity. He argues that the nation-state tends to overlook many of the true linkages and synergies that exist among often disparate populations by combining important measures of human activity at the wrong level of analysis. In what has become an extensive debate, others have argued that the much discussed phenomenon of ‘globalization’ does not mean the hollowing-out or death of the nation-state (for example, Anderson 1995), nor indeed a withering away of the economic strength and policy autonomy of national governments (Hirst and Thompson 1995). A more accurate picture would seem to be one that suggests that: [The nation-state’s] powers and roles are changing and it is interacting with a plethora of other, different kinds of political institutions, organizations, associations and networks. Contemporary globalization is overlaying the mosaic of nation-states and national communities with other forms of political community and non-political market relations (Anderson 1995: 103).

The important point is that increased regional autonomy and the continuing importance of the nation-state are not contradictory, but are mutually-beneficial phenomena. For example, Dunford and Hudson (1996) argue that strong regional economies tend to be associated with strong national economies and that an important factor is the degree of regional policy autonomy. The eight case study regions have all displayed, to differing degrees and for different reasons, elements of this wider and seemingly paradoxical phenomenon of increased regionalism/nationalism during a period of increased globalization. It is likely that these trends will continue, with an irreversible impact on the constitutional and policy framework of nation states, and possibly the eventual reconstitution of these states.

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III Economic Issues in Regions of Conflict A

Introduction

In this section, we review the case studies and explore a series of issues related to economic factors involved in situations of conflict. We have already seen that there were some important implications for economic policy arising from the breakup of the two encompassing states/economies of the USSR and the former Yugoslavia into a series of smaller states/economies. The main consequence was the complete destruction of the former system of communist central planning – including the less rigid Yugoslav variant – and its gradual replacement during the 1990s by a broadly market-based system built around a series of new institutions and laws. But the breakup of the two larger economic units – the USSR and the Former Yugoslavia – occurred as a result of the breakup of these two federations due to political and ethnic factors that had no simple or direct connection with economic matters. The emergence of Kosovo, Bosnia, and Macedonia from the former Yugoslavia, and of Georgia and Moldova from the USSR led, or is in the process of leading, to the creation of a series of smaller states whose economies have a certain logic in terms of their economic independence and governance. In the case of the three case study regions of the West Balkans, it is perhaps probable that they will become full member states of the European Union after a period of transition and reform, and perhaps on a time-scale similar to Romania and Bulgaria (ESI 2002; 2003). Given the likelihood of eventual EU membership, the long-term economic strategy for these three states will almost certainly involve full integration into the Single European Market, adoption of the Euro as their currency, and transitional investment aid to promote economic cohesion prior to EU membership. Georgia and Moldova are less likely to join the European Union as full members, although the close relationship that exists between Romania and Moldova suggests that this is not inconceivable. In the case of Georgia and Moldova, it is their economic relationship with Russia that is likely to continue to dominate economic policy-making, together with a growing trade relationship with an enlarged European Union. Consequently, the stabilization and development of the Russian economy will be a key driving force of the development of Georgia and Moldova, in the context of deeper links with the economies of the EU. For two of the remaining three regional case studies – Mindanao and Bougainville – it is more difficult to make a strong case in favour of their emergence as sovereign, independent states with viable self-sustaining economies likely to develop and prosper in the absence of permanent dependence on outside aid. What will be crucial for Mindanao and Bougainville is the nature of their new relation

However, excessive fragmentation needs to be avoided, and, in the case of SerbiaMontenegro, the EU has exerted pressure in favour of sub-regional integration as a pre-condition for eventual EU membership.

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ship with the states of which they are likely to remain part, the nature and level of support that will be given to them from the central policy-making authorities, as well as from the international community, and the viability and economic health of the states of the Philippines and of Papua New Guinea. The final case study – Northern Ireland – is unique and demands separate treatment from the viewpoint of economic policy. Here, we have a region of the United Kingdom with a reasonably prosperous, developed, and modern economy, whose growth has certainly been damaged by the conflict that lasted from 1969 to the mid-1990s, but which enjoys all the benefits of the United Kingdom’s ability to give long-term massive financial support to its poorer regions in the form of an annual financial subvention. While there is a logic to including Northern Ireland with the other regions as a case study of self-determination conflict, in economic terms it has almost nothing in common with the other seven case studies. However, the fact that complex power-sharing institutions have been set up in Northern Ireland, and these institutions have strong economic policy aspects, is of relevance to the other case studies. In none of the other regions has the design and operation of such institutions progressed as far, and been financed as well, as they have in Northern Ireland, and for these reasons we treat it separately in Section IV below. B

Regions of the Former Yugoslavia

The three regions that make up the Western Balkans – Bosnia, Macedonia, and Kosovo – form a logical group from the point of view of the design and execution of economic policies that are likely to be supportive of the political institution-building that is at the centre of conflict resolution. Each region was part of the former Yugoslav Federation and broadly shared in the general level of development as well as the Yugoslav form of communist economic policy based on labour-managed firms rather than on formalized central planning. All three regions experienced violent ethnic-based conflict, a situation that has been stabilized to a considerable extent, particularly in the aftermath of political change in Serbia. All three regions have received significant economic development aid, 



If Northern Ireland were an independent state like Macedonia (which has a similar population size: 1.95 million compared with 1.6 million in Northern Ireland), then a hypothetical ‘state’ of Northern Ireland would have a public sector borrowing requirement of some 30% of its GDP if it were required to finance its present level of public sector spending through foreign borrowing rather than through an intra-UK financial allocation. It should be noted that one region of the former Yugoslavia – Slovenia – was more prosperous than all the others, and contained much of the more modern, export-oriented, manufacturing firms. Slovenia escaped from the federation in June 1991 – with almost no violence, made very rapid economic progress, has a standard of living that now equals that of Greece, and became a full EU member in 2004 along with seven other former Communist countries.

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mainly from the European Union. And all three regions have a strong expectation that full EU membership will eventually be offered to them. 1 Bosnia As pointed out in the case study in Chapter 7, the origins of the war in Bosnia lay in the weakening of the communist and federal authority of Yugoslavia from the mid-1980s. Disputes on the future shape of Yugoslavia eventually spread to an internal ethnic conflict within Bosnia, and the consequences have been described in the case study. The power-sharing arrangements in Bosnia – based on the Dayton Peace Accords of 1995 – were designed in the context of a country that was not yet fully sovereign, and one where a considerable degree of power was vested in international institutions and individuals and could not be shared among domestic political actors (e.g., in the security, civilian, and financial areas). The main aspects of economic policy-making take place in a two-tiered governance system that involves the centralized institutions of Bosnia and two decentralized ‘entities’ – the Federation of Bosnia and Herzegovina and the Republika Srpska. The central institutions of Bosnia have competencies in such aspects as international relations, communications, and border control. In terms of economic policy, these competencies include trade, customs, monetary, fiscal, and transport policies (the ‘public goods’ referred to in the previous section). The weakness of the joint institutions of Bosnia has resulted in financial and fiscal problems caused by an inability to raise substantial resources of their own in the absence of payment to the centre by the ‘entities’. 2 Kosovo Kosovo was an autonomous province of the former Yugoslavia, and was among the poorer of the Yugoslav regions. Its tortured relationship with the Yugoslav Federation and with Serbia has been described in the case study in Chapter 8. Indeed, its conflict is so recent and was so violent that it is probably premature to speculate about the exact form of its long-term resolution. The EU has had a major involvement in the region, and this initially took the form of humanitarian assistance: emergency repairs to infrastructure, rebuilding houses, restoring electricity and water supplies, and establishing a financial infrastructure. At the time of writing, this initial phase is coming to an end, and the EU agencies are turning their attention to the more challenging and costly task of developing Kosovo as a modern market economy that is capable of initiating and sustaining economic growth. In Kosovo, the EU is centrally involved in the work of the UN (UNMIK), and heads the pillar of the mission responsible for Economic Development and Reconstruction. There is general agreement that the following are the policy framework priorities for the future of Kosovo. To avoid a permanent dependence on international 

Commitment to Kosovo, the newsletter on European Union activity (www.euinkosovo.org).

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aid, there needs to be more progress towards budget sustainability, by broadening the tax base, reducing public sector employment, maintaining a reasonable level of income, and recovering the costs of some public services. To encourage the growth of private markets, further reforms are needed in trade policies and customs administration, enactment and enforcement of laws to foster new business formation, and efforts to resolve property ownership questions and devise an efficient and effective privatization programme. Finally, there is a need for modern labour legislation and the development of a social safety net targeted at the poor in all ethnic groups. There remain many policy questions that can only be addressed when the political status of Kosovo is eventually resolved. For example, if Kosovo reverts to its previous status as a region of Serbia with devolved powers, then fiscal arrangements – in particular, generation of viable public budgets by enforcement of fiscal obligations and sharing of resources with the devolved local government – transnational links, and the legal basis for ensuring equal economic opportunities, will need to be designed and implemented within a federal system. However, if Kosovo gains independence, these issues will become the responsibility of an internal power-sharing administration between the two ethnic groups. For the present, these matters are mainly the responsibility of the international community, operating through UN and EU representatives in the area. 3 Macedonia The separation of Macedonia from the former Yugoslavia in September 1991 was a relatively peaceful process. Through a combination of international and domestic actors, together with a moderate approach by local political leaders, the country remained stable. After the 1999 Kosovo conflict, however, violence broke out in early 2001 between Macedonian forces and a group that claimed to be fighting for improved rights for ethnic Albanians in Macedonia. The parallels with Northern Ireland were noted, and the media referred to the possibility that the region risked becoming a ‘Balkan Ulster.’10 In terms of the power-sharing institutional arrangements set up under the Framework Agreement of 13 August 2001, with its move away from a system of majoritarian democracy, there are further parallels with the Belfast Agreement of Northern Ireland. The Framework Agreement preserved the unitary character of the Macedonian state, but developed local self-government to deal with a broad range of socio-economic matters, such as the provision of public services, urban and rural  10

For a discussion of how “rule” by the international community works in practice, in the case of Bosnia and Herzegovina, see Knaus and Martin 2003. In Macedonia, the ethnic Albanians made up some 25% of the total population. In Northern Ireland, the proportion of Catholics grew from some 30% in 1920 to about 45% today. So, both regions had a large minority population, and in both cases the minority group appeared to be economically disadvantaged (in terms of educational attainments, high quality jobs, etc.) – a matter that can easily be interpreted in terms of overt discrimination.

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planning, environmental protection, local enterprise development, culture, education, social welfare, and health care. As in the cases of Bosnia and Kosovo, the EU was the main provider of international finance, and promised over EUR 100 million linked to the confirmation of the Agreement by the Macedonian parliament. This was intended to finance repairs to damaged infrastructure and support public expenditure more generally. 4 Economic Future of the Western Balkans The European Stability Initiative (ESI) has pointed out that, as the period of initial reconstruction and stabilization draws to a close in the Western Balkans, there is a looming crisis of social and economic dislocation (ESI 2002). The crisis is emerging just as existing EU assistance is being scaled down, and in a context where the countries of the region find themselves excluded from the EU enlargement process. The ESI suggests that the existing EU policy instruments – designed with post-conflict reconstruction in mind – need to evolve into a genuine and long-term commitment to address the region’s chronic economic and social problems. A possible suggestion could be that the EU undertakes to include the Western Balkans in its commitment to economic and social cohesion across Europe prior to opening negotiations with states in the region. The term ‘cohesion’ in such a context first came into use in the late 1980s at the time when major reforms and expansions of EU regional aid were being carried out. As set out in Article 130a of the Treaty on European Union, there is an explicit aim to promote “harmonious development” with a specific geographical dimension: by “reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions” (Treaty on European Union 1993). Thus, there is a recognition that wide disparities are intolerable in any community. Progressive trade liberalization within Europe was always likely to entail substantial industrial disruption in the periphery, either defined as the member states on the western and southern edge of the EU or as those sub-regions of large member states that were located far from the main centres of population and economic activity. One of the main reasons for the reform and enlargement of EU regional policy (the so-called Structural Fund aid packages), was the introduction of the Single Market in 1992. The political rationale came from the fear that not all EU member states were likely to benefit equally from the Single Market, whose purpose was to dismantle all remaining non-tariff barriers within the Union. Initially, the less advanced economies of the southern and western periphery (mainly Greece, Portugal, Spain, and Ireland) were felt to be particularly vulnerable unless they received development aid. There are three main channels through which the development-enhancing effects of EU Structural Fund aid operate. These investment programmes improve the physical infrastructure of the economy; raise the level of human capital (through enhancing the skills and education of the labour force); and directly assist private sector performance by subsidizing investment. What is special about the Structural Fund-type policies is their goals, i.e., to design and implement

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policies with the explicit aim of transforming the underlying structure of the beneficiary economies in order to prepare them for exposure to the competitive forces being unleashed by the Single Market. These policies moved far beyond a conventional stabilization role, being directed at the promotion of structural change, faster long-term growth, and real convergence through mainly supplyside processes. How relevant are these policies to the West Balkan states? The first phase of the transition of the former command economies of Central and Southeastern Europe involved considerable disorganization and a very basic overhauling of industrial and institutional capacity. Socio-economic mechanisms operating during this phase entailed the creation of market-based institutional structures accompanied by substantial re-allocation of labour between the public and private sectors, as well as between manufacturing and market services. The initial impacts of restructuring generate the well-known U-shaped pattern for income and employment (Blanchard 1997). This process is not yet complete in the Western Balkan region. However, the processes that characterize the early years of transition in the Western Balkans should not be taken as the pattern of behaviour for the future. The second phase of transition is more likely to resemble the path followed in recent decades by EU countries like Greece, Ireland, and Portugal, where the driving forces behind cohesion (or catch-up) include progressive trade integration, foreign direct investment inflows, technology transfer, and EU-aided investment programmes, mainly for the support of infrastructural and human-capital development. However, in the real world, the two phases of transition are intertwined and operate simultaneously. What does one look for from an economic development strategy? It should provide a coherent and comprehensive set of policies for economic and social development for the foreseeable future, it must be consistent with the availability of resources, and its various parts must be well integrated. More formally, it must have four elements. First, it must set explicit targets and ensure that they carry no ethnic bias. Prosperous developed countries can enjoy the luxury of setting a diverse range of socio-economic targets, since they tend to have adequate resources. Developing countries, on the other hand, need to focus on the overriding target of accelerating growth of income per head. Given appropriate care in influencing income distribution within the country, other desirable socio-economic and cross-community objectives tend to come into line as a direct consequence of income growth (e.g., facilitating improvements in social conditions in the health and education areas, improved environmental care, etc.). Second, a development strategy must clearly identify constraints. For any transition country, particularly if there are violent conflicts, constraints are only too plentiful. The country may be located in an unfavourable geographic-economic area, close to zones of conflict and/or of deteriorating economic performance.11 11

One notes the fact that the very detailed IMF country reports are completely silent on the issue of self-determination conflicts in progress, or recently concluded, in

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In almost all such economies, there is an inadequate set of institutional structures. The initial level of development is usually low, putting constraints on the availability of resources (i.e., policy-makers face financial constraints from the balance of payments and in funding public sector borrowing requirements). It will probably have an unfavourable initial economic structure, with a very large agriculture sector, an unsuitable configuration of industrial sectors, and a very under-developed market services sector. The level of human capital as well as the level of technology tends to be low, placing constraints on feasible development strategies. The need to reduce exploitation of non-renewable resources places further constraints on growth. Third, it must identify suitable policy instruments. The availability of suitable social and economic policy tools is as important for the success of any development plan as the clear statement of objectives. These usually include increased investment, fiscal incentives aimed at stimulating the private sector, and appropriate wage-setting institutions. In particular, public investment must focus on infrastructure and human capital, with increased investment in health, education, and research, while stressing the need to improve telecommunication and transport infrastructures as well as building information technology competences. Both foreign and indigenous firms require incentives, designed to make the region more attractive to inward investment, since this will be the main facilitator of technology transfer and the re-orientation of manufacturing towards fastgrowing export markets. Finally, the main threat to restructuring will be unrest in labour markets. Any evolution of wage rates that disregards the need to maintain international cost competitiveness will choke off growth. Consequently, economic development strategies can benefit from forms of social partnership among the three main economic institutional players – government, trades unions, and employers - aimed at producing an orderly evolution of wage costs that preserves cost competitiveness. C

Nations of the Former USSR

Whereas the nations of Central and Eastern Europe (CEE) were only incorporated into the Communist economic system after the Second World War, the constituent Republics of the USSR (with the exception of the three Baltic states, incorporated after the Second World War) had organized their economies under a system of centralized planning since shortly after the First World War. If one examines the performance of the former communist countries, one sees that the states of the CEE area made a very rapid transition, involving an initial collapse of their economies by up to 50% from their 1989 size, followed by a rapid restructuring and periods of fast growth. As a result, eight of these states will become full the territories about which they are formulating economic policy advice. In the case of reports on countries like Georgia, the Philippines, and Papua New Guinea, such denial is unsettling!

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members of the EU in June 2004.12 However, with the exception of Slovenia, their standard of living remains low, ranging from about 50% of the EU average (the Czech Republic) to about 40% (Poland).13 The two least-developed second-wave EU-candidate CEE states – Bulgaria and Romania – most resemble the states of the CIS that emerged from the collapse of the USSR. The economies of Bulgaria and Romania between the two World Wars were less developed than those of the first wave of EU candidate states, so their level of physical and social capital was also much lower when they liberalized in the early 1990s. Their standard of living today is below 30% of the EU average and they have been deemed to be unprepared for full EU membership until at least 2007. Moldova is not even an EU candidate state. Even if Georgia and Moldova had been free of internal self-determination conflicts, they would be facing – together with Belarus and the Ukraine – formidable development challenges. Their internal conflicts have simply added to already difficult problems of economic restructuring by diverting energy and resources away from the economic challenges so that political problems can be solved. 1 Georgia The self-determination conflicts in Georgia have occurred in Abkhazia and South Osettia, and are described in the case study by Tsikhelashvili and Ubilava. Abkhazia was a reasonably well-developed and prosperous region of Georgia, with a good level of infrastructure that included Georgia’s largest electricity power station, important road and rail links, rich agricultural land, and mineral resources. South Ossetia, on the other hand, was less economically significant, with little by way of industrialization, and a considerable amount of income generation – much of it illegal – arising from an important transit route through the Caucasus mountain range along the central part of Georgia’s northern border with North Ossetia/Alanya within the Russian Federation. In the case of Abkhazia, one of the three Working Groups set up in November 1997 under the Geneva Process dealt with economic and social questions. Mutual understanding was reached on a range of issues: foreign economic ties, customs, energy, transport and communications, etc. For example, Russia is the main consumer of electricity from the Inguri power station and CIS troops guard the complex, and a series of trade treaties between Abkhazia and CIS republics has facilitated its self-sustainability. But the conclusions reached by Tsikhelashvili and Ubilavaare pessimistic: The effective independence of the Abkhazia breakaway region, with full sovereignty over domestic and in part, external affairs against weakly developed ties with Georgia proper makes it clear that for now all is about monopolizing power to the largest ex12 13

The eight CEE states who became EU members in 2004 are: Estonia, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, and Slovenia. For data on standards of living, as measured by gross domestic product per capita, see Economic Commission for Europe 2003: Statistical Appendix.

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The Georgian-South Ossetian peace process is organized through a Joint Control Commission (JCC) between Georgia, North and South Ossetia, and Russia, with the participation of the OSCE, UNHCR, and the EU, and the JCC has a Working Group on Economic Issues. A major economic policy problem is that Georgia is unable to finance even modest allotments for the Tskhinvali regional rehabilitation projects that are annually earmarked by the state budget. One of the major drawbacks for effective progress towards a final resolution is the lack of economic back-up. The EU has funded projects aimed at regional reconstruction and the construction of interrelated and interdependent infrastructure between South Ossetia and Georgia, as an initial stage in a process that may eventually transform Georgia-South Ossetia economic relations into well-integrated and coherent paths. 2 Moldova In the case study in Chapter 10, Järve describes Moldova as a paradox. After the collapse of the USSR and the communist system of governance, the post-Soviet Republic of Moldova suffered from the classic problems of feeble state institutions that were buffeted by ethno-nationalist conflicts. But Moldova is exceptional in that it legislated to create an autonomous territorial unit – Gagauzia – and codified power-sharing between the centre (Chisinau) and the autonomous region. The origins of the Gagauzia self-determination dispute arose from the desire of the Popular Front of Moldova party to make the Romanian-like language of Moldova into the only state language, and to promote a merger between the states of Romania and Moldova. These moves were opposed by the two regions with high concentrations of non-Moldovans – Transdniestra and Gagauzia. In 1990, Gagauz separatists unilaterally declared a breakaway republic, fearing a resurgence of ethnic Romanian nationalism within Moldova as it moved towards independence. A state of emergency was declared after the separatists held unauthorized elections to an independent parliament. However, in 1994, the newly independent state of Moldova adopted a constitution that granted the Gagauz special autonomous status, meeting some separatist demands. Since 1995, the Gagauz have had their own parliament and adopted their own laws, though the Moldovan government retains the right to approve decisions made by the Gagauz parliament. This power-sharing arrangement is unique in Central and Eastern Europe and the former USSR. The aspect of interest to this chapter concerns the economic implications of the power-sharing arrangement. The preamble to the law stresses, inter alia, the aim to ensure “economic self-reliance.” The vertical institutional arrangements have three levels: the state (capital Chisinau); the county level (twelve regions, including Gagauzia); and the local level. Within Gagauzia, the People’s Assembly has competences in the economic areas of education, housing and urban plan-

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ning, health, and local budgetary matters, including taxation, the economy, labour relations, etc. These competences are exercised by an Executive Committee, and matters such as the budget, having been approved by the People’s Assembly, are executed. However, these competences are not exercised in a vacuum, and there are restrictions on the actions of the Gagauzia Assembly and Executive. The Gagauzia local budget must include economic matters fixed by legislation by the Republic of Moldova. In addition, the Gagauzia budget must conform to the laws of the Republic of Moldova in the form of “fixed payments out of all forms of taxes and payments.” These economic restrictions, and taxation in particular, have proved to be troublesome for the relations between Chisinau and Gagauzia and have led to complaints about the lack of support for the region from the central government and to a lack of resources needed to implement local policy decisions. The Gagauz Assembly and Executive lay claim to all sources of revenue collected on their territory, plus the revenue from customs and excise taxes collected (by the centre) for goods actually consumed in Gagauzia. The Moldovan government reject this approach, even though it appears to be well-founded in the 1994 law! An approach based on the so-called ‘Barnett formula’ in the United Kingdom has been suggested, where the centre allocates financial resources in the form of a lump sum (or block grant), based on a determination of the ‘needs’ of each region. However, no agreement has been reached, and the poor economic situation of Gagauzia has become a further source of tension. In broad terms, the assignment of tax bases to sub-national governments in Moldova is in accordance with general public finance principles (de Melo 1999). Mobile tax bases are assigned to the central government budget, and immobile tax bases are assigned to sub-national budgets. The main tax bases assigned to sub-national governments are personal income, property, and land taxes. Subnational governments are also allowed to collect non-tax revenues in the form of royalties and fees for the use and exploitation of natural resources, user charges for goods and services provided locally, and land fees and duties. The central government collects excises and foreign trade taxes. The revenues of the corporate income tax and VAT are shared between the central and sub-national governments on a derivative basis. Two features of the Moldovan form of fiscal federalism are noteworthy. First, despite the large ratio of own tax revenues to total revenues, the sub-national governments are not free to set tax rates, which restricts their policy-making autonomy. Second, the revenue-sharing system tends to deepen vertical imbalances between central and local budgets. As a result, expenditure needs and revenuemobilization capacity are not equalized among the sub-national jurisdictions on a per capita basis, and regional income inequalities are perpetuated. Over time, the perpetuation of regional differences in income can accumulate into regional differences in stocks of financial, infrastructural and human capital. ‘Catch up’ would then require ‘affirmative action’ of a kind that would compensate disadvantaged regions for past fiscal neglect. This kind of action is almost certain to

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provoke strong political opposition in the wealthier ‘donor’ regions, particularly when the general economic climate is static or deteriorating. The de Melo (1999) IMF study concludes that the devolution of expenditure functions to sub-national governments should be matched by a sensible assignment of revenue sources across government levels, without depriving the centre of revenue sources and tax instruments, which it is best equipped to use more efficiently (in the sense of operating services that are pure public goods (e.g., national defence, basic research) or when there are inefficiencies arising from externalities across jurisdictions (e.g., transport, communications, and energy infrastructure). But complex arguments about the best way to distribute tax revenues between the various levels of sub-national government in Moldova are almost irrelevant when the real problem is that the ability of the Moldovan economy as a whole to generate tax revenues of any kind falls far short of supporting the level of public expenditure that is required to implement the necessary economic restructuring. The rise in the level of poverty over the transition period has been caused by both internal and external factors. The dissolution of the Soviet Union, the accompanying disruption of trade and payments, and the price shock after the liberalization of the price of imported energy, all served to damage the economy. The conflict with Transdniestra in 1992, and the continuing regional instability in Gagauzia exacerbated matters further. This made it very difficult for the Moldovan government to implement its poverty reduction strategy, based on sustainable and inclusive growth, human development policies emphasizing increased access to basic services, and social protection policies targeting those most in need (IMF 2000). D

Mindanao

The previous five case study regions can be examined within a wider European – or more specifically, a European Union – context, as can the case of Northern Ireland to be discussed in the next section. But the two remaining case studies – Mindanao and Bougainville – are remote from Europe. Mindanao, a large island in the Philippines archipelago, falls within the context of the group of ten ASEAN (Association of South East Asian Nations) economies that includes Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. Mindanao provides the only case study among the eight where the ethnic basis for the demand for self determination – in this case, the differences between the Christian Filipino and Muslim population – arose in a context where there had previously been overt and serious discrimination (against the Muslim people). At the time of independence, the Muslim political leaders were too remote from the centre of power in Manila to be influential. The education system was biased against Muslim Filipinos, and low educational standards restricted Muslim access to high quality administrative and industrial jobs. This led to a spiral of deprivation that fuelled paramilitary violence.

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Although it is less developed than other regions of the Philippines, the large island of Mindanao is recognized as having considerable potential, but this potential could only be exploited if there was peace and political stability. Unless and until the violence ends, it is difficult to explore this case from an economic policy point of view. Any political solution to the self-determination dispute of the Muslim population is almost certainly to be within the context of a degree of regional political autonomy conceded by Manila. The economic initiatives that will have follow after the political solution are likely to be similar to those already in operation in Northern Ireland or Moldova. E

Bougainville

The self-determination demands of Bougainville were primarily related to issues of ethnic identity. But the economic prospects of self-government or autonomous status were enhanced by the presence on the island of one of the world’s largest copper and gold mines at Panguna – operated by a subsidiary of the international mining conglomerate, Rio Tinto Zinc Ltd. Of course, the revenues from the mine were also important to the economic viability of Papua New Guinea itself. Early attempts in 1975 by the national government and the Bougainville Interim Provincial Government to reach agreement on an equitable sharing of the revenues between the national and local authorities failed. Disputes over the mine – relating to rents, compensation for land, environmental damage, and perceived discrimination against local workers – came to the surface again during the second secession attempt in 1989–2001. This led to the closure of the mine in May 1989, and that closure sent a shock through the already fragile local economy that caused further deterioration in the economy. During the accompanying violence, much of the island’s infrastructure was destroyed or damaged. It is difficult to say anything profound about the socio-economic dilemma that faces the island of Bougainville, with its population of 200,000 people. Bougainville finds itself an unwilling part of the state of Papua New Guinea simply because of what was probably an unthinking, unreflecting, and callously indifferent act of the imperialist powers of the early twentieth century. Perhaps if the island had been joined with the Solomon Islands, the present ethnic violence between the centre (Papua New Guinea) and Bougainville might have been merely a peaceful dispute between local administrations about how the rents from the now closed copper and gold mine should be shared between the islands, and there might be a greater willingness to make a common case to the outside world seeking development aid. IV Economic Policy and Power-sharing: Northern Ireland The details of conflict resolution in Northern Ireland have been described in the case study by O’Leary in Chapter 4. Here we are concerned with the economic policy aspects of the Belfast Agreement, the document that sets out the new in-

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stitutional arrangements within Northern Ireland (subsequently referred to as the North), and between Northern Ireland and the Republic of Ireland (subsequently referred to as the South). At the time of writing, the Assembly set up by the Belfast Agreement has been suspended, precipitated mainly by the slow pace of decommissioning of weapons by the IRA, the paramilitary arm of the Republican movement. But this did not lead to a collapse of the peace process. Many of the benefits that came with the Belfast Agreement are still operating, due both to the generally impartial behaviour of the public sector agencies (including the civil service and the police force), as well as the very harmonious relationships that exist between the British and Irish governments (under Strand 2 of the Agreement, as we shall see). A

Economic Governance in Northern Ireland: Strand 1

The central aspect of the Belfast Agreement is Strand One, dealing with the political governance of the North. Northern Ireland is a peripheral regional economy within the United Kingdom that also happens to be a region that is part of the island of Ireland. Although it enjoyed some policy autonomy in fiscal and public expenditure areas under the Stormont parliament prior to 1972, today the Northern authorities have only limited discretion on regional economic policy. Monetary policy in the North, and almost all elements of fiscal policy, are set by UK norms, although there remains some discretion in the area of regional industrial and labour market policies. The favoured position of the Unionist parties is for the North to continue as a constitutional part of the UK, with minimal formal provision for any North-South political and economic policy structures. The Belfast Agreement established a Northern Assembly and, discounting for the present the important North-South implementation bodies of Strand 2, the Northern economy will continue to function as a region of the UK in much the same way as do Scotland and Wales. This means a perpetuation of the situation where the standard of living that the North experiences is underwritten to a very large degree by the British taxpayer, and where the size of the public sector, and the role played by financial transfers and subsidies, is likely to continue a situation of economic dependency into the medium term. From a Unionist perspective, being a region of the UK carries with it an automatic guarantee of parity in the quality of public services. Having started from a lower base, and having experienced exceptional economic difficulties during the conflict, Unionists feel it quite natural that the North should require a period of ‘catch-up’ during which it will be entitled to attract a greater per-capita subvention than more prosperous UK regions. Furthermore, they argue that this dependence on transfers from Britain acts as a bulwark against any possibility of a ‘united Ireland’, given the inability and/or unwillingness of southern Irish taxpayers to take over the present subvention, and thus sustain the standard of living in the North at its current level.

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The above regional, peripheral framework has implications for the economic governance of the North, with policy-making centralized in London and little in the way of real local policy autonomy. But in the global economy, economic logic commonly cuts across political/national boundaries while leaving these boundaries intact. Political realities, as well as geographical proximity to the Republic of Ireland, have presented the North with what might be termed a ‘Southern’ problem, the resolution of which will require creative and innovative movement in both the spheres of political and economic governance (Bradley 2001). Neither independence nor incorporation into the UK appear to offer an optimum economic solution for the North. The former seems quite infeasible for the foreseeable future, in light of the heavy dependence on financial transfers from London that the South would be unable, or unwilling, to take over (Bradley 1996). The latter is quite feasible (indeed, it represents something approximating the status quo), but it leaves political problems unsettled, has led to a Mezzogiorno situation of chronic economic dependency and fails to normalize relationships with the South. Because of its history, any exploration of the North’s economic relationship with the South is bound to be contentious. A comparison with the situation of other EU regional economies provides an alternative, perhaps less contentious, framework that offers the potential for new insights into the future economic development of the North. However, as noted in Dunford and Hudson (1996), there had been little or no earlier examination of the consequences of placing the North fully in the EU regional economic context, or government policy documents that were explicitly influenced by policy developments elsewhere in Europe. Dunford and Hudson (1996) compared the North with the political and economic governance of four different, but more successful, European regions - Jutland in Denmark, Rhone-Alpes in France, Saarland in Germany, and Abruzzo in Italy. They concluded that the most active regional governments are to be found in the most economically successful regions, and that their ability to exercise a high degree of pro-activity is predicated upon their location within nation-states characterized by decentralized systems of governance. Successful regions tend to be characterized by distinctive forms of local regulation and governance. They also have systems of governance that embrace enabling and facilitating institutions within the local state and civil society, as well as bridging the permeable boundaries between them and adjoining regions and states. Part of the problem of less successful regions (such as the North) is that they are locked into institutional structures that were relevant to an earlier phase of successful economic and political development, but which now constitute a barrier to moving onto a new development trajectory. What is revealing in EU regional comparisons is that inter-regional cooperation does not necessarily require complete, or even extensive, harmonization of economic policies. Rather, it thrives where policy differences are fully understood and are made more transparent against the background of removal of non-tariff barriers to trade through the implementation of the Single Market. Such findings suggest that mutually-beneficial North-South as well as East-West cooperation

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could be built along similar lines if contentious political issues could be resolved. Indeed, the Belfast Agreement points exactly to this conclusion and it is to that we now turn. B

North-South Cooperation and the Belfast Agreement: Strand 2

The cornerstone of Strand Two of the Belfast Agreement is the North-South Ministerial Council whose remit was described as follows: [T]o bring together those with executive responsibilities in Northern Ireland and the Republic of Ireland, to develop consultation, cooperation and action within the island of Ireland – including through implementation on an all-island and cross-border basis – on matters of mutual interest within the competence of the Administrations, North and South.

This Council was designed to meet in different formats: in plenary format twice a year, and in specific sectoral formats on a regular and frequent basis. The activities of the Council includes the exchange of information; discussions and consultation on areas of cooperation; the use of best endeavours to reach agreement on the adoption of common policies in areas where there is a mutual cross-border and all-island benefit; to take decisions by agreement on policies for implementation separately in each jurisdiction in relevant meaningful areas; and to take decisions by agreement on policies and action at an all-island and cross-border level to be implemented by other bodies to be established. During the transitional period between the elections to the Northern Ireland Assembly and the transfer of power to it, it was intended that representatives of the Northern Ireland transitional administration and the Irish government, operating as the North-South Ministerial Council, would undertake a work programme, in consultation with the British government, with a view to identifying and agreeing areas where cooperation and implementation for mutual benefit could take place. In an annex of Strand Two in the Belfast Agreement, twelve possible areas where either new implementation bodies or the use of existing institutions and co-operative arrangements could be used are listed. As part of its work programme, the Council was to identify and agree at least six matters for cooperation and implementation in each of the following categories: a) Matters where existing bodies would be the appropriate mechanisms for cooperation in each separate jurisdiction; b) Matters where the cooperation would take place through agreed implementation bodies on a cross-border or all-island level. The implementation bodies would have a clear operational remit and would implement all-island and cross-border basis policies agreed in the Council. The Council was also to consider the EU dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. The views of the Council were also to be taken

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into account and represented appropriately at relevant EU meetings. Finally, the new Northern Ireland Assembly and the Southern Oireachtas (parliament) were to consider developing a joint parliamentary forum and consideration was to be given to the establishment of an independent consultative forum appointed by the two administrations, representative of civil society, comprising the social partners and other with expertise in social, cultural, economic, and other issues. The political sensitivities involved in drawing up the list of possible areas for North-South cooperation were clearly reflected in the highly technical and tightly drawn nature of the suggested functions. In particular, the list seemed to reflect political compromises made between parties in the negotiations leading up to the Belfast Agreement. This is seen most clearly, for example, by the absence of significant economic and industrial matters, in particular issues such as the promotion of industrial development and the attraction of inward investment. It is interesting to note that the business community – North and South – has argued that the Belfast Agreement did not go far enough in facilitating the economic and business initiatives that they have been promoting on a cross-border or all-island basis (IBEC/CBI 1998). At least in this context, the business community appears to be ahead of politicians in seeing the economic logic of more extensive NorthSouth economic cooperation, in a situation where the political willingness for such ‘deep’ cooperation is absent on the Unionist side (Bradley 2001). Following intensive negotiations, an agreement was reached on 18 December 1998 on matters of North-South cooperation and cross-border policy implementation (Trimble and Mallon 1998). The Trimble-Mallon statement of 18 December listed six North-South implementation bodies: inland waterways, food safety, trade and business development, special EU programmes, language, and aquaculture and marine matters. Finally, the Trimble-Mallon statement contained an initial list of six matters for North-South cooperation through the mechanism of existing bodies in each separate jurisdiction. These included non-controversial aspects of transport, agriculture, education, health, the environment, and tourism. A better understanding of the outcome of the Trimble-Mallon talks can be obtained from an earlier statement of Mr Trimble where he set out three principles that his party intended to apply to the selection and design of the cross-border implementation bodies (Trimble 1998). First, any new body should have demonstrable advantages both for Northern Ireland and for the Republic of Ireland. Second, Northern Ireland’s ability to develop a vibrant and competitive economy on a sound basis should not be impaired. Third, Northern Ireland’s identity should not be submerged in a new all-Ireland identity. The Belfast Agreement enshrined the principle that the people in Northern Ireland consent to the continued existence of Northern Ireland within the UK, and others, including nationalists, endorsed the legitimacy of that choice. While the logic of the first point – the necessity of mutual benefit – is obvious, the defensive logic of the second and third points – access to local policy instruments and regional identity – stands in contrast to the latest thinking on the dynamics of regional economic development where national and regional governments have a series of vital roles to play

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in promoting economic growth and development (Porter 1998). So, the crossborder institutions set up under the Belfast Agreement, however beneficial, leave many unresolved issues and appear to have had only a weak impact on easing inter-community tensions. V

Conclusions

Poor countries, and in particular regions with self-determination conflicts, often have inadequate financial resources to address their developmental problems. If left to their own devices, such countries run the risk of drifting further into poverty, and thus further threatening internal socio-economic cohesiveness. Poverty and conflicts of self-determination tend to form a vicious circle that can easily spiral out of control. In the immediate aftermath of conflict, regional, national, and international economic policies must focus on the restoration of stability and the repairing of war-damaged infrastructure. But the major contribution of economic policy tends to come in the longer term. When preparing national and regional strategies for investment in the postconflict case study regions, we have suggested that it may be useful to reflect on the pattern that emerged in the EU structural aid programmes. These are usually classified into three broad economic categories: support for basic infrastructure (i.e., roads, telecommunications, etc.); support for human resources (training, retraining, etc.); and support for productive structures (investment and marketing subsidies, etc.). Such programmes provide examples of how economic policy within the EU is shifting from one appropriate for independent and individualistic states to that of region-states fully integrated into an encompassing European economy. The willingness to go down this road was conditioned by domestic policy failures of the past. Few people believe any longer that impacts emanating from national discretionary demand management and ‘fine tuning’ policies provide durable support for success in the long run. At best, policies designed to stabilize the economy will provide the basis for subsequent sustained growth. Stabilizing at a low level of welfare, exacerbated perhaps by regional inequalities, is never an enduring solution. Krugman (1997) has described the issues that will be central over the next decade to the management of many of the small open economies described in the case studies. For example, he suggests that industrial revitalization will be led by an initial clustering of similar industries supported by local suppliers of specialized inputs subject to economies of scale. These clusters are likely to generate a local labour market for skilled workers, which further facilitates the growth of the cluster. Appropriate human resource policies are crucial at this stage. Spillovers of information will further encourage growth in the initial sectoral cluster and provide the basis for additional clustering effects, often in traditional areas that benefit from new technologies (e.g., food processing, textiles, clothing). To facilitate this stage, the improvements in physical infrastructure and in the productive environment are crucial. Finally, a consensual process of social partnership

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needs to be put in place to ensure that there are as few losers as possible in the economic restructuring that accompanies such a virtuous circle, with the result that growth is less likely to be choked off by industrial unrest if the social partners fight over their respective shares of added value. More generally, and almost without exception, the small states of the case studies will have to carve a path between liberalism and statism, and will need to evolve towards indirect forms of economic control (Katzenstein 1985). What will characterize the economic and political experience of small states and what will set them apart from the large industrial countries will be the ‘premise’ of their planning efforts: namely, adaptation to external market forces. Detailed comprehensive sectoral planning efforts will be increasingly inapplicable, simply because of the openness and vulnerability of their economies to external pressures. Their main challenge will be that of selecting the planning devices that are in harmony with their social objectives. Hence, the rationale for state intervention depends on the ability or otherwise of market forces to yield results consistent with these social objectives. Because of their lack of autonomy, their strategies must be flexible, reactive, and incremental. They cannot oppose change by shifting its costs to others. Neither can they ignore change if they wish to prosper. Their economic policies are seldom the root cause of conflicts of self-determination, and neither are they the only solution. But they can be an important part of the longer term solution.

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Chapter 18 Policing Territories Previously Subject to Civil War and Ethnic Violence Philip Towle

I

Introduction

In unsettled communities plagued by ethnic tensions, the establishment of an efficient and impartial police force is crucial to attempts to restore harmony. By definition, a peaceful, settled community trusts its police forces to enforce the law equitably and to bring criminals to justice. A deeply divided community naturally produces a police force distrusted by one or more ethnic or social group. Such a force, in turn, reinforces the divisions in society, leading to a vicious circle of suspicion and tension. A major objective of recent peace settlements after civil conflict has been to break this circle by establishing a police force that has the confidence and support of all parts of the community. Despite the importance of policing, much less has been written about the problems of policing ethnically divided communities than about peacekeeping with military forces. This is partly because armed forces ensure that they publicize their activities and partly because efforts by the police to mediate fairly are undramatic and may take years to have an impact. Military peacekeepers are like the ambulance that rushes to the scene of an accident to save the lives of those involved, whereas police forces resemble the family doctor who has responsibility for day-to-day health care – the former is visible and spectacular but it is the latter who has the greatest impact on people’s lives. Monitoring, advising, and training local police forces to reduce sources of conflict has long been an aspect of peacekeeping operations. More recently, in East Timor, Haiti, and Kosovo, the peacekeepers actually took over executive policing (Hansen 2002). It is not, however, with the progress of these operations that this chapter is primarily concerned but with measures to reform or create indigenous police forces after internal conflicts. 

For efforts to publicize peacekeeping activities, see Clifford and Wilton 2002. Note the virtual absence of references to police work in this collection.

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 559-569

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In a civil war, the police force normally either collapses and disperses or takes one side in the conflict. In a guerrilla or terrorist conflict, the police force is identified with the government both symbolically and actually. It is the key agent in anti-insurgent activities, hence the emphasis placed on its efficiency by theorists and practitioners of anti-guerrilla operations. In many ethnic conflicts, the police force itself will have been involved in widespread abuse of human rights, further alienating minority communities. On its side, the police force is likely to develop bitter hostility to those who attack its members and, because they are normally the first people on the scene after an attack, against those who kill or maim civilians during the course of the conflict. For all these reasons, most recent settlements following complex ethnic and religious disputes place great stress on the constitution and make-up of the police forces, because the negotiators know that such forces’ future behaviour will quite largely determine relations between the communities. Signs of bias amongst the police will re-awaken antagonisms. Conversely, if the police can show that all will be treated equally before the law, confidence in the organs of the state may gradually be re-established. The negotiators of peace settlements in Northern Ireland, Kosovo, Bosnia, Montenegro, and elsewhere have tried to increase the proportion of ethnic minorities in the police force. In many cases, international organizations have played a constructive role by monitoring and improving the quality and the skills of these forces, helping to establish police academies and seconding officers from other police forces to work with the reconstituted police. II

Case Studies

A

Northern Ireland

The Northern Irish case illustrates the difficulty of increasing the proportion of ethnic minorities in an existing police force while simultaneously maintaining the efficacy of the force and the trust of the majority community. Despite the loss of 300 police officers in 30 years of ethnic violence since 1969, the Royal Ulster Constabulary had survived and borne the brunt of much of the rioting and civil unrest. It was drawn almost entirely from the Protestant community, not least because the IRA killed, or threatened to kill, any Catholics who ventured to join. The Northern Ireland peace settlement led to the establishment of an Independent Commission under Christopher Patten to consider reforming the constabulary. This recommended the creation of a Policing Board to oversee the force, made up of elected representatives from the various communities, and suggested that the police should recruit equal numbers from the Catholic and non-Catholic populations over the next decade, so that 30% of the force would be of Catholic origin within ten years. 

For example, the account of the behaviour of the Royal Ulster Constabulary in Hastings 2002: 33 ff.

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The British government believed it had to take more account of feelings within the Protestant majority in Northern Ireland, the morale and loyalty of the Royal Ulster Constabulary, and the advice of the British security services. As a consequence, they tried to implement the proposals in modified form, although some of their modifications were withdrawn under pressure from the Catholic community. Patten wanted the force’s name changed to the Northern Ireland Police Service, while the title chosen was ‘The Police Service of Northern Ireland (incorporating the Royal Ulster Constabulary)’ (PSNI). The government reduced the period when the police would have to recruit equally from the two communities from ten years to three. The government also insisted that the Union Jack fly on government buildings on specified days – Patten would have removed the flag and the Queen’s portrait from police stations. For both sides, these were deeply emotional issues: the RUC believed that their sacrifices had been ignored by the Patten Commission, while the Catholics often maintained that the new Police Service was just the old RUC under a thin disguise. As a result, the IRA used the changes to justify its refusal to ‘decommission’ its weapons and this has periodically led to the suspension of the whole Agreement. The power of the Policing Board was less than Patten had proposed, so that the Secretary of State for Northern Ireland oversees the Board, and the Chief Constable of the PSNI can refuse requests from the Board if he should choose to do so. On the other hand, the Board has significantly more power than its predecessor, the Police Authority for Northern Ireland. Of the nineteen members of the Board, ten are from the National Assembly. The other nine positions are advertised and the applicants interviewed. All members are appointed by the Secretary of State to reflect the various parties and communities in the province. The Chief Constable answers to the Board on any significant aspect of policy, although he can make decisions that he believes are necessary to maintain law and order. After consultation with the Chief Constable, the Board sets targets for police performance and monitors progress towards these. It monitors police actions in line with the Human Rights Act of 1998, issues a Code of Conduct for all officers, and appoints visitors to make certain that those detained by the police are properly treated. The Policing Board appoints Independent Community Observers to monitor the recruitment of police officers and to make sure that they are treated fairly. Anyone can volunteer to become an observer, except current and former police officers and those with some criminal convictions. District Policing Partnerships have also been established by each District Council to consult with local people and ensure they are satisfied with policing (Northern Ireland Policing Board). B

Macedonia

In contrast to the situation in Northern Ireland, the Albanian minority in Macedonia had traditionally joined the Macedonian police forces and army, albeit in small numbers, and often despite feeling that they were treated like second-class citizens in these bodies. A brief civil war broke out in February 2001 between

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government forces and Albanian rebels, ending with the compromise Framework or Ohrid Agreement negotiated between the communities on 13 August 2001. The Agreement set out measures to increase confidence between the communities. These included better representation of the different ethnic groups in the civil service, police, and armed forces. The Ohrid Agreement allowed local police commanders to be appointed from a list drawn up by the Interior Ministry. At the same time, to try to make the force more representative of the various communities, 1,000 new police officers were to be recruited from the “communities not in the majority” by 2004. The new recruits would be stationed within their local communities and the changes would increase the percentage of Albanians within the whole force from about 3-23%. By June 2003, 632 cadets had graduated from the new nine-month Basic Training Programme, 84% of whom were from ethnic minorities (International Criminal Investigative Training Assistance Programme 2003). Even before the outbreak of the civil war, the US International Criminal Investigative Training Program (ICITAP) had been assisting the Macedonian police. In May 2000, ICITAP concluded an assessment of the police and subsequently began to assist the Macedonian National Police Academy with its training programmes, particularly by establishing a unit to raise professional standards. ICITAP is also reviewing policing in a number of Macedonian towns to assess the possibility of introducing community policing and, possibly, to encourage the donation of relevant equipment. ICITAP is also working with the Macedonian authorities to try to reduce the incidence of human trafficking through the country (International Criminal Investigative Training Assistance Programme 2003). In August 2001, the OSCE secretariat convened an informal working group in Vienna of the European Union Police Unit, ICITAP, and OSCE representatives. This carried out a number of investigations in Macedonia and eventually established an OSCE Police Development Unit to assist the Macedonian government with its police reforms and training. ICITAP and the PDU work together to encourage this activity. The PDU has assigned police trainers to the former crisis areas to work with the local police, mayors, municipal leaders, and citizen advisory groups. Reports from these groups suggest that citizens have increasing confidence in the ability of the police to deal with crime. Neither in Northern Ireland nor in Macedonia was an effort made to specifically integrate the insurgents themselves into the police force, merely to encourage representatives from the minority community to become police officers. Yet the danger of former insurgents reverting to violence either as criminals or as members of a new violent political organization is ever-present after prolonged conflicts. They have, after all, often known nothing but violence. They owe their status in the community to the violence they have used. Some may eventually be sickened by the violence and killing but many would miss the feeling of importance and the sense of belonging to a pivotal group which may disappear when a settlement is negotiated. On the other hand, to integrate them into the police 

For an account by one IRA defector see Collins 1997.

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force itself implies a degree of trust and reconciliation which, for obvious reasons, is often difficult to achieve. C

Mindanao

In Mindanao, in the Southern Philippines, by contrast with the two previous cases, the insurgents of the Moro National Liberation Front (MNLF) were supposed to be integrated into the Philippines’ National Police (PNP) and the armed forces by the settlement of September 1996. Quite quickly, 1,500 former guerrillas were incorporated into the police and 5,250 into the armed forces, as part of the number the agreement had stipulated. Those former insurgents not incorporated were to be re-trained in a “special socio-economic, cultural and educational programme” so that they could improve their chances of earning a livelihood and not feel a need to revert to violence. The combined police force was to maintain order and investigate crimes in the autonomous Moro region. Given the ambitious scope of the whole enterprise and the difficulty of former enemies working together peacefully, however, it was not surprising that there were some subsequent complaints of discrimination in the police and armed forces against the new recruits. D

Bougainville

After nine years of conflict with Papua New Guinea, Bougainville gained a somewhat greater degree of autonomy in policing matters than the Moro region had gained from the Philippines. Under the Bougainville Peace Agreement of 30 August 2001, Bougainville could establish its own police force and the role of the national or Papua New Guinea Police would subsequently be restricted to enforcing national criminal laws. Even this work could be taken over by the Bougainville Police, although the national government would audit the new force’s compliance with national laws. The new force and its commander would come under the control of a minister of the autonomous Bougainville government, but the commander would be appointed (and could be removed) by an independent Bougainville commission and would hold a title below that of the Commissioner of the National Papua New Guinea Force. The Bougainville police were to wear national (PNG) emblems and to develop standards compatible with the national force. Under the Agreement, the national government would also help fund the Bougainville police, and consideration would be given to the wishes of police serving in the national force who wanted to transfer to the new Bougainville service. Despite the good intentions behind these proposals, however, financial problems and local hostility meant that little progress was made and Bougainville was described in June 2003 as “starting from a zero basis in infrastructure terms in most areas except Buka.” New long and medium term plans were then drawn up for policing, the courts, and the justice system. These look forward to the rapid establishment of a Bougainville Transitional Police Service (BTPS) tailored to suit the special circumstances in the area. Former combatants, who were

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members of the JBLEB, are to become special constables until 100 additional fulltime officers have been trained. The aim is to increase the number of full-time police to some 200, to be made up of the 68 existing personnel, 30 experienced police from other parts of the country, and the 100 newly trained officers. In the meantime, communities will have to be reassured about the entry into their areas of the full-time officers who will be deployed across the country. The officers’ role will be to support and supervise the 396 existing community police officers and, if finances permit, to expand their numbers. Communities will be involved in the selection of the new police officers. Bougainville will need extra funds for these projects – many community police officers have resigned in recent months because they have not been paid (Bougainville Administration Officers’ Working Group 2003). Full-time and community police are to work closely with chiefs and other traditional leaders. In rural areas, full-time police are to be directly involved only with serious criminal cases and with issues that cannot be sorted out by the chiefs or village courts. Community policing will also be adapted so that it can be applied to urban areas. To emphasize the break with traditional police methods, a new badge and uniform are planned, and the new title ‘Bougainville Transitional Police Service’ is also intended to symbolize the changes. The officers will not carry weapons in the normal course of their duties. If the long years of ethnic strife have undermined policing in Bougainville, they have also weakened or destroyed the court and justice systems. The National Court has not sat in Bougainville since 2000, partly because of anxiety amongst the court personnel about security and partly because of funding shortages. The result has been that even serious cases, such as rape, have not been tried, and standards of human rights have not been maintained. All district court houses have been destroyed and funds are short for their replacement and for the necessary equipment. The intention is to have court houses in Buka, Arawa, and Buin, providing the local people prove amenable to the plan. Village courts are evidently more popular and many have been re-established, though funding is again restricted and allowances have not been paid since late 2002. The Council of Elders can play a major role in the law and justice system and the administration is seeking funds for their training (Bougainville Administration Officers’ Working Group 2003). Land disputes cause serious problems in many areas. They should not normally go to the Land Court until they have been dealt with by a land mediator, but no mediators have been trained since the conflict began. Bougainville is seeking help from Australia and New Zealand to help re-establish this system. The prison or lock-up system has also broken down. Lock-ups are needed in Buka, Arawa, and Buin, but there is local resistance. The plan is for the Hutjena facility in Buka for people on remand or serving short sentences to be replaced, and for other lock-ups to be re-established when local communities agree.

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E

Kosovo

In Kosovo, following the conflict between the Serb and Albanian inhabitants of the province, a wholly new police force was established under the aegis of the United Nations Mission in the province (UNMIK) and the OSCE. The two national communities were encouraged under the Interim Agreement to volunteer for the new police force. The recruits were then to be sent to the Kosovo Police School, and only after they had successfully completed the course would they be offered employment in the police force. The School was thus given a vital role in the construction of an effective force that could restore the rule of law and end the revenge killings that were so frequent immediately after the war. In February 2000, a Professional Standards Unit was established to investigate any complaints made against the police by the public. During the course of that year, twenty-one officers were reprimanded, eighty-three were suspended without pay, and seventy-two were sacked. It was posited that previous political activities would specifically not act as a bar to joining the police. Although the Agreement did not encourage former insurgents to volunteer, many did so. By the end of 2002, 39% of officers were former KLA members. That they took a risk was clearly demonstrated by the murder of Ekrem Rexha outside his home on 8 May 2000. Rexha was a former commander of the Kosovo Liberation Army and one of the first to join the new police force. The Agreement allowed for a force of up to 3,000 communal police officers, although this could be increased or decreased as the need arose and as the Criminal Justice Administration advized. Recruitment from local communities was vital if trust was to be re-established. In Zubin Potok, for example, 90% of the community were Serbs, with a deep suspicion of the police force. Until officers were recruited from the local community, it proved impossible to create the necessary confidence. These and other police officers were not armed normally, although a rifle was to be maintained for every fifteen police officers. The communal police commander had to gain permission from the Interior Ministry to use the weapons except in cases of self-defence. When the peace settlement was reached, the Ministry Interior Police of the Yugoslav state were still operating within Kosovo. They were to be withdrawn within a year and the combatants, including the Kosovo Liberation Army (KLA), were to surrender their heavy armaments and some small arms. Subsequently, the Yugoslav police could enter Kosovo in hot pursuit of serious criminals, but they were to notify the authorities in Kosovo within an hour of doing so. The Republic of Serbia’s Border Police would continue to exercise authority at the international border crossings around Kosovo but they were to recruit from the Kosovo population and they were also obliged to go for training at the Kosovo police academy. The UNMIK Police Commissioner, Christopher Albiston, reported in 2002 that the number of serious crimes had remained constant. Of these, however, the number typical of a society recovering from conflict fell significantly. The exceptions included the destruction of one of the coaches in the so-called Nis Express – a crime that killed nineteen people and injured twelve more. When it

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was blown up by a mine, the coach was taking Serbs back to the graves of their ancestors in an area now dominated by Muslims. Forensic evidence enabled a suspect to be found, but he subsequently escaped from a US base. UNMIK Police made a major effort to protect witnesses so that this and other serious crimes could be investigated. They formed a Close Protection Unit to defend those who might be vulnerable to assassination. In May 2001, UNMIK also established a Police Aviation Support Unit (with a helicopter) to overcome some of the difficulties of covering the rugged Serbian terrain. Initially, the International Criminal Tribunal (ICTY) was responsible for searching for the bodies of those who had been murdered during the ethnic violence. However, UNMIK set up a Missing Persons Unit (MPU), and by the end of 2000 this had role had been taken over from ICTY. The MPU had handled 3,915 cases, of which 3,251 relate to Albanian victims, 414 to Serbians, and 59 to Roma. By the end of 2002, about 2,000 bodies had been discovered but not all identified (UNMIK 2002). Like Macedonia, Kosovo lies on a major route for smuggling to and from Western Europe. In particular, the smuggling of drugs, women, and cigarettes causes major problems. Interdiction is particularly difficult because of the length of the border, the rough countryside, and the ferocity and heavy armaments of some of the gangs involved. UNMIK made a major effort to collect the weapons that had been spread out during the conflict. An amnesty brought in 524 rifles, 116 pistols, 30 anti-tank weapons, and 25 missiles. In the month following, 414 rifles and 3 anti-tank weapons were again seized by the police, demonstrating that only a small proportion had actually been surrendered. In February 2003, the UN Secretary-General Kofi Annan was still concerned about the level of crime as well as the violence within the Kosovo Albanian community and towards ethnic Serbs. He recalled that the ethnic leaders in Kosovo often challenged the authority of the UN’s Special Representative there and asked for additional powers, but “they first need solid accomplishments for the benefit of all communities in the areas for which they do have responsibility under the Constitutional Framework.” Similarly, the Secretary-General’s Representative insisted that local leaders must “take a stand against crime … Refrain from extremist statements and … call on the public to cooperate with the police and the courts. Tacit tolerance for crime and corruption must stop.” Plainly, there is some way to go before Kosovo meets the required standards (UNMIK 2003). F

Bosnia and Herzegovina

After the bitter war in Bosnia and Herzegovina between Serbs, Muslims, and Croats, the negotiators of the 1995 Dayton Agreement set a very board framework for dealing with the most urgent issues, such as military disengagement. They set in motion a number of measures for re-establishing law and order, and for building an effective police force. Under Annex 11 of the Dayton Accord, the 

For a graphic account of the spread of bodies through the forests, see Lloyd 1999: 1 ff.

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parties were supposed to provide “a safe and secure environment for all persons in their respective jurisdictions, by maintaining civilian law enforcement agencies operating in accordance with internationally recognized standards.” To assist them, the UN was charged with training the police and monitoring their fairness and professionalism. As part of the UN Mission to Bosnia and Herzegovina (UNMIBH), it established an International Police Task Force (IPTF) numbering more than 1,500 for this purpose. Its members were to accompany local police forces and ensure that they carried out their work fairly and responsibly. Resistance from some of the ethnic groups was initially often fierce, as Carl Bildt, the European High Representative, later recalled (Bildt 1998: 354). Moreover, at the beginning of 2001, only 3% of the police came from ethnic minorities, compared with a target of 28%. Nevertheless, by December 2002, when the UN Mission in Bosnia and Herzegovina (UNMIBH) was dissolved, it was considered that great progress had been made. Kofi Annan said that it had been the most extensive police reform and restructuring effort ever made by the UN and that Bosnia and Herzegovina now had a police force “fit for Europe” (UNMIBH 2002c). One indication of this was the growing number of refugees who dared to return to their homes: 67,000 in 2000, 92,000 in 2001, and even greater numbers in 2002. The number of regular police had by then been reduced from 40,000 during the war years to 18,000. 159 police officers had been sacked for wartime and other offences. 1,165 cadets had been trained or were under training, including over 400 women. 13,000 cases of alleged human rights abuses by police had been investigated. The UN had also made a start with establishing non-political Commissioners to insulate them from political influence, and by June 2000 had begun to deploy a multi-ethnic State Border Service to combat smuggling and other crimes. This was estimated to have increased state revenues by some 20%. The UN had brokered an agreement between Bosnia and Herzegovina, Croatia, and Serbia-Montenegro to set up a Committee of Ministers and a Regional Task Force (RTF) to combat illegal migration, terrorism, and organized crime. Subsequently, the UN negotiated an agreement with Hungary to join the RTF, further enhancing its efficiency. It also encouraged the establishment of a National Bureau of Interpol in Sarajevo. Assembling international groups of policemen, such as the IPTF, which served in Bosnia and Herzegovina, is often more difficult than assembling military forces for peacekeeping. Armed forces are usually only intermittently employed in warfare and their governments may be pleased to second them to peacekeeping forces to gain prestige, to give them further experience, particularly of working with more professional forces, and to remove them from the national budget. But police forces constantly have to deal with criminal activities and thus have no ‘spare capacity’ in the same way. Moreover, because of the steep pyramidshaped hierarchy of military forces, there is a large pool of former officers who have retired, not because of their incompetence but for family and other reasons. They can be called upon by the OSCE or the UN for peacekeeping activities. 

For information on policing in Bosnia and Herzegovina, see UNMIBH 2002a; 2002b.

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Because of the different career structure of the police, there is a far smaller pool of competent and reliable retired police officers. On the other hand, the shortage of police officers makes it essential that, for an organization the size of the IPTF, recruits have to come from a larger group of countries than is usually the case with peacekeeping forces. In October 2001, the more than 1,400 members of the IPTF included officers from forty-three countries including Argentina, Austria, Bangladesh, Bulgaria, Kenya, and Switzerland (UNMIBH 2002d). G

Moldova

The extent of external involvement in the settlements in Kosovo and BosniaHerzegovina was unusual. Following the tension in Moldova between the central authorities and the inhabitants of Gagauzia, the ensuing peace settlement allowed no such involvement and concentrated mainly on the economic and cultural grievances of the inhabitants of Gagauzia. By granting them a measure of autonomy, they were enabled to pursue links with Turkey, Russia, Italy, and other countries, but not to establish a semi-autonomous police force. Nevertheless, the Law on the Special Legal Status of Gagauzia passed by the Moldovan parliament was careful to delineate the way the police forces were to be controlled. The Chief of the Department of Internal Affairs in Gagauzia was to be appointed by the Moldovan Minister of Internal Affairs on the recommendation of the elected Governor of Gagauzia with the agreement of the People’s Assembly. The Chief was to appoint the Commissars of the police commissariat, but the chief of the municipal police was to be appointed by the Governor of Gagauzia following a proposal by the Chief of the Department of Internal Affairs of Gagauzia. Such an apparently cumbersome and balanced scheme was, no doubt, intended to abate criticisms and fears of the power of the Moldovan state. III Conclusions Thus, there is a spectrum of ways in which complex power-sharing arrangements deal with police forces after ethnic conflicts and no pattern can be prescribed for all cases, not least because arrangements acceptable in one country could exacerbate the violence in others. In some cases, such as Moldova, the negotiators have felt that carefully-tailored constitutional arrangements may be sufficient to provide the minority communities with confidence in the arrangements. The Patten Commission wanted to transform the Royal Ulster Constabulary in Northern Ireland by re-naming it, changing the way it was controlled, and encouraging the recruitment of Catholics. Although its proposals were not all accepted by the British government, those implemented represented a substantial change that has become more obvious as the peace process advances. In Macedonia, the peace settlement increased the proportion of ethnic Albanians in the police and particularly encouraged such recruits to carry out their duties in areas where Albanians predominated. More ambitiously, the settlement with the MNLF in the Phillipines specifically encouraged former insurgents to join the police and army.

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In Bougainville, funding shortages and the sensitivities of local communities about seeing a formal system of policing introduced and prisons and law courts re-established have led to heavy reliance on councils of elders and community policing and courts. In Kosovo, a new force was established that, unlike its predecessor, was representative of the ethnic makeup of the region. The province continues to suffer from high levels of crime, but progress has been made with the establishment of a local force. In many of these cases, international institutions, such as the UN or the OSCE, laid down standards and monitored the various forces to ensure that the agreed-upon standards were upheld. In Bougainville, neighbouring countries, including Australia and New Zealand, have had a major role in providing financial assistance. Each complex power-sharing agreement has to be tailored to the situation, but all show the importance of establishing police forces that are or can grow to be trusted by the various communities after ethnic and religious violence. Each case may have some lesson(s) to offer future cases of complex power-sharing arrangements. In the last decade, UN peacekeeping operations have been intensively studied in armed forces, research institutes, and university departments to avoid previous mistakes – but nothing like as much effort has been expended on the ways in which police forces have been reformed or re-created in divided states during the same period, yet it is the policing that may in fact be more important to long-term peace and stability. These policing activities demonstrate the role that international institutions can play in monitoring police actions and encouraging fair behaviour towards the different ethnic communities. The education and training of police forces are clearly vital, and the international community has played a major role in the education of many of the newly-established or reformed police forces. It will be years before it becomes clear how far the new or reformed police forces have lived up to the international community’s hopes and the expectations and wishes of the local populations. Much will depend on the national leaders’ insistence that the police treat all communities fairly, protect them against attack, and investigate their complaints against their neighbours or the police themselves. A respected and efficient police force is the basis of a settled, ordered community: only by the establishment of such a force can progress be made on breaking the vicious circle of distrust and violence between ethnic communities. Have we addressed the critical importance of policing in complex power-sharing? In many ways, it is one of the more important and visible day-to-day interfaces of such arrangements with the population(s) concerned. It is thus a critical issue and, while it may seem largely unregarded, it is actually a vital step in making such power-sharing arrangements work. Is this a step that should ideally be undertaken very early in the process as it can foster much-needed confidence in such processes and the future? Or is it that because it is potentially so very important (and often important symbolically also) that it is actually such a contentious area that it may be a subject that the parties may find it hard to reach agreement on how to participate?

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Chapter 19 The Military Dimension of Security Sector Governance in Complex Power-sharing Arrangements Paul Cornish

I

Introduction

Do complex power-sharing arrangements offer the means to address and resolve the underlying causes of self-determination conflicts, and might such arrangements offer inclusive and durable futures, within which political and social stability can reasonably be expected? It is clear that the interest in complex power-sharing has both practical and normative dimensions. In this respect, expectations of complex power-sharing are similar to those found in another area of contemporary political science concerned with conflict resolution – security sector governance. Security sector governance (SSG) seeks to eliminate armed conflict by developing policies specifically focused on the reorganization, rehabilitation, and governance of organized armed forces (whether formal or informal) and other elements of the security sector, such as armed police and border guards. One recent and authoritative study of peace operations and post-conflict reconstruction described effective reform of the security sector as the “sine qua non of postconflict reconstruction” (Dahrendorf 2003: 13). Lakhdar Brahimi, head of the UN mission in Iraq makes a similar point: “When you speak about creating a national army you are talking about the first development project … because without it you are not going to have anything else that lasts” (Financial Times 2003). In its more ambitious guises, however, security sector governance is also characteristically normative. More than merely addressing local causes of tension and dispute and removing the means to fight, SSG sets out to improve civil-military relations and, in short, to improve society by privileging means other than armed force in the settlement of disputes and disagreements. The purpose of this chapter is to test the compatibility of two sets of ideas: complex power-sharing (CPS) and SSG. Both are central features of the debate on post-conflict reconstruction and state (re)formation, and the literature in each case is extensive. Orthodox academic and policy-oriented analysis generally accepts that post-conflict reconstruction programmes must be comprehensive, adMarc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 571-597

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dressing both power-sharing and security sector issues, as well as issues concerning social, judicial, and economic reform (CSIS 2002). Yet in the process, the complex (and, occasionally, dysfunctional) relationship between power-sharing and reform of the security sector has largely been overlooked. One notable exception is Davis and Pereira’s collection of essays on the role of irregular armed forces in state formation, which argues trenchantly that where state formation and post-conflict reconstruction are concerned, a broad definition of the security sector is essential in order to comprehend the destructive and constructive potential of irregular armed forces. Irregular armed forces, of course, are a particular challenge to power-sharing arrangements in that they are a forceful, if not violent, expression of the cultural, ethnic, and civil society differences that must be bridged. At the same time, irregular armed forces might also be expected to be most resistant to security sector governance initiatives, which might be seen as a threat to their power and influence (Davis and Pereira 2003). More typical of the literature is Rees’ study of security sector reform in post-conflict transitional administrations, which describes the challenge as “a unique and complex undertaking”, but merely hints at the possibility that many of the difficulties confronting the United Nations Transitional Administration in East Timor were caused by the inability to co-ordinate security sector reform and power-sharing activities (Rees 2002). To ask whether security sector governance initiatives can function and be effective in the context of complex power-sharing arrangements is more than merely an academic inquiry. The scope and utility of both CPS and SSG must, to a considerable degree, be reflected in the vitality of the relationship between them. From the outset of any attempt to settle a self-determination dispute through power-sharing, it would be reasonable to suppose that military (both regular and irregular), paramilitary, and police agencies must in some way be drawn into the process. But there are practical and conceptual difficulties here. How can powersharing arrangements manage such agencies when they might, typically, be more concerned with power maximization and physical and economic dominance? By what argument and by what means can advocates of CPS bring military and police forces into the process, to ensure that a reformed system of governance based upon power-sharing is matched by a reformed security sector that is designed to be compatible with power-sharing? Conversely, security sector governance initiatives are characteristically Weberian and centralist, in that they emphasize the indivisibility of key state security and coercive functions (police, military, border guards, customs, etc.). In that case, how can such initiatives manage the deep cultural and ethnic differences that might be expected in post-conflict situations, particularly where regular and irregular armed forces remain significant actors, other than through reliance on a carefully crafted power-sharing arrangement, such as consociation between different ethnic groups? Following a discussion of security sector governance, this chapter draws general and specific lessons from eight case studies in complex power-sharing: Bougainville; Bosnia and Herzegovina; Gagauzia; Kosovo; Macedonia; Mindanao; Northern Ireland; and South Ossetia.

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II

Security Sector Governance

Interest in the politico-military character and stability of economically undeveloped and/or democratically deficient states has, since the 1950s at least, become something of a preoccupation for policy-makers and political sociologists alike (Huntington 1957; Finer 1988). Since the end of the Cold War, in the context of the progressive blurring of the boundaries between so-called ‘hard’ and ‘soft’ security, much of this interest has been re-energized by the ‘security sector’ policy and research agenda. While the decades-long pedigree of much of this thinking ought generally to be acknowledged, it is nevertheless clear that the 1990s brought two new dynamics to the fore. The first was a shift within the development assistance community from interest in (reluctant or otherwise), to engagement with the security sector. Clare Short, formerly UK Secretary of State for International Development, noted how: “Development organizations have in the past tended to shy away from the issue of security sector reform” (Short 1999: 2). The second dynamic was the associated realization that the security sector is a complex, multi-level phenomenon, management of which requires a complex, inter-disciplinary, and inter-departmental response. The concepts that frame discussion of the security sector are sharply contested, and the new technical language that has been developed is too often imprecise or overlapping in meaning: ‘security sector reform’; ‘security sector transformation’; ‘security sector reconstruction’; ‘defence transformation’; and ‘security sector governance’. This chapter uses the latter expression, on the basis that it appears in the literature to incorporate and to have superseded the alternatives (Dahrendorf 2003: 36). But what is the ‘security sector’, when does it become a matter of interest, and what is meant by its ‘governance?’ Definitions vary greatly, within and between the research and policy sectors. Cooper and Pugh argue that the cardinal feature of the post-Cold War security sector debate is the wide (or perhaps widening) recognition that the security sector constitutes “something broader than solely the military” (Cooper and Pugh 2002: 5). Adopting this approach (itself drawn from the work of security sector analyst Nicole Ball (Ball 2001)), the security sector can be said to incorporate the following actors and organizations: • Security forces (military, paramilitary, police); • Agencies of government and parliament responsible for oversight of these forces; • Informal security forces; • The judiciary and correction system; • Private security firms; and • Civil society (Cooper and Pugh 2002: 5). Others, however, have been more sceptical that a consensus definition has emerged. Hendrickson and Karkoszka argue that “there is not a universally acceptable definition of the security sector” (Hendrickson and Karkoszka 2002: 5), choosing to describe the security sector more functionally:

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•

•

•

Forces authorized to use force: armed forces; police; paramilitary forces; gendarmeries; intelligence services (including both military and civilian agencies); secret services; coast guards; border guards; customs authorities; and reserve and local security units (civil defence forces, national guards, presidential guards, militias, etc.). Security management and oversight bodies: presidential and prime ministerial offices; national security advisory bodies; legislature and legislative select committees; ministries of defence, internal affairs, foreign affairs; customary and traditional authorities; financial management bodies (finance ministries, budget offices, financial audit and planning units); and civil society organizations (civilian review boards, public complaints commissions, etc.). Justice and law enforcement institutions: judiciary; justice ministries; prisons; criminal investigation and prosecution services; human rights commissions and ombudsmen; correctional services; and customary and traditional justice systems.

The security sector largely comprises these three categories. But there is also a fourth category – non-statutory security forces – which can have a “significant influence of economic and political governance” (Hendrickson and Karkoszka 2002: 5), such as guerrilla armies and political party militias. Perhaps the most comprehensive definition, incorporating key agencies as well as key functions, is that provided by the UK Department for International Development (DFID). DFID has a strong reputation internationally for exploring the policy dimensions of the security/development overlap, and has produced policy accordingly. DFID’s comprehensive definition of the security sector is as follows: Core security actors: Armed forces; police; paramilitary forces; gendarmeries; presidential guards; intelligence and security services (both military and civilian); coast guards; border guards; customs authorities; reserve of local security units (civil defence forces, national guards, militias). Security management and oversight bodies: The Executive; national security advisory bodies; legislature and legislative select committees; ministries of defence, internal affairs, foreign affairs; customary and traditional authorities; financial management bodies (finance ministries, budget offices, financial audit & planning units); and civil society organizations (civilian review boards and public complaints commissions). Justice and law enforcement institutions: Judiciary; justice ministries; prisons; criminal investigation and prosecution services; human rights commissions and ombudsmen; customary and traditional justice systems. Non-statutory security forces:

19  The Military Dimension of Security Sector Governance in Complex Power-sharing Arrangements Liberation armies; guerrilla armies; private body-guard units; private security companies; political party militias. (DFID 2002: 7).

Some differences of opinion remain over the relative merits of a ‘narrow’ definition of the security sector (i.e., one which focuses largely on military actors and issues), as opposed to the ‘broad’ definitions of the sort outlined above (Hendrickson and Karkoszka 2002: 4; Costa and Medeiros 2002: 26, 28, 29, 41). There is, however, widespread consensus among security sector analysts that broad definitions are both more useful and more accurate. While accepting that preference, this chapter is nevertheless focused more narrowly on the reform of the military dimension in complex power-sharing arrangements. Having established what comprises the security sector, the next step is to ask when it is appropriate to seek to modify a given security sector: before, during, or after a conflict. The notion of security sector modification as prophylaxis (i.e., initiatives that take place before deterioration into tension and conflict – armed or otherwise) is practically and conceptually incoherent; the crisis that might rationalize the modification of the security sector has not yet taken place, and as a result the necessary processes and political will may not be available. Empirically at least, a better case could be made for security sector modification during a conflict. But it seems unlikely that elements of the security sector, while engaged in what they see to be their primary function (and perhaps even seeking their own survival), would accept or even be interested in ideas that would be perceived to involve the redistribution, reduction, or removal of the authority and armed capacity of security sector actors. There is some evidence of disarmament, demobilization, and reintegration (DDR) activities that have taken place during conflict, but this seems sufficiently counter-intuitive to be regarded as the exception that proves the rule (Hagman and Neilsen 2003: 3). As the cycle of conflict progresses, and eventually tends towards stabilization, reconciliation, and reconstruction, so the opportunity for intervention in, and modification of, the security sector becomes more apparent, simply because it is not until this point that the environment has eased sufficiently to allow the concentration of all those concerned to focus beyond the immediate or very short-term crisis they have been confronting. But this is also the point at which the scale of the challenge of intervening in the security sector becomes apparent – any intervention will involve several agencies and disciplines, engaging with a variety of security sector actors, at various levels. In other words, it can be said that whenever the long-awaited moment for security sector intervention arrives, the demand is instant and total, and the response must be complex and multilevel. 

For a useful account of the DDR experience in Angola in the early 1990s, see Anstee 2003: 476-478, 496. For DDR in Bosnia and Herzegovina, see Heinemann-Grüder and Pietz 2003.

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Security sector governance can be said to incorporate three types of activity: stabilization, oversight, and, finally, development of the security sector. Stabilization is characteristically a practical activity, and is clearly the necessary precondition for oversight and development. But it is important not to regard security sector governance as a linear activity that begins with a set of easily comprehensible practical measures and gradually becomes more progressive and norm-driven as the market can bear. They might not take place simultaneously, but practical and normative aspects of security sector governance are all essential aspects of the overall process. A

Security Sector Stabilization

The working assumptions of security sector stabilization are that the target security sector is sufficiently discrete and can be reoriented into a more benign form, rather than be replaced in its entirety. The simple goal of security sector stabilization is to make the established security sector more efficient, stable, and predictable, improving the prospects for longer-term projects – economic, developmental, military, industrial, commercial, diplomatic. Stabilization activities are characteristically practical, and often low-level, addressing primarily military structures (assumed to be the best-trained, and most effective, users of violence), but including paramilitary forces and police forces if necessary and appropriate. Typically, attention will be given to DDR activities, to levels and standards of training, and to equipment procurement and standardization. Stability of another sort might also be pursued, in terms of improving the efficiency and oversight of security sector budgeting (including off-budget military expenditure). For all their significance in the broader project of security sector governance, stabilization activities are short-term, and deal mainly with symptoms. If mishandled, activities of this sort can be counter-productive and damaging to long-term goals. For the recipient, a tightly-focused, practical approach to security sector change can appear to be a thinly disguised attempt to impose western or Anglo-Saxon models and procedures (Chuter 2000: 14), rather than the preliminary phase of a longer-term, more enlightened and constructive engagement. Security sector stabilization must be perceived to be a means to an end (rather than the construction of a new military elite enjoying a privileged relationship with the donor) and must be expected to bring about change, the result of which will be its subordination to civilian authorities. The pledge of usd 10 million by the US Department of Defense in 2000 to ‘re-professionalize’ the Nigerian army prompted the following comment: The programme, run by the private security company Military Professional Resources Incorporated (MPRI), includes initiatives appropriate to the broader conception of reform, such as developing a civilian oversight structure. But it also has the stamp of an old-fashioned military aid package in its provision of military equipment. At the 

On the subject of off-budget military expenditure, see Hendrickson and Ball 2002.

19  The Military Dimension of Security Sector Governance in Complex Power-sharing Arrangements extreme, a concern with the importance of security as a precondition for development (and thus the need for reform of the security forces to achieve this) can offer an opportunity for those who wish to reintroduce Cold War conceptions of the broader modernizing potential of the armed forces. This approach needs to be guarded against, as focusing exclusively on the role of military forces as agents of, but not targets for, modernization risks elevating them to precisely the kind of pre-eminent social and political role that security-sector reform aims to prevent . (Cooper and Pugh 2002: 20).

B

Security Sector Oversight

Security sector oversight initiatives introduce a more normative dimension. Broader in scope than the stabilization activities, oversight programmes are characteristically politico-military, and begin to address the norms, standards, and prospects for civil-military relations in the target security sector. As well as continuing with DDR activities, oversight programmes may include the professionalization of armed forces, as seen in the US support to the African Centre for Security Studies, and in the UK advice and assistance to the governments of Rwanda and Bosnia and Herzegovina in the creation of military/security sector staff colleges. Oversight activities have been most advanced in Central and Eastern Europe, involving the development of democratic institutions and the insistence on democratic control of armed forces as part of a wider process of political, societal, and economic transition (or ‘westernization’ into the NATO and EU fold). The essence of this approach has been summarized as: Redefining the respective roles of local security organizations and institutions in postconflict states, and training them to be professional, transparent and accountable institutions that are responsive to the needs of the society and its citizens (International IDEA 2002: 3).

Once again, however, oversight projects can create adverse impressions if mishandled. Attempts to professionalize local armed forces, for example, might be perceived to be attempts to impose culturally inappropriate ‘Sandhurst’ (UK) or ‘West Point’ (US) models of military professionalization and civil-military relations. A more serious objection might be that oversight activities run the risk of raising expectations, through the use of expansive, ambitious, and normative language, which are not or cannot be met at the practical level. DDR programmes, for example, if not carefully grounded, might result in demobilized but deeply disaffected former soldiers unable to obtain gainful, non-security-related employment. C

Security Sector Development

Security sector development is the most ambitious and explicitly normative set of activities, as well as being the area of policy where the goals of social and

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economic developmentalists are most evident. It is at this point in the broader programme of security sector governance that connections are made between the target security sector and “wider issues, including the political economy of conflicts and the ways in which the economic and security policies of developed states can perpetuate local war economies” (Cooper and Pugh 2002: 57). Simply put, security sector development connotes a shift in thinking and practice from the injunction to ‘do no harm’ (through stabilization activities, DDR, retraining etc.), to ‘do good’, by encouraging a stabilized and supervised security sector to become a net contributor to broader human and societal development. The goal of security sector development is to achieve structural change and improvements that will benefit the state in the long-term. Typical security sector development activities include the following: • Civilian control over the military; • International humanitarian law and human rights training for members of the military; • Parliamentary oversight of the security sector, and accountability and transparency; • Promotion of civil society oversight of the security sector; and • Support for demobilization and reintegration of ex-combatants in post-conflict situations (Short 1999: 5). An important aspect of security sector development is that it should see the initiative in security sector governance shifting from external to indigenous agencies. A good example of transition was the Mandela government’s stress on security sector change after the 1994 election in South Africa, where: “The process benefited from the provision of external funding and advisors, but it was primarily generated from within the country” (Smith 2001: 10). As responsibility is assumed locally, the demand for external intervention and direct donor involvement begins to diminish, but other forms of constructive international engagement will be encouraged. As it becomes embedded locally, security sector development can also lead to the development of a regional or even global consciousness, in the form of “a multilevel and multifunctional strategy that addresses not just the domestic environment of the state but gives equal weight to change at the regional or global level” (Cooper and Pugh 2002: 23). As security sector governance approaches its zenith, and expectations rise, the costs of failure can also be at their highest. From the perspective of an intervening or donor government, the costs in financial and political terms could still seem very high, while the rewards and indicators of success appear increasingly marginal, or based on assessments so long-term and conditional as to be outside the usual political cycle. Locally, as the reform agenda reaches its most mature and complex state, the demand for trained and reliable officials and specialists can far exceed supply. The experience in Iraq in 2003, and in so many other cases, shows that when regimes or states disintegrate for whatever reason, key institutions, as well as the physical and cultural infrastructure, can all cease to function. Reconstruction in such circumstances involves not only durable conflict resolution and

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post-conflict settlement – daunting enough tasks in their own right – but also the rebuilding of state institutions and social networks. The task of ‘cleansing’ from society all elements of a tainted former regime can simply be counter-productive, even if feasible. In a comment strongly resonant of the ironies of post-conflict Iraq in 2003, International IDEA note that “the training of security officials in a post-conflict society all too often means transforming former oppressors into guarantors of human rights and security for individual citizens” (International IDEA 2002: 5). Having summarized the goals and modalities of security sector governance, focusing particularly on activities and initiatives concerning military actors, the next step is to extract key lessons and insights from the Resolving Self-determination Disputes Using Complex Power-sharing project’s eight case studies. III Case Studies A

Bosnia and Herzegovina

When conflict began in April 1992, it became heavily militarized almost immediately. External actors were also quickly brought into the conflict, as the main military actors appealed to external sponsor states. The military actors also quickly took on a very high degree of political authority. For example, Serb forces controlled some 70% of Bosnian territory within months. During the 1993–1994 war, the Croatian HDZ sought to establish Herceg-Bosna in western Herzegovina as part of Croatia. It was also the actions of one military organization in particular that brought the international community to act: the Srebrenica atrocity by the Bosnian VRS, backed by the Yugoslav army. Thereafter, however, the various models for stabilization failed to take full and proper account of the central role of the militaries. The February–March 1992 Cutileiro peace plan marginalized the militaries as agents of change by insisting on a solution based on borders and territory, and did not even address the issues of control of the police and the army. The 1993 Vance-Owen peace plan was based on the newly established lines of control, and in that regard effectively accepted the results of ethnic cleansing projects carried out by the militaries. So, rather than marginalize the militaries, the Vance-Owen plan arguably encouraged them to continue with their atrocities, as it was this behaviour that clearly set the agenda – witness the increased activity by Croat forces and the Croat/Bosniak advances in summer 1995. The active militaries, having been the de facto key agents for change in the region, then met with complex marginalization in the form of the Dayton Peace Accords (DPA) of 1995. In the first place, the DPA were not based on the defeat on any of the three parties – decision had not been reached through force of arms. But the DPA also sought to avoid settling grievances between the militaries through politics and diplomacy; the militaries seemed to be regarded as untouch

For details of the case studies refer to Part 2.

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able. Under the new constitutional arrangements for Bosnia and Herzegovina, issues relating to defence were decentralized to the level where cross-communal dialogue and negotiation was not necessary. In other words, such was the perceived strength and implacability of the local military forces, that they were left as entity, rather than federal matters. Unlike other federal arrangements, no central or joint competency in military matters was sought or established. The federal authority not only declined to establish its rights in the area of military force (often understood as the key attribute of sovereignty), it permitted, and possibly even encouraged, rivals in this field. In part, this can be explained by the financial and fiscal weaknesses at the centre. The federal government would not have been able to afford to run reorganized and integrated armed forces even if it had been given the opportunity to do so. In the resulting vacuum, both entity armed forces maintained close relations with their ‘mother states’; it was not until March 2002 that the Yugoslav army ended financial aid to the army of Republika Srpska. Reluctance to engage with local military forces was compounded when the federal authority ‘borrowed’ its military capability from outside. Under Annex I of the DPA, foreign forces (NATO’s Implementation Force (IFOR) and subsequently the Stabilization Force (SFOR)), were given the task of supervising the disengagement of military forces in Bosnia, by establishing a ceasefire along the Inter-Entity Boundary Line (IEBL), seeking the withdrawal of neighbouring and foreign forces, and ‘stabilizing’ the region through their physical presence and through close supervision of local military forces. The main focus of IFOR and SFOR activities was to secure the status quo rather than look forward and modify or improve the political landscape. These forces also had an abiding reluctance to support or participate in civilian aspects of the DPA, choosing to limit their activities to the contents of the DPA military mandate. The DPA was a weak agreement with little real authority vested at the centre. Local military forces, having been closely involved in every aspect of the crisis and conflict in the region and having become heavily politicized, were neither silenced by defeat nor discharged honourably by an armistice. Instead, they were pushed to the periphery of the new federal constitutional arrangements, and finally were substituted by foreign military forces. To compound the problem, these external forces self-consciously saw themselves not as agents of change (as local military forces had been), but of stability, and avoided the process of politics as far as possible. As a result of all this, the case study notes that joint security initiatives such as the creation of a joint army command or a joint border service “were met with fierce resistance by the dominant political forces of Croats and Serbs,” and “the parallel power structures of the three nationalist parties remained largely undisturbed” (see Ch 7: 240). It is not only that an ambitious security sector governance agenda was not pursued from the outset in Bosnia and Herzegovina, but that it was carefully and deliberately avoided. To date, the focus of the DPA has been to prevent future conflict, through intensive and expensive initiatives to stabilize the security sector. But stabilization has been seen as an end in itself, and has been pursued at the expense of establishing durable security arrangements firmly embedded locally. That said, there are some indications that

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the Ashdown administration is developing a longer-term strategy, with initiatives to centralize customs and intelligence services and to improve integration of the military. Nevertheless, for the short and medium-term, a large proportion of the Bosnian population fear a new war when the international military presence is finally withdrawn. Even if war did not break out immediately, the fragile federal political system would certainly face great difficulty without its international sponsors, and might be unable to manage considerable population movements that may take place. At that point, local military forces who not only have a large stake in the political development of the region, but who have also shown themselves especially interested in the movement of populations, might well take up arms once again, on their own terms. B

Bougainville

The Bougainville self-determination dispute has been long-running and complex, with issues of ethnic identity compounded by competition for resources (copper and gold). Protagonists in the dispute and conflict have been the government of Papua New Guinea (PNG) and its associates in Bougainville, notably the Bougainville Resistance Force (BRF). PNG consistently rejected Bougainville’s claims for independence, was especially adamant that national sovereignty required security and police forces to be controlled centrally, and could not contemplate devolving authority in these matters to Bougainville as autonomous functions. Opposed were the Bougainville Revolutionary Army (BRA) and its associated civilian administration, the Bougainville Interim Government (BIG). With its uncompromising demands for secession, the BRA began as an informal militia but steadily expanded its recruiting base to include older and more educated people, together with some serving and former army officers. In terms of manpower and military capability, the armed forces on both sides were not high level. By the mid-1990s, about 800 PNG Defence Force (PNGDF) troops and about 150 police riot squad members were deployed in Bougainville. At that time, BRA had about 2,000 members, armed with about 500 modern weapons and 2,000–3,000 vintage or homemade weapons. The BRF, numbering about 1,500, were armed by the PNGDF. At various points, there has been strong international involvement in the settlement of the conflict, including the UN, the Commonwealth Secretariat, various NGOs, the South Pacific Peace Keeping Force, and even the private Sandline security organization. On neither side, however, were armed forces particularly well-organized. Both the PNGDF and the Royal PNG Constabulary (RPNGC) had considerable autonomy, often working in their own interests and against official policy. For its part, BRA was not a well-organized and coherent force but a loose collection of many small, armed groups with local loyalties. It was BRA’s loose organization that made it unable to exploit the surprise withdrawal of all PNG security forces in March 1990 by taking control of Bougainville. On both sides, the looseness of organization and/or loyalties also meant that progress towards a negotiated settlement became difficult. Lack of clear and unequivocal direction probably

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contributed to human rights abuses committed by both sides, practices which can only have reinforced ethnic loyalties and deepened hostility. The Bougainville Peace Agreement was signed at Arawa on 30 August 2001. The agreement established two lists of powers and functions, one for the PNG national government and another for an eventual autonomous Bougainville government. The national government list included those powers and functions that, “consistent with national sovereignty,” the national government would hold “in relation to [PNG] as a whole, including Bougainville.” The first item on the national government list was defence. Elsewhere, the Arawa agreement made clear that the national government would exercise its defence responsibility in Bougainville, albeit following consultation, and that the PNGDF would be considered “a national organization which recruits throughout [PNG].” The agreement also included an elaborate, three-stage Weapons Disposal Plan, which welcomed “the way in which the [BRA] and the [BRF] have come together.” The plan went beyond weapons disposal to include DDR activities, and involved not only the combatant elements but also local chiefs and elders, and the UN observer mission as arbiter. Former combatants were instructed not to attempt to re-arm, while the national government committed itself not to redeploy defence or police units in demobilized areas. The Plan made an explicit connection between weapons disposal and reconciliation, with the parties undertaking “to cooperate in promoting reconciliation among ex-combatants and in the wider community, and restoration of civil authority in Bougainville.” The commanders of the various groups agreed to disband their organizations on completion of the Plan. The Bougainville peace process is still underway, and important aspects of the self-determination dispute are yet to be resolved. Nevertheless, in terms both of language and process, the Peace Agreement exemplifies the pursuit of an ambitious security sector governance agenda (stabilization, oversight, and development) in the context of a power-sharing arrangement. The Peace Agreement places combatant factions at the centre of the process and achieves the notable feat not only of disarming the combatant groups (mainly BRA and BRF) but also of achieving their agreement to the centralization of military power by the PNG national government. C

Gagauzia

The recent origins of the Gagauzia dispute lie in the 19 August 1990 independence declaration of the Gagauz Soviet Socialist Republic. The new entity aspired to be independent of Moldova but part of the Soviet Union. Gagauzian administrative institutions were duly created and the Moldovan Supreme Soviet responded on 26 October by declaring a state of emergency in southern Moldova, and by moving 40,000 armed volunteers into the area. Gagauzians appealed to Moscow for military assistance, and local political movements begin to set up paramilitary units. Assistance was offered by Transdniestria, itself in a bitter and violent dispute with Moldova. A very major conflict looked to be in prospect, but Soviet authorities persuaded the volunteer forces to withdraw from confrontation.

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Armed clashes did take place but they were sporadic and did not escalate, unlike in Transdniestria. Following the end of the Transdniestria conflict, negotiations began on political autonomy for Gagauzia in the autumn of 1992. On 23 December 1994, a power-sharing arrangement was agreed by the Moldovan parliament, establishing an autonomous region of Gagauzia. The Law on the Special Legal Status of Gagauzia (Gagauz Yeri) stressed the independent and unitary status of the Republic of Moldova and confirmed the precedence of the Moldovan Constitution. Within those parameters, however, Gagauzia was accorded a high level of autonomy, with the Gagauzian People’s Assembly authorized to legislate on almost all aspects of public policy, other than defence and foreign affairs. The Gagauzian/Moldovan security sector does not figure prominently in the power-sharing arrangement. Article 12, listing the competences of the Gagauzian People’s Assembly, establishes a rudimentary relationship with the parliament of the Republic of Moldova in the matter of declaring and administering a state of emergency on the territory of Gagauzia (Article 12(3)(h)). Article 17 commits the Executive Committee of Gagauzia (the region’s permanent executive authority, appointed by the People’s Assembly) to ensuring the “protection of legality and public order.” The most sophisticated security sector arrangements are found in Articles 23 and 24. Article 23 establishes that the chief of Gagauzia’s Department of National Security will be appointed (and dismissed) by the Moldovan Minister of National Security, on the recommendation of the Governor of Gagauzia and with the agreement of the Gagauzian People’s Assembly. Article 23 also provides for the Gagauzian national security chief to be an ex officio member of Moldova’s Board of the Ministry of National Security. Article 24 makes similar provision for the appointment of the chief of Gagauzia’s Department of Internal Affairs. The commander of ‘interior forces’ (‘Carabineer troops’) based in Gagauzia is, similarly, to be appointed and dismissed by the Moldovan Minister of Internal Affairs at the recommendation of the Governor of Gagauzia. The case study (Järve) acknowledges major shortcomings in the Gagauzia/ Moldova power-sharing arrangement. The relationship has been uneasy and has at times threatened to degenerate into large-scale conflict. There have, however, been some more auspicious moments, such as the political confrontation in February–March 2002, which saw threats and some violence, but no casualties. Violence is a largely latent phenomenon, but it is nevertheless curious that the governance of the Gagauzian/Moldovan security sector has received so little explicit attention. Three explanations might be offered. First, it would appear that the mismanagement of, or abuse by, the security sector was not a key component of the dispute, the resolution of which could therefore be sought by constitutional, economic, and ethno-national devices. Little attention was paid to the role of organized military forces, simply because they had not been significant actors in the dispute, which was more a complex constitutional matter than a struggle for territory or resources. Second, at key moments in the dispute, the external involvement of the Council of Europe, the CSCE/OSCE, the Soviets/Russians, and others has been crucial. External involvement has not, however, been military,

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with the exception of Soviet Interior Ministry troops in 1990. Most participation in the conflict, whether internal or external actors, has been civil rather than military, and this might have contributed to a process in which the security sector was neither part of the problem, nor part of the solution. Finally, the existence of the parallel conflict in Transdniestria must be borne in mind. That conflict was a serious shock to the fledgling Moldovan government, and seems to have persuaded Moldova to seek peaceful resolution of the Gagauzia dispute if possible. Gagauzians were certainly inspired by the Trandniestrian secession, but they were also influenced by Moldova’s response and consequently positioned themselves carefully. It was clear that the weak Moldovan government was severely stretched by the Transdniestrian conflict. The Gagauzians benefited by, effectively, playing a military hand by proxy, and by doing so ensured that it was largely unnecessary for the power-sharing agreement to address security sector governance. D

Kosovo

The Kosovo case is complex and far-reaching in terms of its origins, the number and variety of actors, the intensity and scope of the violence, the close relationship between political and military actors, and the consideration given to the principles of security sector governance in the settlement of the dispute. The case study describes the Kosovo dispute as a shift from a struggle for identity and power within an autonomous province of a wider federal structure to a “genuine self-determination conflict aiming towards secession” (see Ch 8: 244). During 1998 and 1999, parties to the conflict included paramilitary/terrorist groups (principally the Kosovo Liberation Army (KLA)), Serb volunteers, police and army units from the Federal Republic of Yugoslavia, and the armed forces of NATO and other intervening countries. As elsewhere in the Balkans, the Kosovo crisis was also distinguished by the massive, deliberate, and brutal involvement of the civilian population in the conflict. When the decisive round of hostilities broke out in 1999, Kosovo was subjected to rapid and large-scale ethnic cleansing, with over half of its 1.7 million ethnic Albanians being moved out of the territory within weeks, and with many thousands of others becoming internally displaced. By June 1999, following intervention by NATO, ethnic cleansing had been stopped and Kosovo was temporarily under the control of the KLA. Reprisal attacks then began against Serbs and Roma, in spite of the presence of NATO and, eventually, UN civil administrators. The outcome is a complex but uneasy peace, where power has not been so much shared as held in trust by the UN: “Kosovo has become, in fact, a protectorate, which is not dissimilar from the condition of Class A mandates of the League of Nations, which were sovereign but not independent” (Groom and Taylor 2000: 303). The Kosovo conflict has been marked by a very high degree of external interest and involvement, ranging from neighbouring states (and some more distant, particularly the United States) to major civil and military international organizations. The CSCE/OSCE has had a long-standing interest in the Kosovo dispute, which it saw not only as challenging the organization’s advocacy of the human

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dimension of security and stability, but also as a potential source of instability and even open conflict on a regional scale. The OSCE assumed an unusually active role in the form of the 2,000-strong Kosovo Verification Mission (KVM), established in October 1998 to monitor compliance with UN Security Council Resolution (UNSCR) 1199. NATO also became a prominent actor in the dispute during 1998. Activity increased under the auspices of NATO’s Partnership for Peace, involving Albania and Macedonia. Both countries consented to NATO air exercises in their airspace in June, and to NATO ground force exercises in August and September. By the end of the year, NATO had positioned itself as the guarantor of the mediation and conflict resolution efforts of the UN Security Council and the OSCE. NATO’s 13 October ultimatum to Belgrade, in the form of an activation order for limited air strikes and a phased air campaign, was unprecedented in the alliance’s history. The deployment of the KVM also necessitated the organization of a 1,500-strong ‘extraction force’ deployed to Macedonia. The United States, which had been making military threats against Serbia over Kosovo since 1992, viewed NATO increasingly as a useful device for the politico-military coercion of Belgrade. Serb military and police activity over the Christmas period, followed by the Racak massacre in January 1999, brought the October 1998 Holbrooke Agreement to the point of collapse. The Agreement, between Serbian President Slobodan Milosevic and US Special Envoy Richard Holbrooke acting on behalf of the Contact Group, was a complex arrangement by which Milosevic would cease military operations in Kosovo and withdraw those forces that had moved into Kosovo during the preceding seven months. The Kosovo Verification Mission – a team of unarmed, civilian monitors from the OSCE – would be deployed to monitor Serb compliance. The Holbrooke Agreement offered short-term stability and even, in the longer term, the means by which the Serb government could accept settlement of the Kosovo issue. But the Agreement was overtaken by events; the first six months of 1999 saw armed intervention by NATO and other forces, as well as the development of arrangements for the administration of Kosovo. As far as the security sector and its governance are concerned, negotiations and agreements made during the first half of 1999 provide an example of an attempt to agree to an ambitious and sophisticated security sector governance agenda (in the form of the Rambouillet Accords), revisited in a slightly less sophisticated form in the Belgrade/NATO Military Technical Agreement and UNSCR 1244 of June 1999. Chapter 7 of the Rambouillet Accords is the most detailed part of the provisional agreement. The Accords allowed for a wide range of security sector stabilization and oversight measures. A ceasefire was to come into force immediately upon signature of the Accords, and any violations of it would, importantly, be reported to international observers and would not be admitted as justifying a retaliatory use of force. An amnesty would be offered to former combatants, other than those accused of violating international humanitarian law. Regular police and security forces would be withdrawn and redeployed according to a detailed programme. Air defence systems in Kosovo would be dismantled, and heavy weapons would be placed under international supervision. All forces

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would be expected to commit themselves to demilitarization programs and to the renunciation of violence. Paramilitary and irregular forces in Kosovo, on the other hand, were simply to be excluded as personae non grata, incompatible with the settlement process and the resolution of the conflict. This would have become something of a sticking point for the KLA, which considered itself neither a paramilitary nor a terrorist force. Under the Rambouillet Accords, the parties would have agreed to the deployment by NATO of a Kosovo Force (KFOR) of about 28,000 troops, with Russian and other contingents, under the political control of NATO’s North Atlantic Council. A UN Security Council Chapter VII enforcement mandate would be sought to legitimize the deployment. KFOR would be authorized to use military force as necessary to ensure compliance with the Accords and, unlike the Dayton Peace Accords in Bosnia and Herzegovina, would be available to support civilian implementation by the OSCE and others. Although the KFOR military commander would have final authority in the interpretation of military aspects of the Accords, that authority would, if only to a limited extent, be supervised by a Joint Implementation Commission (JIC). The purpose of the JIC would have been to consider complaints and grievances and would comprise Yugoslav military commanders, Yugoslav and Kosovo Serb officials, representatives of Kosovo, and representatives of the military and civilian implementation missions. However, Chapter 7 of the Rambouillet Accords also had an annex containing a proposed status of forces agreement for deployed NATO forces. Belgrade claimed that this document represented an abuse of Yugoslav sovereignty by NATO and, on that basis, the Rambouillet Accords and the follow-on Paris negotiations were rejected. The situation in Kosovo worsened rapidly in the early months of 1999, even as the Rambouillet talks were taking place. The OSCE abandoned its monitoring mission on 20 March and air strikes began against Yugoslavia within days. The intense air campaign (Operation Allied Force) lasted until early June, when Milosevic accepted a G-8 plan for the withdrawal of all Serb forces from Kosovo. A Military Technical Agreement (MTA) was signed on 9 June between NATO’s operational commander in the area and Serb generals providing for the withdrawal of Serb forces and the entry into Kosovo of NATO-led ground forces (to be known as KFOR, as proposed at Rambouillet). The following day, UNSCR 1244 was adopted for the establishment of the administration of Kosovo. The MTA established a wide range of security sector stabilization measures. KFOR was authorized to use military force as necessary to ensure compliance with the MTA and “to contribute to a secure environment for the international civil implementation presence, and other international organizations, agencies and non-governmental organizations” (Art I: 4.b). Air safety and ground safety zones beyond Kosovo’s borders were agreed, from which Yugoslav forces would be excluded as well as from Kosovo itself. Under the threat of further NATO air strikes, Yugoslav forces – broadly defined to include regular forces, paramilitaries, armed civilians, border police, intelligence services, riot police, etc. – were committed to an immediate ceasefire and to a detailed, eleven-day withdrawal

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plan, removing mines and other obstacles as they left. KFOR would have assumed control of Kosovo’s borders and airspace. The MTA also allowed for a JIC, and would have made the KFOR commander the final authority for interpretation of the MTA “and the security aspects of the peace settlement it supports” (Art V). UNSCR 1244 of 10 June 1999 began by attempting a rather more balanced approach to the Kosovo conflict and its perpetrators, by condemning “all acts of violence against the Kosovo population as well as all terrorist acts by any party.” The resolution called for Yugoslavia to end violence and repression in Kosovo and to withdraw its military, paramilitary, and police forces (Art 3). International civil and security ‘presences’ were to be deployed to Kosovo under the auspices of the UN. The international civil presence was to be headed by a Special Representative of the Secretary-General, and was instructed to “co-ordinate closely” with the “security presence” (i.e., KFOR) (Art 6). Article 9 of the resolution lists the tasks of the security presence, including: maintain the ceasefire and ensure the withdrawal of forces from Kosovo; establish a secure environment within which the ‘civil presence’ can operate and to enable the return of refugees and displaced people; to ensure public safety and order “until the international civil presence can take responsibility for this task”; and to support and co-ordinate closely with the work of the international civil presence. Articles 9 and 15 also explicitly call for the demilitarization of the KLA and “other armed Kosovo Albanian groups.” The Kosovo dispute required a complex settlement that continues to be fragile and to require constant maintenance. Whatever the strengths and weaknesses of the settlement, from the narrow perspective of security sector governance, and the even narrower concern with the role of the military in such initiatives, the Kosovo settlement is noteworthy in a number of ways. First, and perhaps of most significance in the longer term, the KLA had been a very significant combatant organization and had temporarily administered much of Kosovo before the full deployment of KFOR. But the KLA subsequently found itself treated as part of the Kosovo ‘problem’, rather than an element of the solution – the UN in particular had long regarded the KLA as a terrorist organization and little more. This is not to offer a defence of the KLA, simply to observe that organizations such as this do not often go into oblivion voluntarily. The settlement provided for the replacement of the KLA by a new, lightly armed, multiethnic civil policing organization, the Kosovo Protection Corps (KPC). This arrangement, however, convinced few, least of all former KLA members, who continue to see the KPC as the kernel of an army of Kosovo, which will be expanded when KFOR departs. The Serb population of Kosovo take a similar view of the KPC, and for that reason are reported to have made arrangements to revive civil volunteer guard forces in the event of a post-KFOR crisis. Small arms and light weapons are in abundant supply in Kosovo; a resource that can easily be exploited by both sides when necessary. Second, the Kosovo settlement is built largely on a denial of that which the population of Kosovo most desires: independence from the Federal Republic of Yugoslavia (FRY). Economic and geostrategic arguments can be advanced against the separation of Kosovo from FRY, but it remains the case that “substantial autonomy within the FRY” (UNSCR 1244 Art 10) was precisely not what many in

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Kosovo wanted, and was not something they would, in the words of the UNSCR, “enjoy.” Third, the Kosovo settlement sees the United Nations acting as a form of trust or mandate power – critics would say ‘colonial’ – which self-evidently denies the inhabitants of Kosovo control over their own institutions (at least for the present) and does not require them to face the difficult challenges of finding the motivation and the means to resolve their own disputes. Finally, the heavilyinvolved international community has indulged in its own form of power-sharing, with the ‘security’ and the ‘civil’ presences cooperating with each other but not bound closely in an overarching constitutional arrangement of some sort. What this amounts to is the curious spectacle of western powers, with their very developed models of civil-military relations, acting in Kosovo as if the civil and military could and should be separated ideologically and functionally. With the notable exception of the reform of the police service (see Ch 18), therefore, attempts to indigenize the governance of Kosovo’s security sector have been largely unproductive. And where Kosovo’s various military bodies and groups are concerned, the reform and governance agenda has in effect been avoided altogether. E

Macedonia

The long-acclaimed success of Macedonian stability and conflict prevention was marred by the outbreak of fighting between Macedonian security forces and the ethnic Albanian National Liberation Army (NLA) in 2001. Most ethnic Albanians in Macedonia wanted the state of Macedonia to remain united and were not anxious to press a claim for self-determination, yet were sympathetic to the NLA for championing the ethnic Albanian cause within Macedonia. The Macedonian government, however, viewed things very differently. For the government, the dispute was a territorial struggle, with the NLA fighting for the absorption of ethnic Albanian regions of Macedonia into ‘Greater Albania’. Accordingly, the Macedonian government responded militarily to the NLA as a terrorist or insurgent organization, not as an armed body representing an aggrieved ethnic community. The NLA agreed a ceasefire but the Macedonian government then refused to discuss the rights of ethnic Albanians and began a full-scale military offensive in late March 2001. The small and ill-equipped armed forces of Macedonia faced a difficult struggle against the NLA, and certain practices only served to alienate ethnic Albanian populations still further. As the conflict continued into the summer of 2001, both communities became progressively more radicalized. International organizations were closely involved in the crisis, not least because the Macedonian government blamed authorities in Kosovo for lax border controls that allowed NLA fighters to cross into Macedonia. The international perspective was that the Macedonian government had reacted inappropriately and had adopted a confrontational position from which it could not hope to resolve the ethnic problems that lay at the heart of the dispute. After several days 

For the argument that post-conflict transitional administrations should be unified (civil-military), see Einsiedel 2002: 7.

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of extremely violent fighting, a power-sharing Framework Agreement was signed in Skopje on 13 August 2001 by the main ethnic Macedonian and ethnic Albanian parties, with the encouragement of the United States, EU, NATO, and the OSCE. The Framework Agreement offers very little with which to inform analysis of the role of security sector governance in a complex power-sharing arrangement. Although the NLA had been kept informed by NATO it had not been directly involved in the negotiation of the Framework Agreement. As a result, the Framework Agreement allows for no formal role for the NLA, insisting starkly that “Macedonia’s sovereignty and territorial integrity, and the unitary character of the State are inviolable and must be preserved. There are no territorial solutions to ethnic issues” (para 1.2). The contribution expected of the NLA to the agreement and to the post-conflict reconstruction process is, quite simply, to eliminate itself as an actor by agreeing to “complete cessation of hostilities,” “complete voluntary disarmament,” and “complete voluntary disbandment” (para 2.1). The Framework Agreement makes what might be a vague acknowledgement of DDR when it refers to “rehabilitation and reconstruction in areas affected by the fighting” (para 8.3) but otherwise the only concession to security sector governance lies in the commitment to increase the representation of minority communities in the military and other public services (para 5.1). Minority representation in the armed forces was a serious issue – the development of parallel ethnic cultures in Macedonia meant that very few ethnic Albanians had been recruited into the Macedonian military and police forces – but its inclusion in the Framework Agreement is the barest evidence of a security sector governance agenda at work. On 21 August 2001, the NLA indicated their consent to the agreement and agreed to surrender their weapons to NATO. In Operation Essential Harvest (27 August–26 September) NATO collected and destroyed some 3,875 NLA weapons. NLA involvement went no further. Former NLA members were not formally integrated into the Macedonian army, for example. Some left for Kosovo, others continued a sporadic struggle. In effect, the NLA had brought an ethnic grievance to the surface but was not closely involved in the resolution of that grievance, and so announced its own disbandment on 27 September 2001. The case study (Daftary and Friedman) concludes that the power-sharing arrangement in Macedonia is neither a success nor a failure, but incomplete. As to the military dimension of security sector governance in this work in progress, beyond practical stabilization measures and weapons removal, the Framework Agreement provides little evidence that the principles of security sector governance had been given much thought. Unusually, one of the protagonists in the dispute, the NLA, was substantially excluded from the negotiation and implementation of the Framework Agreement. The NLA leadership accepted this fate, but many former fighters did not and formed the Albanian National Army, pledging to reject the Framework Agreement and to renew the struggle for a ‘Greater Albania’. This sense of an unresolved conflict is reinforced by the knowledge that ethnic Macedonian hardliners and paramilitaries are also ‘keeping their powder

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dry.’ In other words, in Macedonia there is a fight yet to be finished, according to some. The Macedonian settlement also featured intense international involvement, in both the negotiation and the implementation of the Framework Agreement. Whatever the motives and merits of this involvement, in some respects it exacerbated rather than resolved the crisis. Many ethnic Macedonians were and are convinced that the international community instinctively favours the ethnic Albanians and accuse NATO of seeking the creation of an Albanian protectorate in Macedonia. For these critics, NATO’s weapon collection programme was insincere, gathering only a tiny proportion of an NLA weapon stockpile that could contain as many as 60,000 weapons. As in other cases, however, the main problem with relying on external political influence and military power in the Macedonian settlement is that when international interest and involvement come to an end, unresolved local grievances may re-emerge with renewed vigour. F

Mindanao

Conflict in and over Mindanao is centuries-old and exceptionally complex, with confrontation occurring between Muslims and Christians, Philippine government troops and Muslims, private armies and either Christians or Muslims, and private armies and government troops. The peace agreement between the Philippine government and the Moro National Liberation Front (MNLF) was signed in September 1996. The first step of the agreement was the establishment of a Special Zone of Peace and Development (SZOPAD). The agreement also contained extensive DDR arrangements. Under the first phase of the peace agreement, some 1,750 MNLF members would be integrated with the Philippine National Police (PNP) and a further 5,750 with the Armed Forces of the Philippines (AFP). Other MNLF members would be absorbed into ‘socio-economic, cultural, and educational’ programmes, and would be considered a priority when recruiting for SZOPAD development projects. In addition, a Special Regional Security Force would be established as a regional command of the PNP in order to employ former MNLF fighters. The broader relationship between the Philippines national government and that of the new Autonomous Region of Muslim Mindanao (ARMM) is also set out in the agreement. National defence and security was retained as a national function and would not be devolved to the ARMM; the defence and security of the ARMM would continue to be the responsibility of the central government. With this in mind, an AFP regional command has been established in the ARMM, while remaining under the control of the AFP and central government. The ARMM regional governor – a member ex officio of the Philippines National Security Council – may request deployment of the AFP regional command in the event of invasion, rebellion, or general lawlessness. Tellingly, however, central government is not empowered to decide unilaterally to send the AFP into the ARMM. The successful implementation of the peace agreement was undermined by the reluctance and/or inability of the Philippine government to deal effectively with organizations other than the MNLF, notably the Moro Islamic Liberation

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Front (MILF) (which had earlier broken away from the MNLF) and the extremist Abu Sayyaf terrorist organization. The MILF had withdrawn from negotiations at an early stage when they perceived that the central government was principally interested in negotiating with the MNLF only, and the MILF had therefore not endorsed the peace agreement. After the peace agreement, the MILF continued to consolidate its military strength and remained a concern for the AFP, which culminated in war between the AFP and MILF that broke out once again in Mindanao in early 2000. A peace agreement with MILF is yet to be negotiated. Economic and social development were regarded as the great hope for stability in Mindanao. After the 1996 agreement, it was discovered that over 60% of MNLF personnel were unemployed, with their communities in a wretched economic condition. A massive development assistance programme was geared to assisting former MNLF fighters, their families, and communities, in the process ensuring that social and economic suffering would not trigger further conflict. However, by focusing closely on the needs of former MNLF fighters, other factions with a legitimate claim to assistance felt marginalized, with the result that the aid programme threatened to prevent, rather than encourage reconciliation. Overall, the benefits of the development programmes have yet to be seen by the majority of Mindanao’s population, and the much-needed reconciliation between the opposing factions has yet to take hold. Disaffection is widespread, to the extent that the Mindanao crisis cannot yet be said to be resolved. As the case study notes, “Underlying conditions which give rise to conflict still persist and are unlikely to diminish significantly in the short-term:” (Ch 6: 191). As far as security sector governance is concerned, the Mindanao case demonstrates the need for a close relationship between stability and economic and social development. But the Mindanao case also proves the dangers of excluding a key actor (the MILF) from the process, and of moving too quickly to the development phase without first having stabilized the situation by involving all armed actors, and without having established effective and consensual oversight programmes. G

Northern Ireland

The recent conflict in and over Northern Ireland stems from the outbreak of intercommunity violence in the late 1960s – known euphemistically as the ‘Troubles’ – and the subsequent large-scale involvement of Britain’s armed forces in policing and counter-insurgency operations. The epicentre of the conflict was Northern Ireland itself, although violent acts were also carried out on the UK mainland and against British military bases in Europe. Occasionally, loyalist paramilitary forces made incursions into Ireland. The British government always perceived and portrayed the conflict as an internal security matter, and was resistant to external involvement (other than from the government of Ireland). From 1972 until 1985, the British government presented itself as a neutral arbiter between rival groups of Northern Irish Catholics and Protestants, justifying the British Army’s involvement as an armed policing accompaniment to a neutral intervention. Unlike many other self-determi-

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nation disputes around the world, Britain’s armed forces were generally closely restrained throughout the course of the conflict. There were, nevertheless, some abuses of authority and military strength. Furthermore, certain security policies, such as internment without trial and Britain’s perceived support for loyalist interests and armed factions, were counter-productive and fuelled support for the republican paramilitary groups such as the Irish Republican Army (IRA). For this, if for no other reason, Britain cannot be said to have been objectively neutral in the conflict. Being closely involved in the conflict, with decisive negotiating powers in the resolution of the conflict, and with a practical role in the reconstruction phase (in terms of demilitarization), Britain’s position at the centre of every aspect of the Northern Ireland conflict is unique, shared by neither the government of Ireland, the political parties of Northern Ireland, nor the paramilitary organizations (republican and loyalist). On 10 April 1998, settlement of the Northern Ireland conflict was reached in the form of an agreement known respectively as the ‘Belfast’, the ‘Good Friday’, or the ‘British-Irish’ Agreement. Five years later, full implementation of the Agreement is still awaited. Nevertheless, important indications of the role of security sector governance in the Agreement can be discerned. Paramilitary organizations were represented in the negotiations by political parties: the IRA by Sinn Féin, and the Ulster Defence Association and Ulster Volunteer Force by the Progressive Unionist Party and Ulster Democratic Party, respectively. This was a significant act of security sector stabilization through bargaining; the case study notes that the governments of Ireland and Britain effectively “recognized the paramilitaries that have organized ceasefires as political agencies” (Ch 4: 100). Just as important, those paramilitary organizations abiding by the Agreement were given a special status and were not required to formally surrender themselves to what would have been perceived as their former opponents. The Agreement was, in essence, a political framework that sought to provide opportunities to seek peaceful resolution of disputes and avoid armed conflict. At the strategic level, the Agreement proposed that the internal security functions of the state – policing and the courts – would be retained in Westminster by the British government, subject to review. The Agreement made special provision for the reconstruction of the police force. As the case study observes: “Democratic consociation cannot exist where those of military age in one community are almost the sole recruitment pool for policing all of those in another community” (Ch 4: 92). As far as the military side of the security sector was concerned, no military or paramilitary organizations were formally involved in negotiating the Agreement. In several respects, however, the Agreement was explicitly military; in terms of demilitarization activities (i.e., removal of watchtowers and border posts, reduction of troop numbers), release of paramilitary and military prisoners, and weapons decommissioning. Weapons decommissioning was at the heart of the Agreement. Of all the security sector reconstruction and governance initiatives contained in the Agreement, only weapons decommissioning was a necessary precondition for the construction of a new political culture and institutions in Northern Ireland. In the latter

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years of the conflict, the issue of decommissioning saw a number of different approaches being advocated. In the mid-1990s, the British government insisted on prior decommissioning before paramilitary organizations or their representatives could join the negotiations. The Mitchell Commission, however, argued for decommissioning to take place in parallel with negotiations. From May 1997, the approach of the new Labour government in Britain was to negotiate a renewed ceasefire by the IRA in exchange for placing the decommissioning issue into a separate negotiating forum. The Labour government’s approach was met with the vehement opposition of many unionists, for whom decommissioning was a vital feature of any agreement and its implementation and who regarded the British government’s approach as the appeasement of terrorists. The SSG components of the British-Irish Agreement are not especially prominent (in the military sphere at least; the police sphere is much more developed and comprehensively treated), but at the same time they reveal an extraordinarily sophisticated approach to the role of the security sector in the settlement of disputes. In military terms, the Agreement reduces largely to a discussion of DDR matters, and further still to a protracted debate over just one initiative among many actual and possible initiatives – weapons decommissioning. The governance of the respective state armed forces (British and Irish) is not addressed, although specific cases of abuse and misuse of authority are to be pursued. The British Army, having been closely involved in every aspect of the conflict since its inception in the late 1960s, is largely confined to a set of demilitarization activities. In other words, the British Army’s principal contribution to the settlement is to withdraw. The Agreement calls for a variety of confidence-building measures, some from governments and others from paramilitary organizations. The principal contribution of the paramilitary bodies is agreement to, and maintenance of a ceasefire; the precondition for all security sector stabilization, oversight, and development initiatives. Generally, ceasefires have been maintained. Where ceasefires have been broken and atrocities carried out, these have largely been the responsibility of breakaway groups. The key point in this, however, is that those paramilitary organizations that have maintained a ceasefire as a confidence-building contribution to the negotiation and eventual implementation of the Agreement have done so without having been directly involved in the negotiations. Paramilitary organizations could only contribute indirectly to the negotiations through a political party, and only then if they agreed to and maintained a ceasefire. In other words, the Agreement is a political enabling framework rather than an explicit attempt to reconstruct the security sector governance of Northern Ireland as part of a complex, new, constitutional arrangement. Like all such settlements, the British-Irish Agreement requires a degree of security sector stabilization before it can proceed. The notable achievement of the Agreement, however, is that rather than put the more normative and contentious aspects of security sector governance to one side (oversight and development initiatives), it imposes normative standards of SSG on the key participants as a precondition for participation in the negotiations.

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H

South Ossetia

The dispute between Georgia and the people of the South Ossetia region begin in November 1989 with armed clashes between South Ossetian militia (aided by Russian volunteers) and local Georgians. Sporadic violence lasted until December 1990, when a somewhat larger-scale military confrontation began. The conflict saw about 1,000 deaths and the internal displacement of about 5,000 Ossetians and Georgians, and lasted until a ceasefire in July 1992. The conflict was a limited affair throughout, even though local populations took part in street clashes and mercenary forces from Russia and North Caucasus became involved. On neither side were the armed forces particularly well organized, with few if any attempts to achieve a decisive build-up of troops and equipment. Ossetian and Georgian partisan movements either failed or declined to organize themselves and establish a protected enclave from which to continue the struggle after the ceasefire. The power-sharing arrangement between the Ossetians and Georgians was always more of a process than a single, formally negotiated document. In all this informality there were, nevertheless, some indications of a systematic effort to address security sector stabilization and oversight issues. The April 1996 Memorandum on Measures to Provide Security and Strengthen Mutual Trust Between Sides in the Georgian-Ossetian Conflict begins by congratulating the parties on the achievement of basic security sector stabilization, “stating with pleasure that … military actions were terminated in the zone of conflict.” In Article 1, the parties commit themselves to “refuse to use force or the threat of force, to exert political, economic or any other form of pressure on each other.” Article 4 offers an amnesty to combatants, other than those suspected of military crimes or crimes against civilians. Article 6 refers to the gradual demilitarization of the zone of conflict, and the deployment of peacekeeping forces into the area. Peacekeeping forces and activities will themselves be subject to an eventual “phased reduction” and will generally be managed by a Joint Control Commission (JCC) (Art 7). The relative ease with which a power-sharing process was established has several explanations. First, there had been a long record of peaceful coexistence between Ossetians and Georgians. The lack of “deep-seated rancour” (Ch 11: 351) between the two sides, contributed to the low scale and intensity of the conflict, reduced the chances of reprisal and escalation, and meant that recovery and reconstruction projects could begin more quickly and with more effect than in other, deeper conflicts. The absence of intense antagonism also made possible the replacement, after the conflict, of both sides’ radical leaders with more moderate figures. The Soviet Union and then the Russian Federation had been involved all along, even to the extent in the early months of the conflict of using airpower against Georgian villages. As conflict turned into settlement negotiations, Russia’s main contribution came to be that of a regional “custodian of stability .” (Ch 11: 359). Russian troops deployed in 1990 later became the core of the Joint Peace-keeping Force (JPKF). In 1992, Georgian and Ossetian elements were incorporated into the JPKF. But the Russian contingent continued to dominate the JPKF in the

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absence of sufficient volunteers and military equipment from Georgia and South Ossetia. Russian military preponderance in the JPKF managed to create an environment of stability within which a settlement could be negotiated, essentially by making it strategically and diplomatically possible for the two major actors in the dispute to continue to have a minor role in military terms. Russian involvement was also central to the establishment of the Joint Control Commission (JCC) in June 1992, involving Georgia, South Ossetia, Russia, and the CSCE/OSCE, and comprising three working groups in military, economic, and repatriation affairs. The final explanation for the relative ease of the settlement process was that western governments were barely interested in the dispute from the beginning, as it was not considered to be on the same scale as the crisis in the Balkans, and which, in any case, took place in Russia’s ‘near abroad’. International civil organizations proved vital, however, particularly the CSCE/OSCE, which monitored the JPKF and provided support to the JCC and its three secretariats. Gradually, more organizations became involved, including the EU, UNHCR, and UNDP, introducing programmes such as weapons amnesties in exchange for community development projects. The South Ossetian settlement is unusual, particularly as far as the security sector is concerned. A power-sharing process or arrangement was agreed informally in order to settle a crisis that had seen violence but that had not escalated into full-scale war. Certain security sector issues were addressed in the settlement process, but the process was not explicitly driven by the need to improve the governance of the security sector. The conflict between the two main parties had never been as irreversible as in many other crises, and the military preponderance of the Russians further demilitarized the negotiation process. External actors became involved but those that did were characteristically non-military, and as such did not detract from the civil negotiation process. South Ossetia demonstrates that the right mix of internal and external forces can produce an agreed, civil settlement to a dispute (even where violence is involved) without a formal agreement. But the South Ossetia case study also carries a warning; informal agreement on the regulation of security, military, and economic issues might be effective, but it is also unconstitutional and legally challengeable without democratic endorsement. In the end, there can be no substitute for a complex and formal settlement. IV Conclusion Kriesberg defines power-sharing as “a governance system that provides for proportional representation of diverse groups in policy making and administrative institutions, particularly in the police and military services” (Kriesberg 2003: 120). The principal conclusion of this chapter, however, is that this may be a particularly difficult prescription to fill. There exists a fundamental tension between complex power-sharing arrangements, which seek to dilute centralized and exclusive control over aspects of governance, and security sector governance initiatives, especially after violent conflict, which seek to reduce the proliferation of

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control over security structures to diverse actors. In stable, conflict-free countries generally, and especially in post-conflict societies that aspire to such stability, the control of armed forces simply cannot be treated in the same way as, say, control over transport infrastructure, education, or hospitals. It follows that in post-conflict situations, and depending on local and historical circumstances, certain elements of security sector governance must be incorporated into a power-sharing arrangement if the centralization of organization and control of the armed forces is to be achieved. Failure to incorporate normative security sector governance into the power-sharing apparatus will ensure that those inclined to undermine or spoil the power-sharing arrangement will have the means and thereby the incentive to do so. Put another way, without the achievement of credible and durable security sector governance, complex power-sharing can appear most vulnerable to those with the greatest capacity to wreck. The eight cases reviewed here – several of which remain ‘works in progress’ – all offer very different experiences and lessons, and taken together illustrate the difficulty of incorporating complex power-sharing and security sector governance effectively. As far as the military dimension of security sector governance is concerned, the case studies show enormous variation in the scale of the conflict, the handling of military actors and issues, the level of external involvement, the military component of any settlement agreement, and the quality and value of DDR initiatives. Each case study offers a different insight into the role of security sector governance in complex power-sharing arrangements. The Mindanao study shows that SSG – however elaborate – cannot achieve its potential without parallel economic and social development. In the Gagauzia and Macedonia cases, SSG issues were the least relevant in the settlement. In South Ossetia, agreement was the easiest to be reached, but was also the least formal (and perhaps, therefore, least durable) settlement. Considering the military dimension of SSG, Kosovo was the most ambitious project, but a disappointment in terms of the failure to indigenize SSG. Bosnia and Herzegovina emerge as the least successful and most volatile experiment in integrating complex power-sharing and security sector governance; the widespread fear that armed conflict will break out again following the departure of the international presence indicates a basic lack of confidence and durability. Northern Ireland was perhaps the cleverest process among those reviewed, in that normative standards of security sector governance were imposed on key participants as preconditions for participation in negotiations. Bougainville was the most successful overall; combatant factions were not only disarmed and fully involved in negotiations, they also agreed to the centralization of military power by the national government of Papua New Guinea. The relationship between complex power-sharing and security sector governance is intricate and often self-contradictory, but no less necessary. The task of complex power-sharing is to build common structures without seeking to homogenize; differences in experience, ethnicity, culture, and civil society are all to be acknowledged and put to use in the effort of state-building. To ignore the security sector in that effort would be to overlook not only what is often the clearest expression of difference but also potentially the most destructive. For

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its part, the central insight of security sector governance is that military, police, paramilitary, and other armed forces and services must be, not the target of postconflict reforms in civil society and governance, but an intimate and inescapable component and even agent of that reform. These studies in complex power-sharing support the contention that security sector governance should be approached comprehensively, involving all armed services and forces (Dahrendorf 2003: 13), and that security sector governance is a collection of activities (stabilization, oversight, and development), not all of which will be appropriate in all circumstances at all times. Complex power sharing can benefit from well-conceived security sector governance initiatives in three ways. First, comprehensive security sector governance can prevent break-out from one element of the security sector that has been incorporated in power-sharing arrangements (for example, the army) to another that has not, or which is at a less advanced point in post-conflict reform (for example, a paramilitary gendarmerie). Second, a comprehensive approach to the security sector makes a long-term differentiation between different components of the security sector more possible: “armies exercise power, but the police must exercise authority.” (Costa and Medeiros 2002: 28). An undifferentiated security sector, in which military, police, and gendarmerie forces are all publicly perceived to be, and are in practical terms, interchangeable, is one in which the very different tasks of establishing civilian control over the military, on the one hand, and the police, on the other, can only be made more difficult. Finally, insisting upon a working relationship between complex power-sharing and security sector governance also offers an important device by which potentially destructive armed forces (particularly the military) can be kept engaged in the process of post-conflict stabilization and reconstruction. As reconstruction begins a stark choice presents itself; the military (who were, after all, a large part of the problem) can be either excluded or involved. Simple exclusion, however, can often lead back towards the vulnerable status quo ante or, at best, merely short-term stability, while exhausted military forces rest and recuperate. Inclusion of the military can be either passive (in the sense that the military holds the ring, providing a modicum of stability while governance and power-sharing initiatives are devised and initiated), or active and normative, whereby military bodies ‘buy in’ to the settlement process and reinforce it. Active involvement of the military will not easily be achieved. But, as the Northern Ireland and Bougainville experiences demonstrate, it is not impossible.

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Chapter 20 Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements Angela Hegarty

I

Introduction

Central to any political transformation are the values, institutions, and practices of justice. They provide the legal means of guaranteeing the rights and equality promised in power-sharing agreements and are, in an ideal form, the independent bulwarks against repression and abuse of power that drive so many conflicts. But, in conflicts throughout the world, the institutions of justice have failed this important test, and thus if the transition out of conflict into a power-sharing democracy is to be successfully made, those institutions must themselves be transformed. They must move away from rule by majority towards the democratic rule of law. II

Definitions and Themes

A

Defining ‘Administration of Justice’

The term ‘administration of justice’ covers a multitude of functions and institutions, so arriving at a definition of the term is in itself challenging. For example, the teaching of the ‘administration of justice’ usually involves a discussion of the legal system, its purpose, and its institutions. Thus one includes a description of the courts, the judiciary, and the laws that create them. But legal systems vary depending upon tradition, culture, and legal models, so the best place to start looking for a definition is the relevant constitution. Most constitutions create institutions to administer justice or lay down parameters for their operation, and most modern constitutions refer in some fashion to fundamental rights. Those that do not are still bound – in theory anyway – by international norms and by commonly held ideas about justice. In the UK, for example, where the constitution is ‘unwritten’ and un-entrenched, the incorporation of the European Convention on Human Rights into domestic law has led to formidable change in the judicial ethos and in the standards and practice of the administration of justice (Starmer 2003: 23). Most systems of justice often tend to incorporate notions of Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 599-626

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democracy; for example, the practice of due process, which owe as much to several centuries of political norm building as to any legal stricture. In some aspects, therefore, the political culture dictates the legal one. International practice and standards may also provide insights into what may constitute the ‘administration of justice’. For example, the UN General Assembly has adopted a number of resolutions on human rights in the administration of justice (UN 7 December 1987; 11 December 2001) and has also set up, under the Sub-Commission on the Promotion and Protection of Human Rights, a sessional working group on the administration of justice. This group looks at issues such as the use of the death penalty; prisons standards; summary, arbitrary, and extra judicial executions (UN 2001); improvement and efficiency of national judicial institutions for the protection of human rights; transitional justice and mechanisms of truth and reconciliation; rules of evidence with regard to rape and sexual assault; and current trends in international criminal justice (UN 2002). Thus, any discussion of the administration of justice ought to include a consideration of the legal system and its components – such as the courts, the judiciary, and the criminal justice system – but should also encompass an exploration of the laws and values that create and inform that system. For the purposes of this chapter, the consideration of the ‘administration of justice’ will be primarily focused upon the constitutions or constitutional frameworks laid down in the case studies and at the institutions and reforms created as a consequence. In this chapter, a survey is made of the various indications of change in the administration of justice, such as the creation of a new constitution and a constitutional court and the institution of any other new courts or the restructuring of the courts system. Other indicators include changes to courts, the appointment of new judges, the creation of a judicial commission to consider those appointments, as well as other new legal institutions. B

Themes

The themes that emerge from this diverse group of case studies are those primarily associated with the role of justice in transition and the importance of the ‘bedding down’ of universal legal values, which are vital in the delivery of human rights, stability, and equality. In a number of the case studies, the use of law by the previous government or regime was a central aspect of the conflict, as the appropriation of law in defence of the political status quo contributed to repression and the undermining of the rule of law. The task, therefore, for the new arrangements for the administration of justice is to restore those values undermined by conflict and to become the guarantor against such repression that the preceding arrangements were not.

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III A Survey of the Case Studies A

Some General Comments

In cases as diverse as those surveyed, it is advisable to be somewhat cautious about identifying common trends or features. The cases cover an array of evolving political situations and cultures, and there are also differences as to the level at which the peace agreements operate and the extent to which they have been implemented. Nonetheless, all of the agreements provide in some way for changes in some aspect of the administration of justice. Some of these changes envisaged are extensive and some are very limited, but the fact that all of the agreements contemplate change in the administration of justice demonstrates its relevance to the political processes being negotiated. Because these agreements are designed to address complex problems, they envisage complicated solutions. This complexity is frequently reflected in the planning and implementation of the new administration of justice arrangements. As some of the agreements only sketch out in broad terms what those changes should be and a number are not yet properly implemented, it is unwise to make final judgments about the meaning and effect of those changes. The implementation of the agreements is still evolving and in their implementation they also display changes, as they are re-negotiated and refined. For example, in Northern Ireland the details of the changes to policing envisaged by the agreement were left to a Commission, whose detailed report (Independent Commission on Policing in Northern Ireland, 1999) became the subject of an ongoing political battle, the outcomes of which are still being negotiated and disputed. In another example, Bougainville, a blueprint for constitution-making – including the jurisdiction of the courts – was laid down in the peace agreement, but the drafting was left to a constitutional convention. In all of the agreements, the arrangements made or envisaged are complicated by the necessary trade-offs that occur during political deal-making and by the inevitable checks and balances that are a feature of complex power-sharing agreements. These tend to produce a proliferation of structures, which sometimes overlap and may be unclear. For example, there remains some confusion over the apparently coinciding jurisdiction of the Human Rights Chamber and other higher courts in Bosnia (Council of Europe 2001). This exemplifies the problems created by the reform and overlaying of previous systems with different legal regimes and cultures. Further, “[t]he discontinuity of the territorial structure bequeathed by the Dayton Peace Accords is compounded by Bosnia’s mixed legislative inheritance. The statute books contain a multitude of outdated, overlapping and inconsistent laws from the pre-war, wartime and post-war periods. They are applied (or not) by courts which are too numerous, too expensive, too inefficient, and too vulnerable to political influence.” (International Crisis Group 2002b: 1).  

Bougainville Peace Agreement 2001 Ch 3. Bougainville Peace Agreement 2001 Ch 3(14-21).

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Furthermore, that these are self-determination conflicts, where the role and sovereignty of law is both an aspect and a symptom of the conflict, means that the nature of the changes to the legal system reflect the extent to which autonomy has been achieved in the agreements. For example, the Bougainville peace agreement allows for the development of indigenous Bougainvillean courts, but specifies that these will always be ultimately subject to the national Papua New Guinea courts. This is mirrored in the Mindanao agreement, which allows for the enhancement of existing Shari’a courts and the development of indigenous tribal courts, but both are ultimately subject to the Philippine Supreme Court. In other cases, the courts are more-or-less independent within the autonomous political unit, e.g., Kosovo (CEELI 2002b: 2-3). Thus, the complexity of the problems, the diversity of the parties involved, the layering of the authorities, and the degrees of autonomy offered under the agreements all create complex arrangements that are still evolving. B

Key Issues

1 Constitution Making A key element of any new political settlement is constitution making, providing both the legal stability required for the new arrangements and institutions to take hold and an opportunity to articulate the vision of the form of the agreed democratic arrangements. Constitutions are therefore both ‘mission statements’ and political blueprints. They are also often monuments to political compromise, and in the translation from agreement to law new problems can emerge. Some of the institutions created by this constitution making may be the ‘price of the deal’ or may be safeguards for the political and legal arrangements created by the agreement; as such their implementation may be resisted. Any changes in legal sovereignty envisaged or laid down in the agreement may have to be given further legal effect and that may well be done through new constitutional provisions, the negotiation of which may create further difficulties. Insulating the new arrangements against change may be another concern. It is sometimes the case that, having arrived at an agreement, some parties seek to prevent its re-negotiation and thus seek to entrench the new institutions and governing principles. However, a number of the agreements permit further change in the constitutional status of the region (e.g., Northern Ireland) or later full or limited secession by parts of the region from the newly created autonomy (e.g., Gagauzia). Some agreements are more detailed than others in all of these respects. In Bougainville, a detailed blueprint for constitution-making was laid down in the agree    

Bougainville Peace Agreement 2001 Ch 8(128; Ch 13(276). Bougainville Peace Agreement 2001 Ch 13(283); (285); (289-291). RA 9054, 2001 Art VIII 19. Northern Ireland Act 1998 Sec 1. The Law On The Special Legal Status Of Gagauzia 1994 Art 1.

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ment, and in Bosnia the agreement had an interim constitution attached to it. In Kosovo, which also had an interim constitution appended to the agreement, a further ‘constitutional framework’ was produced in 2001. In other places, such as Northern Ireland (Harvey 2003: 1013-1014) and Macedonia,10 only limited constitutional changes were contemplated, but the manner in which these changes took place led to further negotiation difficulties. The failure to implement agreed constitutional changes raises further problems, not least an erosion of confidence in the deal brokered and a lessening of general confidence in the peace-making process. An interesting issue is the interplay between the general principles or ethos that the agreement embodies and the existing constitutional model that it seeks to modify or replace. In Northern Ireland, for example, there was an inevitable friction between the output of the constitutional negotiations (the Belfast Agreement) and the pre-existing British constitutional model, which places a premium on parliamentary sovereignty. This was further complicated by the manner chosen to embed the agreement politically, which was by referendum throughout the whole of Ireland. Referenda have constitutional legal status in the Irish Republic, but not in the UK and thus not in Northern Ireland. This meant that transformation of the agreement into law took place through the UK parliament drafting and enacting the Northern Ireland Act 1998, in a process that was fractious and contentious and over which many arguments persist. (Mageean and O’Brien 1999: 15241537) In some of the Eastern European cases, there are continuing problems with the fulfillment of the agreements; for example, Gagauzia, where the Tribunal of Gagauzia has not been set up, thus delaying and perhaps negating one of the legal changes envisaged in the agreement. In Macedonia, a new constitution was enacted in November 2001, which contradicted the ‘ethnically neutral’ ethos agreed in the August 2001 Framework Agreements (see Ch 9). This ‘ethnically neutral’ approach appears to have been an acknowledgement that one of the difficulties with the pre-existing legal environment was its partisan ethos, a problem that runs throughout many of the case studies. Significant changes to existing constitutional rules or the creation of a wholly new constitutional culture may affect how well the new arrangements take hold. If the new values embodied in the agreements are significantly different to the previous order, there may be difficulties in the ‘bedding down’ of the arrangements. New values, which draw upon standard international norms of democracy and justice, may frame the agreement, in the form of a preamble, or form part of its structure – in the form of references to various international treaties, such as the European Convention on Human Rights. This may create problems domestically: if there is no local ownership of the new constitutional culture, the new institutions that stem from it may founder. This may be a particularly acute concern where the peace-making process is largely managed by international ac  10

Bougainville Peace Agreement 2001 Ch 3(14-21). Rambouillet Interim Agreement for Peace and Self-Government in Kosovo 1999 Ch 1. Framework Agreement Annex A.

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tors. In some of the cases, the agreement provides a draft constitution or articulates certain constitutional principles.11 In some cases, a wholesale re-invention of the constitution was necessary, because of the nature and extent of the conflict, e.g. Kosovo.12 In others, amendments were made to the pre-existing arrangements to take into account the cultural differences that the agreement attempts to resolve, e.g., Mindanao. In one or two cases, these changes were fairly minimal, e.g., Northern Ireland (Harvey 2003: 1013-1014). One way around some of these difficulties may be to invoke and to engage international standards in the making of new constitutional arrangements. A number of the agreements expressly refer to international and regional treaties, such as the UN Charter, the UN Covenants and the European Convention on Human Rights (ECHR) – which is widely referred to in Bosnia,13 Kosovo,14 and Northern Ireland,15 and given formal status. However, it seems that there was little recourse to international legal standards when designing the institutions. The real problem has been the failure to employ the numerous relevant ‘soft law’ standards in creating and developing the institutions. No doubt this is partly because they are so numerous and therefore difficult to assimilate into one coherent set of benchmarks, particularly by non-specialists who are negotiating agreements quickly and under considerable pressure. This may be one of the reasons for the more widespread use of the ‘rule of law’ rubric, as it provides a shorter, more coherent, and comprehensible set of benchmarks. The ‘rule of law’ is a somewhat nebulous, jurisprudential concept, which makes it harder to quantify and implement. Further, it does not come replete with a ready-made enforcement mechanism and case-law, unlike the international human rights standards. 2 New Legal Institutions Most of the agreements envisage some new legal institutions in one form or another. Even in places like Northern Ireland and Georgia, where the emphasis was upon the reform of existing institutions, new legal entities were created or proposed along with new laws to govern them.16 Legal institutions can range from legislatures and formal courts to commissions, public inquiries, quangos, judicial authorities, ombudsmen, etc. It is from the initial agreement that these institu11 12 13 14 15 16

Dayton Peace Agreement Annex 4; Bougainville Peace Agreement 2001 Ch 3 Art 21; Northern Ireland Peace Agreement 1998 Ch 2, which specifies principles and provides draft clauses for the legislatures. Rambouillet Interim Agreement for Peace and Self-Government in Kosovo Ch 1; A Constitutional Framework for Provisional Self-Government in Kosovo’. Dayton Peace Agreement Annex 6. A Constitutional Framework for Provisional Self-Government in Kosovo’, Ch 3.2(b). Good Friday Agreement (Northern Ireland Peace Agreement) 10 April 1998 Strand 1 para 26(a); ‘Rights Safeguards and Equality of Opportunity’, para 4. For example, the Northern Ireland Human Rights Commission, Northern Ireland Act 1998 Sec 68-70; Equality Commission for Northern Ireland, Northern Ireland Act 1998 Sec 73-74.

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tions flow – either they are built into the agreement itself or they are created under it, as illustrated in Tables 1-2. Table 1 Key Legal Developments Measure New constitution? Case

Const court?

Other New courts?

Reform of New Judicial old system judges ap- Commispointed? sion?

NI

No

No

limited

No

No

Yes

Yes

?

yes

Yes (JKJPPC)

Yes Art VI Yes, preexist

Yes – in progress Yes

partial

Some – ongoing Yes + recertific

Yes IJC (2001) ?

Ko

BiH Geo

Partial NI Act (see In Re Robinson) UN – in Ch1 of 1999 Accord; 2001 Constitutional Framework Dayton + Annex 4 Amended. ABK has form of constitution

Mol

Mac

South Ossetia memorandum 1996 Amended Yes Gaugauzia Basic Law 1998 Legal status contested. 1991 Yes – preamended exist by 2001 FW agreements

Basic Law, Art 20.; Tribunal of Gaugauzia (not yet set up).

Implied by Council Art 20 of Magistrates

1996 reyes structuring

Yes

Ministry of Justice Rep. Judicial Commission

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Min

2001 Agreement lays down principles and mechanism for development 1996 Peace Agreement

Subject to PNG supreme court

Remains the Phillippine Supreme court

Permitted, but subject to PNG courts; possibility of additional jurisdiction New Shari’ah Appellate & other courts; tribal courts

Provided for

Of some existing Shari’ah courts

Table 2 Other Justice Changes

Measure

Case NI

Ko

BiH

Geo

Ref to Int. Standards? Yes

Positive action measures in justice system? PSNI 50-50 recruitment (time limited)

New arrangements for criminal justice? Changes to policing & Criminal Justice

Past addressed in legal form?

Prisoner release; Otherwise limited (Corrie investigation) Refugees; UN 1999 Implied? Policing; – yes; Criminal Jus- prisoner retice (eg Com- lease; agree2001 much ment to be missions) more specific bound by int. humanitarian law and ICTY partially Yes. Annex 2. Memo of Un- yes ECHR sover- derstanding eign over all with specific other laws measures to increase minorities in judiciary; but no veto rights in courts Brief Promised in ABK

brief

Other

Human rights Commission Police Ombudsman

International Judges on Constitutional Court

20  Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements Mol Mac Boug

Min

Amendments Limited/iminclude gen plied ref. No.

Yes – for Philippine Supreme Ct.

policing Yes policing, criminal law etc.

Refugees; amnesty law

Public Attorney role emlarged

Provisions for amnesty and weapons disposal Policing and Integration of Shari’ah Pubarrest powers former com- lic Assistance batants Office (Legal Aid)

Note: The details in each category are illustrative, not exhaustive. Where a category is left blank, there was insufficient information to complete it accurately. Where a ‘?’ is entered, the information was unclear.

Few of the agreements specify the full details of the courts. Only in those agreements that had constitutions appended and created constitutional courts are there detailed descriptions of the new institutions, e.g., Bosnia. In the other cases, this was left to subsequent legislation, enabled in many cases by the agreement.17 The cases provided for a range of changes – from an almost completely new courts system (Kosovo);18 a combination of new courts and partial reform of existing courts (Bosnia,19 Macedonia); new specialized courts or legal tribunals (Macedonia,20 Bougainville);21 to limited reforms (Moldova).22 In one case, that of Northern Ireland, there was no reform of the courts structure at all, although certain aspects of the ethos and procedure of courts are to be modified (Criminal Justice System Review Group 2000: paras 8.41-8.65). Most of these new or reformed institutions are permanent, although some contain transitional measures – such as the presence of international judges on the Bosnian Constitutional Court.23 Some legal institutions of limited life span were created, in order to implement parts of the agreement, with the intention

17 18 19

For example, Bougainville Peace Agreement 2001 Ch 13, Art 276. A Constitutional Framework for Provisional Self-Government in Kosovo Ch 9.4.3. For example, Decision Enacting the Law re-amending the Law on Court of Bosnia and Herzegovina, Office of the High Representative, 24 January 2003. 20 Framework Agreement Annex A Arts 104; 109. 21 Bougainville Peace Agreement 2001, Chs 12; 13. 22 Republic of Moldova, Parliamentary Resolution 152-XIII on Approving the Concept of Judicial and Legal Reform in the Republic of Moldova (1994). 23 Dayton Peace Agreement Art VI(1).

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that these will be wound up once the implementation task is carried out (e.g., the Decommissioning Body and the Sentence Review Body in Northern Ireland).24 Given the autonomous nature of some of the political entities created, an interesting question is the nature of the relationship of the courts inside the area (‘local courts’) governed by the agreement with national or transnational (‘external courts’). For example, in Mindanao, administration of justice is a matter reserved to the national government, but the creation of new Shari’a and tribal courts is devolved to the Mindanao region.25 However, the Shari’a and tribal courts only have jurisdiction over the Muslim and tribal communities and are subject to the oversight of the Philippine Supreme Court.26 In Bougainville, the agreement allows for the development of Bougainvillean courts27 but these too will be subject to the jurisdiction of the Papua New Guinea ‘national courts’, although the agreement allows for the limited development of additional jurisdiction.28 Because of the necessity of a robust and independent judiciary, the question of how judges and law officers are appointed is a vital concern. In a number of the cases, commissions or investigatory bodies have been set up to recommend changes to the administration of justice (e.g., Kosovo).29 In other cases, there have been attempts to increase the representativeness of the judiciary by introducing positive action measures. A number of the agreements contain implied quotas, specifying that courts shall be made up of a certain number of representatives from one region and a certain number from another region, community or ethnicity (e.g., Macedonia,30 Mindanao).31 In Bosnia, a Memorandum of Understanding was signed in 2001 in an attempt to specify particular measures aimed at increasing the representation of minorities in the judiciary.32 In Northern Ireland, however, despite long-standing concerns about the performance of the judges and the identification of the judiciary with Unionism, little has been done to address this issue, although a judicial appointments commission has been created to advise upon the appointment of judges.33 One significant change has been the removal of the requirement to make a declaration of loyalty to the Crown for

24 Northern Ireland Arms Decommissioning Act 1998; Northern Ireland (Sentences) Act 1998. 25 Mindanao Peace Agreement 1996 Ch III(A). 26 RA 9054 Arts VII; VIII. 27 Bougainville Peace Agreement 2001 Ch 8(128); Ch 13(276). 28 Bougainville Peace Agreement 2001 Ch 13(283); (285); (289-291). 29 A Constitutional Framework for Provisional Self-Government in Kosovo Ch 11.1(b). 30 Framework Agreement of Ch 4; Annex A Art 109(2). 31 Mindanao Peace Agreement 1996 Ch III(A). 32 Memorandum of Understanding on Appointment Procedures Concerning the Judiciary of Bosnia and Herzegovina between the Independent Judicial Commission and the Ministries of Justice of Republika Srpska and the Federation, 4 July 2001. 33 Justice (Northern Ireland) Act 2002 Sec 2-8.

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those becoming QCs (senior barristers),34 and that change was in part prompted by a court case taken by two prominent Nationalist barristers (In Re Treacy & McDonald 2000). Reform and re-training of the judiciary is another important concern. In some places, such as Kosovo, the legal infrastructure and the judiciary largely disappeared during the conflict, necessitating the creation of a new, indigenous one. In other examples, there is continuing re-training and re-accreditation of judges, prosecutors and other legal officers, e.g., in Georgia, where new judges are also being appointed (Council of Europe 1999a: 20). In Bosnia, existing judges and prosecutors have had to re-apply and undergo an evaluation (OHR 2002a). In most of the cases, there is an emphasis on re-training and reform of the judiciary and the legal process, with a number of large scale projects focused on this, e.g., Central and East European Law Initiative (CEELI). Only in Northern Ireland has there been no attempt to re-train or re-accredit the judiciary, beyond the UKwide training in preparation for the Human Rights Act 1998. Consequently, much re-training of judges and lawyers is being conducted, particularly across Eastern Europe. This involves training in international law standards and particularly in the ECHR. A number of the programmes focus on UN ‘soft law’ standards, but questions remains over the effectiveness of the training. These problems are most acute in countries where the independence of the judiciary is not assured, where there are funding problems, e.g., in Macedonia (CEELI 2002a: 7), and where there is poor political will for the implementation of legal reforms, e.g., Bosnia, where the HRSG intervened and imposed laws to speed up judicial reform (OHR 2002b). There is also evidence of resistance to new ideas about law and legal practice and widespread corruption in the public services, including the judiciary (Mertus 1999: 23). As the International Crisis Group observed about Bosnia: “millions of dollars have been spent since 1996 by an assortment of international agencies to promote the rule of law in Bosnia, including hefty salaries for over 200 foreign legal experts who have worked to improve the performance of Bosnia’s 1,200 judges and prosecutors. In comparison to the sums expended, the results achieved have been pitiful” (International Crisis Group 2002b: 10). 3 Changes to Law and Criminal Justice Because repressive or draconian criminal justice systems and emergency law have contributed to many of the problems the agreements seek to address, an important area of change can be the new criminal justice arrangements and the abolition of emergency law. However, the latter is now less likely to occur given the current international political climate and as the major global powers seek to increase anti-terrorism powers and thus further erode civil liberties. In Northern Ireland, for example, despite references in the Good Friday agreement to the need to ‘normalize’ criminal justice, long-standing ‘emergency’ legislation has been replaced with permanent anti-terrorist legislation applicable to the whole of the UK, with 34

Justice (Northern Ireland) Act 2002 Sec 19.

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special sections retained for Northern Ireland.35 There is a continuing wrangle over the proposed reforms to policing and criminal justice, with further amendments to the policing legislation. Therefore, it can be seen that a significant element of any new arrangement will be changes to policing, criminal justice, and emergency laws. In Bougainville, for example, the agreement envisages that the autonomous government can declare and initiate a state of emergency in Bougainville.36 4 Dealing with the Past One of the features of internal conflict and civil war in the modern era has been the attempt by various institutions, including the United Nations, to address the issue of gross human rights violations that have occurred during those conflicts. Many of those conflicts, including some of those encompassed in the case studies, fall outside the legal definition of ‘war’ and thus outside the ambit of the international laws of war. Whilst some of the Geneva standards may apply to conflicts that are not technically wars and attempts have been made to generate international humanitarian law standards that apply to internal conflicts, there have been problems in finding a legal framework for addressing the many human rights violations that conflicts generate. A central problem has been the fact that human rights treaties are enforceable against governments or states and not usually against third parties or non-state actors. Therefore, where there is a civil war or other form of ethnic and largely internal conflict with rights violations carried out by paramilitary organizations, it is difficult to apply those treaties. It is also practically difficult to apply those standards to non-state actors who may be acting at the behest of the government or another kin state, however covertly. Thus achieving accountability for violations of rights and upholding the rule of law can be highly problematic. Notwithstanding these problems, dealing with the past and with the abuses committed by prior regimes has become a necessary element of resolving conflict and creating political agreement. There are many ways in which the law can respond to and seek to address these violations and by which individuals and states can be made accountable for such violations. It can be done either by a criminal or a civil process: former dictators and generals can be put on trial for their crimes, or a form of public investigation can be carried out. The format of the criminal trial is familiar – from the Israeli trial of Adolf Eichmann to the Argentinean trials of the former junta. Latterly, the model has been employed to address the gross violations arising from the conflicts in Rwanda and the Balkans. However, successor trials are relatively rare (Teitel 2000: Ch 2), and although the criminal process may demonstrate the shift to liberal democratic values, there are dilemmas about the application of due process. Trying former dictators and their collaborators may be politically attractive but it gives rise to complex legal problems, and the conduct of such trials may actually undermine the new legal ethos that they seek to establish. This is clearly exhibited in some of the problems experienced in a number of the case studies, 35 36

Terrorism Act 2000. Bougainville Peace Agreement 2001 Ch 12.

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for example, Bosnia. There are other legal models available and in use – such as public investigation. This is a less obvious, but pervasive, model, of which two principal variations can be identified – the truth commission and the public inquiry. Public inquiries can be seen as a British export, and tend to be highly legal and are usually narrowly focused, whereas truth commissions are more usually quasi-legal with a wider ranging remit (Hegarty 2003). Since the early 1970s, truth commissions have developed as ways of addressing patterns of human rights abuses (Hayner 1994). Truth commissions are usually, but not exclusively, addressed at abuses committed by the state or by previous regimes exercising state power and usually arise during or as a result of political transition. They are often a way of reconciling the new version of the conflict with the old, although they are sometimes perceived as ‘victor’s justice’. The use of the term ‘truth commission’ implies that ‘the truth’ has been denied or covered up and that the purpose of the commission is to find and establish that truth. Truth commissions have been heard all over the world,37 including South Africa,38 Guatemala,39 Chile,40Argentina,41 and El Salvador.42 Each truth commission is a separate and distinctive process, but they are all essentially flexible products of political transition, often perceived as a necessary part of that transition. Public inquiries, on the other hand, are a creation of the common law, principally in the UK, although they have been exported to other common law countries. They are often very formal, highly legal, and, although they are intended to be inquisitorial, they can become highly adversarial. In Northern Ireland, the public inquiry model is currently being used to investigate the events of Bloody Sunday, where thirteen civilians were shot dead by the British Army during a civil rights demonstration on 30 January 1972. Some, but not all, of the cases surveyed have made attempts to address the issue of the past. Table 3 provides examples of some of the key measures, which include the incorporation of international human rights standards in the agreements, changes to policing and criminal justice, the release of prisoners, the integration of former combatants into the police forces, and the setting up of institutions to address the violations of the past and to provide accountability in the future. 37

For example, truth commissions are also planned or in process in Bosnia and Sierra Leone. 38 Truth And Reconciliation Commission of South Africa Report (1998), Cape Town, South Africa. 39 Guatemala: Memory of Silence: Report of the Commission for Historical Clarification (Conclusions and Recommendations) (1999), Guatemala City, Commission for Historical Clarification. 40 Report of the Chilean National Commission on Truth and Reconciliation (1993). 41 Nunca Mas: Report of the Argentine National Commission on the Disappeared (1986). 42 From Madness to Hope – The 12 Year War in El Salvador: Report of the Commission on the Truth for El Salvador, (1993), UN Doc S/25500, United Nations, New York.

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Table 3 Addressing the Past through Legal Change – Some Examples from the Case Studies

Measure Is there reference to inCase ternational standards? Northern Yes – ECHR Ireland Kosovo

Yes – UN 1999; 2001 (much more specific)

Bosnia and Yes (Annex Herzegovina 2) ECHR sovereign over all other laws

Positive action measures in justice system? Police: 50-50 recruitment (time limited)

New arrangements for criminal justice? Changes to policing and criminal justice Implied Policing; – guaranteed Criminal places on justice (e.g., commiscourts for ethnic groups sions)

MemoranYes dum of Understanding with specific measures to increase minorities in judiciary; but no veto rights in courts

Georgia

Brief

Macedonia

Amendments Limited and include gen- implied eral reference

Bougainville

No

Mindanao

Yes – for Philippine Supreme Court

Past addressed in legal form?

Other

Prisoner release; otherwise limited

e.g., Human Rights Commission

e.g., Police Refugees; Ombudsman prisoner release; agreement to be bound by international humanitarian law and International Criminal Tribunal on the former Yugoslavia Partial International Judges on Constitutional Court

Promised in Abkhazia Policing Measures to deal with refugees; amnesty law Yes – chang- Provisions es to policfor amnesty ing, criminal and weapons law, etc. disposal Policing and Integration of arrest powers former combatants into police forces

Public Attorney role enlarged

Shari’ah Public Assistance Office (legal aid)

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The extent to which any of the agreements engage in a discourse about the restoration of the rule of law or the acknowledgement of past wrongs or abuses is limited. Despite the increasing incidence of truth processes in transitional societies, few of the agreements require the creation of mechanisms to deal with such past wrongs, such as a truth commission, although in some of the cases there are parallel legal processes aimed at providing some form of accountability, e.g., the International Criminal Tribunal for the Former Yugoslavia. Some of the agreements provide for amnesties or the release of prisoners, e.g., Northern Ireland, but many of these measures are not politically agreed or possible at the point at which the agreement is made. Another form of accountability arises when considering the issue of whether those who have been involved in the previous regime should be allowed to participate in government, law, policing, or the civil service. In Eastern Europe, the process of lustration has been used to remove many such individuals from public positions and offices. Lustration is “a mode of accountability that bypasses the criminal law by removing or disqualifying whole categories of people from government jobs” (Cohen 2001: 231). The extent to which this is contemplated by agreements is important. Most of the agreements refer in some fashion to the need for reconciliation after the conflict, or at least to provide mechanisms to dispose of arms (e.g., Kosovo),43 to release prisoners (e.g., Northern Ireland),44 to provide for the return of refugees (e.g., Macedonia),45 or to integrate former combatants into new policing arrangements (e.g., Mindanao).46 However, lustration is not referred to in detail in most of the agreements and, whilst it has taken place to some extent in some of the cases, in others it has not. This may have consequences for the stability of the agreement. In Northern Ireland, for example, where there was no provision for lustration but former paramilitary combatants were specifically barred from the police, many of those associated with the former police service and judiciary remain in office. The issue of how victims of violence associated with the conflict are dealt with is important, but almost entirely overlooked. Few of the agreements do anything other than pay lip service to victims. Few provide directly for reparations, public hearings, land reform or reassignment, and in those that have done so (e.g., Bosnia)47 implementation of the guarantees (of the right to return, for example) has been poor (Bell 2000: 253-254). The notable silence of the agreements on practical measures to help victims of the conflict may be because such arrangements can only follow a stable political settlement and thus may not be part of the agreement. Nonetheless, it is a salutary lesson about the political muscle that 43 44 45 46 47

Rambouillet Agreement Ch 7 Arts III-VII; XVI. Northern Ireland (Sentences) Act 1998. Framework Agreement Annex C. Mindanao Peace Agreement 1996 Ch II(19). The 1995 Dayton Peace Agreement includes explicit recognition of the right of refugees and displaced persons to return to their homes and repossess their properties in Annex 7.

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victims and the groups that represent them have in the hotbed of political negotiations. 5 Using Law to Implement Change Law is a primary tool by which political change can be driven, although it is not the only one. Thus, key to the success of any agreement will be the manner in which the law implements and safeguards it. An independent judiciary and an active civil society are crucial in achieving this. In respect of the administration of justice provisions, there are wide variations in the extent to which there are specific implementation provisions for the administration of justice. In some cases, there are no formal implementation provisions, but informal ‘side-deals’, ‘letters of comfort’, or annexes that relate to implementation, e.g., Kosovo.48 In some cases, implementation of the agreement is left to particular bodies, which may either be specifically created under the agreement49 or subsequently set up,50 and there is usually implementing legislation supplementing (or in some cases, amending) the agreement. Finally, some agreements provide for periodic reviews,51 and, in some cases (e.g., Northern Ireland), there are controversies or disagreements about implementation in relation to the administration of justice. Perhaps as important as the implementation mechanism is the set of values or principles that the agreement purports to incorporate into the newly created or amended justice system. An examination of those values can indicate much about the nature of the justice system the agreement seeks to create. IV Law in Transition A

The Role of Law

Law is the main method by which policy change is instituted and by which new institutions that are a product of that policy change are established. Thus, in Northern Ireland, the Good Friday Agreement is a political deal between the various political parties and the two governments that was ratified politically by an all-Ireland referendum. Technically, the agreement is comprised of two agreements – one agreed between the political parties and then the international agreement between the two sovereign governments. However, in order for it to 48 Rambouillet Agreement Ch 5. 49 The Bougainville Peace Agreement 2001 creates a Constitutional Commission to propose a constitution (Ch3 Art 14-17) and a Constituent Assembly to debate and adopt a constitution. 50 For example, Macedonia (Ch 8.1 of the Framework Agreement of 2001 requires the presentation of specified draft constitutional amendments to the Macedonian Parliamentary Assembly within forty-five days); Northern Ireland (Ch 2 and Annexes A and B of the Good Friday Peace Agreement 1998 contain draft legislation). 51 For example, Northern Ireland (Ch 1, sections 5-8 of the 1998 Peace Agreement, which provide for emergency and four year reviews).

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be implemented it had to be transformed into law, primarily in the form of the Northern Ireland Act 1998. This was supplemented by legislation in the Oireachtas (the Irish parliament), further legislation in the Westminster parliament, and by bilateral international treaties between the two governments. Law was therefore the necessary vehicle by which political agreement was implemented. Law has another important role in political transition, that of accountability and the re-assertion of the rule of law. The rule of law is seen as an intrinsic element of good governance (Mertus 1999), providing the stability and accountability necessary for such governance to flourish. As Neil Kritz observes: “The rule of law does not simply provide yet one more vehicle by which government can wield and abuse its awesome power; to the contrary, it establishes principles that constrain the power of government, oblige it to conduct itself according to a series of prescribed and publicly known rules” (Kritz 1996: 588). Yet the practical experience for many is very different. Law may deliver the accountability and truth sought by the victims of human rights violations, but it is also often the tool employed by states to avoid or deny responsibility. Thus, the law is a paradox – how can it be the primary means by which governments are held to account, when it has also provided the convenient vehicle through which those same governments have validated abuses and criminalized their opponents? For those who have hitherto opposed the state and for others who are the victims of state wrong-doing, the law is part of the state and is thus identified with its ethos and culture. In Northern Ireland, for example, the law has been that of the British state, draped with all the symbols and signs of the colonial power. That is why the re-shaping of law and state and the development of new legal processes are such central aspects of political transition (Teitel 2000: 66-67). Without this change, the law remains the property of the state that was alien in culture and political legitimacy and which may have carried out human rights violations. Without such change, the state remains deeply distrusted by significant sections of society. Substantive change also signals a willingness to acknowledge the faults of the past and the abuses they spawned. However, with the advent of such change, the state risks losing control of the law and thus of a primary means by which its policies and behaviour can be validated. For newly created states or political entities, the assumption of law and the means of making it (through fully or partially independent legislatures) is a key achievement. However, those communities or ethnicities that supported the previous incarnation of the state may regard the pre-existing legal system as sacrosanct and so may view any attempt to reform or transform it as deeply suspect. This explains why, in Northern Ireland for example, change to the legal and criminal justice systems remains so controversial. One way to resolve this paradox is to see the law’s role as facilitating both exposition and validation. The methodology of the legal process may allow access to information that might otherwise be unavailable – the nature of many types of legal process is suited to such an investigatory approach. Secondly, and despite its limitations, the law is one of the very few mechanisms by which the state may be made accountable for its actions by individuals. Thirdly, the law provides a means

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of ‘drawing a line’ under difficult or controversial events and thereby stamping a final authority upon a version of those events. In such an acknowledgement there is the minimum form of accountability that is necessary for the rule of law to prevail. It is for this reason that many of those who have been abused by legal processes still seek legal redress, arguing that the wrong done in the shape of the law may only be undone by the law. It is also for this reason that the state chooses to make use of legal processes – law provides the official version it requires. Since the end of the Second World War, there has been a marked growth in the priority given to accounting for human rights violations generally. Despite this, genocidal conflicts and gross violations of human rights persist (Bassouini 1996: 10). As Eide (1983) argues, the development of human rights has three stages – idealization, positivization, and realization. The evolution of the international human rights machinery is currently somewhere between stages two and three. There has been an increase in the acceptance of international human rights norms, as evidenced by the increasing accession by states to international human rights treaties, the proliferation of treaties on specialized areas, and the expansion of ‘soft law’. But the challenge is no longer to persuade states to sign up to human rights declarations, but rather to ensure that they adhere to them. Governments are generally more anxious than they previously were to sign human rights treaties, but many continue to commit serious human rights abuses despite these apparent commitments. This gap between rhetoric and practice has led to a greater focus upon accountability and investigation, particularly in political transition. If a state agrees to be bound by international human rights treaties, then those treaties create a normative standard against which that state may be judged. These international standards have been utilized across the agreements to provide benchmarks of core normative values. The importance of the promotion of human rights in the democratization of states has become increasingly important, as the upheavals in Southern Africa and Eastern Europe demonstrate. The attempts to resolve self-determination disputes, such as those arising from the break up of the Soviet Union, have permitted the wider disclosure of violations committed by the prior regimes. The political agreements arrived at in resolving some of these conflicts have also involved, as part of the condition of the deal, an accounting for the violations committed by the prior regime. The emergence of evidence of such gross violations and the perceived need for some formal legal response to them have led to the creation of both ad hoc mechanisms (e.g., the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal For Rwanda) and permanent structures (such as the International Criminal Court) to address the violations. These institutions are themselves subject to criticism of their effectiveness and their reach (Akhavan 1997; Morris and Scharf 1998), but their formation can be seen as another step towards the full ‘realization’ of rights.

20  Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements

B

Sources and Standards

Law therefore provides both normative standards by which change can be judged and a mechanism by which change can be driven. It is useful therefore to reflect on the legal ideas, values, and benchmarks that may influence new systems and institutions of justice and by which those new systems may in turn be judged. 1 International Standards There are a plethora of international standards and guidelines for the administration of justice. In the modern era, these have tended to be driven by concerns about human rights and by adherence to international human rights standards. In addition to global and regional human rights treaty law (e.g., the UN Covenant on Civil and Political Rights; the jurisprudence of the UN Human Rights Committee; the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights), there are many basic standards that have quasi-legal status (known as ‘soft law’). They largely emanate from the UN, but also come from the Council of Europe and other organizations. The list of relevant UN principles alone runs to several pages, but amongst the most important are: • The UN Basic Principles on the Role of Lawyers; • The UN Guidelines on the Role of Prosecutors; • The UN Basic Principles on the Independence of the Judiciary; • The UN Code of Conduct for Law Enforcement Officials (and the Commentary thereto); • The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; • The UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions; • The UN Minimum Rules for the Administration of Juvenile Justice; and • The UN Victims Declaration. There are other types of standards, less overtly concerned with human rights. Useful sources of this nature are documents such as the United Nations Framework for Strengthening of the Rule Of Law, which incorporates a number of concepts and benchmarks, for example, a strong overarching constitution, an independent judiciary, limits on derogations from international law and human rights standards, non-discrimination, national human rights institutions, and “a strong legal framework, under the Constitution, which protects human rights and democracy, and which provides for effective redress” (United Nations 1994: para 3). The OSCE has also promulgated relevant standards on human rights, justice, and the rule of law. These numerous documents include affirmations that democracy is part of the rule of law; that everyone is equal before the law, the importance of an independent judiciary, and the relevance of international human rights norms to the rule of law (OSCE 1990); the importance of accountability

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and state action compliant with the law (OSCE 1991); and the centrality of due process and fair trial rights (OSCE 1989; 1990; 1991). Like the OSCE, the EU has increasingly adopted the language of human rights and the rule of law, inserting the concepts overtly into the Treaty of Rome via the Amsterdam Treaty and by linking them specifically to its conditions for accession to the EU and to democratization and human rights (EU 1991). There are many other legal and human rights considerations relevant to the case studies, such as the accommodation of minority rights and protections for linguistic and ethnic groups within the legal system. Such protections may form part of the agreement reached in the settlement of the political dispute, but unless they form an inherent part of the legal system, through, for example, guaranteed places or quotas for minority groups in the judiciary, they may have little effect in practice. In Northern Ireland, a time-limited form of quota was implemented in the recruitment of police officers to the new police service, guaranteeing 50/50 recruitment of Protestants and Catholics.52 Interestingly, there was no comparable mechanism proposed for the courts or the legal system, and nor was there any attempt to provide a similar guarantee of recruitment to the police for women or ethnic minorities, despite the acknowledgement by the Commission on Policing that both these latter groups were similarly under-represented in the police force (Independent Commission on Policing in Northern Ireland 1999: 14.5). Whilst it is clear that many of the ‘soft law’ standards are used when training or educating personnel involved in the administration of justice, there appears, initially at least, to be little employment of these or other standards when designing the system. Indeed, in Northern Ireland, the UK government specifically rejected the proposal by the Northern Ireland Human Rights Commission and a range of human rights NGOs that the new police service created under the Good Friday Agreement should be required to have recourse to such standards (O’Rawe 2003: 1049). Even if such standards are not used in the design of the systems, they do provide useful benchmarks by which progress towards change can be measured, yet they do not appear to have been utilized to any great extent in this regard. 1 The Rule of Law The rule of law is an old-fashioned concept that has been undergoing something of a revival. Carothers provides a useful description: The rule of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last halfcentury. In particular, anyone accused of a crime has the right to a fair, prompt hearing and is presumed innocent until proved guilty. The central institutions of the legal system, including courts, prosecutors, and police, are reasonably fair, competent, and efficient. Judges are impartial and independent, not subject to political influence or manipulation. Perhaps most important, the government is embedded in a comprehensive 52

Police (Northern Ireland) Act 2000 Sec 46.

20  Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding (Carothers 1998: 2).

It should of course be observed that the concept of the rule of law embodies western liberal notions about justice and fairness that cannot be transferred automatically to other cultures, which may not interpret or apply the concept in the same way. The principle of the rule of law was most famously articulated by A. V. Dicey, who argued that every act of government or its agents had to be done in accordance with and subject to the strictures of the law. This was an elaboration of a principle that had long been identified by legal theorists and philosophers, but Dicey went further and described a number of characteristics of the rule of law. Amongst those characteristics were that all action was subject to the supervision of parliament, particularly that power which was discretionary, or delegated by parliament; and that an important bulwark against abuse of power by the state were the courts. Dicey saw the judiciary as having a crucial role in defending the rule of law in the face of the state (Dicey 1985: 175–186). Thus, in any reconstruction or re-invention of a nation, a robust and independent judiciary is key, particularly in places where the allegation made is that the pre-existing judiciary was simply a tool of the old regime. The concept of due process applies across the legal system, but is most developed in respect of the criminal law. The 1959 New Delhi Conference on the Rule of Law devoted some time to the specifics of the criminal process and the rule of law. Among the concepts identified as central to the concept of the rule of law were the presumption of innocence, the need to ensure that arrest powers and detention before trial are exercisable within strict limits, and the principle that the duty of the prosecution is not to secure a conviction – rather it is fairly to place the relevant evidence before the court (Marsh 1959: 8-18). The theory of the rule of law has been criticized, principally by the critical legal studies movement, as unattainable, unrealistic, and ultimately detrimental to democracy (Horwitz 1977; Tushnet 1983; 1988). It has been re-formulated as a highly formalistic conceptualization, which tends to contract it towards a narrow ‘rule by law’ definition, which would mean, for example, that slavery, provided it conformed with the law, would be compatible with this theory of the rule of law (Raz 1977: 211). In the modern era, the concept has been sidelined and subsumed to some extent by modern international human rights standards. The primacy of the contemporary discourse about rights meant that the concept of the rule of law is one less visited by legal commentators. However, with the tumultuous events of the past few decades and the needs of reconstruction and ‘democratization’ in places as diverse as the Balkans, Central and Southern America, and Africa, the ideas embodied in the concept of the rule of law have been re-popularized. Increasingly, it is being linked to delivering due process and core human rights norms as part of a bundle of standards regarded as necessary for democratization and political stability, what Juan Méndez calls, “the fundamental character of the new order to be established, an order based on the rule of law and on respect for

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the dignity and worth of each human person” (Méndez 1997: 1). Thus the liberal definition of the concept (Dworkin 1986; Allan 2001) provides a useful rubric of what values a legal system ought to embody, and perhaps also offers a clearer blueprint for politicians and political scientists than that of the often confusing and technical legal language of rights. There are essentially two elements to the rule of law – no one is above the law and everyone is equal before the law. From these flow the workings of the rule of law, or the benchmarks by which we can judge whether a society conforms to the rule of law. These benchmarks, which have emerged from numerous international bodies, such as the EU, the OSCE, and the Council of Europe, as well as the UN, produce a form of modern consensus around what is meant by the rule of law. Most current definitions of ‘good governance’ include adherence to the rule of law (e.g., EU 1991: para 5) and therefore it can be assumed that the following benchmarks are also necessary for that to exist. The benchmarks are: • equality before the law; • accountability under the law; • the application of due process; • fair trial; • an independent judiciary; • the incorporation of core international human rights; • democratic elections; • anti-corruption measures; • a strong civil society. This re-popularization of the rule of law is aided by the fact that the key ideas that it enshrines are also concepts embedded in the western idea of democracy – such as fairness, openness, equality, and due process. It may also have suited the political ideologies and agendas of some of those countries involved in these ‘democratization’ processes. Confronted by the great differences between the pre-existing legal systems of the eastern bloc and others from the common law model predominant in the USA, UK, and Australia, the rubric created by the rule of law provided a common benchmark by which new systems could be developed or old ones reformed. The warnings about legal colonialism apart, it may be that the modern formulation of the rule of law provides an accessible and culturally familiar kind of normative standard by which new institutions and the laws and the practices that emerge from them can be judged. However, the rule of law projects can also be seen as exercises in legal colonialism and the imposition of capitalist values on transitional societies, at a point at which they are weakest to resist them. “In post-colonial times ‘democracy, human rights, and good governance’ and ‘the Rule of Law’ are exported as part of a market driven ideology” (Twining 2000: 43). Capitalism is keener to export legal standards that allow markets to flourish than it is to export the standards of living deemed essential in western liberal democracies. The criticism can be made that the rule of law’s focus on the creation of democratic and legal institutions conveniently neglects the abject poverty in which many of those who are the

20  Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements

focus of this export exist (Faundez 2000; Wetlaufer 1999). It can be said that the imposition of western liberal ideas about the rule of law on emerging democracies has more to do with ensuring that the sort of society that emerges is one that will support market economies and globalization than with concerns about due process and human rights. Such concerns can be ameliorated if the linkage with rights is not just about ‘first generation’ civil and political rights, but also embraces economic, social, and cultural rights, which may be more important to the citizens of these emerging democracies. The reluctance of the great western powers to make this link to so-called ‘third generation rights’ is illustrative of the problem. The dangers of this approach are obvious. As Julie Mertus remarks: [T]he process of legal transplants by which politically strong states such as the United States persuade weaker states to adopt U.S.-style laws and institutions and the processes of international law making (through which transnational bodies determine the content and impact of international law) run the danger of violating democratic norms. Weaker states may feel forced to agree to adopt U.S.-style laws, and the process by which those laws are adopted may not be open to public scrutiny. Bosnia-Herzegovina provides one extreme example of this phenomenon. American advisers have played an incredibly forceful ‘behind the scenes’ role in the formulation and adoption of U.S.-style criminal and civil laws by the Bosnian entities (Mertus 1999: 17).

It certainly seems that, in a number of the case studies, the ‘great powers’ have imposed their own values and institutional ideals on the new arrangements. Yet in one case, that has noticeably not been the case. In Northern Ireland, there has been very little change to the core administration of justice institutions. There are no new courts, few new legal entities, and ongoing struggles over the legal powers and level of funding of those that have been created. There are some pre-existing entities (e.g., the Police Ombudsman) that are affected by the new arrangements. It may be said that this is because in Northern Ireland– unlike Kosovo or Bosnia – the pre-existing legal system at least operated some semblance of the rule of law. Because of this, it already looked much like the kind of system the ‘great powers’ sought to create or impose in many of the other cases. This was made simpler by the fact that the legal system in Ireland, the kinstate, did not look much different either, with the one notable exception of the possession of an entrenched written constitution. This is largely because the kinstate is a former colony of the other state party in the conflict and because it is a relatively recently liberated former colony that is very much part of the western liberal democratic consensus. That no entrenched written constitution was created for Northern Ireland as part of the agreement speaks volumes about where the real power in the negotiations lay. The UK’s refusal to allow a variation in its constitutional model has created continuing problems in the implementation of the agreement, not just in the areas of policing and security, but was also demonstrated in the recent (May 2003) unilateral decision by the UK government to suspend elections in Northern Ireland. Legal sovereignty remains in the hands of the UK, which means that it can suspend the democratic institutions by passing

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legislation through the UK parliament, even when, as in this case, the other government involved and most of the political parties in Northern Ireland disagreed with its decision. There are other problems with the rule of law as a concept and as a standard. One real criticism that can be made is that it can be used as a method of obscuring repression. It is possible to have systems that appear to conform to the rule of law, but in reality flout it, particularly those systems where national security is employed by the state as a shield to deflect the investigation and the discovery of activities that flout the rule of law. In Northern Ireland, for example, the state maintained that the rule of law ran throughout the conflict, when in reality it was engaging in very nefarious activities (Stevens 2003: para 1.3). The appearance that all was well, despite the criticisms of many international human rights NGOs, was maintained by the illusion of due process institutions such as the courts. Thus a failure to undertake a root-and-branch reform of the pre-existing system led to problems in creating the democratic accountable society the agreement strives to bring about. The problem of transposing alien legal cultures is better addressed by learning from the mistakes of the past. A bottom-up approach, which agrees rather than imposes new institutions and which spends time working out their structures and ethos through a thorough application of UN standards may address this problem. Combined with an understanding that rights and standards have to be enforced before they can be real, such an approach has a better chance of establishing long-term democratization. It may not suit the agenda of the ‘great powers’ to take such an approach, as it may produce outcomes that are anti-capitalist or fundamentalist, or which shine a light on the role of those ‘great powers’ in the conflict, but that is the price of a real commitment to democracy. The problem of corruption, endemic in some of the cases, may be a symptom of a failure to take such a grassroots approach, which would allow indigenous populations to decide and develop their own systems and institutions in a way that is compatible with international standards. V

Conclusion

The rule of law is often misunderstood. Lawyers use it as shorthand, with the consequence that the term is not always properly understood by non-lawyers. The most common misapprehension is that it simply means ‘rule by law’. The difference between the two is usefully explained thus: In a rule-by-law system, power is tightly held by a small social elite that uses the legal system to protect and consolidate its privileges and power. The voiceless majority has no tools to challenge this monopoly on the self-interested use of law. In a rule-of law system, by contrast, power is fragmented and dispersed among rival social groups and organized interests, none being powerful enough to work its will by intimidation or force (Holmes 2002: 90).

20  Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements

Whilst the re-emergence of the rule of law may owe much to the attempt to advance western capitalist ideology, the modern concept is now linked to the protection of fundamental rights. The rule of law may concentrate more on the protection of certain types of rights – such as due process, fair trial, and free speech – but that is due in large part to the nature of the concept, which focuses upon systems and processes of justice. The concept of human rights is, however, a much wider, deeper concept, only some aspects of which are guaranteed by the full implementation of the rule of law. Implementing change in the administration of justice is complicated by the fact that the issues to which law and justice relate are often major factors in the conflict and continuing areas of dispute. In a number of the cases, it might be thought that changes to the administration of justice were settled as a part of the agreement. Christine Bell, for example, in her comparison of Bosnia and Northern Ireland argues that in both cases rights were conceded by one side in the conflict as the price of tying the other into the settlement (Bell 2000: 159). Yet the problems in both cases have been complicated by ongoing controversies over rights (Campbell, Ní Aoláin, and Harvey, 2003: 342). Technically, rights cannot be conceded: they are universal and inherent. Perhaps one of the errors of political negotiations, however tempting, has been to treat rights as if they could be conceded, as if they were bargaining counters in the gift of one side, to be handed over to the other parties at a price. This has an ultimately detrimental effect on peace negotiations, as the illusion of concession may be created where one does not exist. In Northern Ireland, for example, rights are still being contested, demonstrated by the continual re-negotiation of changes to policing and criminal justice.53 If these rights were capable of being conceded and had in fact been conceded, then no contestation would be taking place. The difficulties in bringing about change are exacerbated by the fact that not only are the new or reformed courts emanations and creatures of the agreements, they are also often the channels through which controversies are directed and settled. This raises issues about how the agreements themselves are enforced. The matter of how well self-determination is delivered via the agreement may be for the courts to decide, but if those institutions remain largely unchanged from before then the trust of the general public in the verdicts of those institutions may be insecure. If the institutions of justice are unrepresentative of the population or if they fail to act independently and uphold both the rule of law and protect fundamental rights, then they fail to deliver the bulwark against corruption, repression, and discrimination promised by the agreements. All the case studies demonstrate the need for the reassertion of the rule of law and due process after conflict. In the majority of the cases, there is some official acknowledgement that the rule of law has been disrupted, at least, in the past, and that has contributed to the conflict. Even in Northern Ireland, where the state has generally been in denial about its role in the conflict, there is no doubt in the mind of most independent observers that the rule of law had been damaged. 53

Joint Declaration by the British and Irish Governments, April 2003, paras 20-24.

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In many discourses about the connections between conflict and the rule of law, a primary theme is the role of law as an instrument of repression. In such a situation, a partisan legal system is used by the powerful to oppress, persecute, and criminalize minorities, a prominent aspect of which is lack of accountability for the agents of the state who commit what would otherwise be criminal offences. This raises once again the paradox of the rule of law: the law as an instrument of abuse, repression, and conflict versus the law as the means of accountability and political transition. It is only a visibly transformed legal system that can resolve that paradox, through a justice system that in its values, ethos, and practices guarantees and delivers the rule of law. A deal which does not secure the rule of law and which makes elements of it negotiable may work in the interim but is unlikely to survive. The principles and ideals that underpin and guarantee legal transformation cannot be subject to negotiation. It is only through the rehabilitation of the rule of law that the peace sought in the agreements can take hold. Despite the geographical and cultural diversity of the cases, the one thing they all exhibit is the need for a political stability that recognizes and incorporates diversity, defends human rights, and that does so in a manner that promotes due process and the rule of law. The imposition of US-style institutions in some of the Balkan cases should lead one to distinguish between models and principles. Principles provide the physics that govern the erection of the institutions, models provide architectural blueprints that only permit the erection of certain kinds of institutions. Courts and other legal institutions should be allowed to take any shape provided they meet the requirements of the rule of law: their form should not be unnecessarily prescribed by any one kind of model, particularly where that model springs from a Western cultural experience of those principles. If there has been one particular flaw in the administration of justice projects, it has been to assume that only Western-style institutions can produce the rule of law. Indeed, perhaps one should deliberately seek to avoid importing particular models and prefer to design indigenous ones, which will satisfy the twin aims of embedding an understanding of the rule of law and creating institutions that incorporate and defend it in a culturally appropriate way. Whilst the agreements that create the new political and legal orders contemplated in the case studies are reflections of the trade-offs and safeguards inherent in negotiations, they should also seek to bring accountability and fairness where previously there was none. Therefore, all the cases demonstrate the need to re-imagine the rule of law in a way that links it to the protection of the full range of human rights, including economic, social, and cultural rights. A courts system that excludes from judicial office certain minorities or a constitution that does not prohibit discrimination on ethnic grounds can no longer satisfy the strictures of the rule of law. The rule of law, thus re-imagined, can only be grown in the native soil of the transitional state: it cannot be transplanted from the greenhouses of the west. It will only provide the stability and good governance sought if it is a concept embedded in every aspect of society and in its new institutions. Simply imposing it as a standard from ‘on high’, without building in an understanding and a feel for what it means in practice is insufficient.

20  Transforming Justice, Reclaiming the Rule of Law: Legal Transition in Complex Power-sharing Agreements

As Mary Robinson put it: [T]oo little attention has been given to building effective institutions. Human Rights cannot be realized in the absence of effective and accountable institutions. Where courts are corrupt, over-burdened and inefficient, basic civil rights will be violated. Where social ministries are under-resourced, disempowered or lack qualified staff, basic rights to adequate health care, education and housing will remain unfulfilled. Institution building and reform is neither easy nor particularly newsworthy – it is, however, essential (Robinson 2003: 7).

A

Resolutions and Regulations

Conference for Security and Co-operation in Europe (1991). “Report of the Third Conference On The Human Dimension Of The CSCE Moscow 10 September - 15 October 1991” CSCE. Conference for Security and Co-operation in Europe (1990). “Document of the Second Conference On The Human Dimension Of The CSCE Copenhagen 5 June–29 July 1990” CSCE. Conference for Security and Co-operation in Europe (1989). “Concluding Document of Vienna Conference” CSCE. EU (1999). Regulations 975/99 and 976/99 of 29th April 1999. EU (1991). European Council Resolution of 28 November 1991 on Human Rights, Democracy and Development. EU Council Regulation (EC) 975/1999 of 29 April 1999, Official Journal L 120, 8/5/1999, 1. EU Council Regulation (EC) 976/1999 of 29 April 1999, Official Journal L 120, 8/5/1999, 8. Organization For Security And Cooperation In Europe (OSCE) (1994). “Budapest Document: Towards A Genuine Partnership In A New Era” OSCE. UN HRC, (2001). “Creation Of A Pre-Sessional Working Group On The Administration Of Justice Of The Sub-Commission On The Promotion And Protection Of Human Rights”, Commission on Human Rights Decision 2001/106. UN General Assembly Resolution A/RES/42/143 (7 December 1987). UN General Assembly Resolution A/RES/56/161 (11 December 2001). UN Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, UN Doc. A/CONF.144/28/Rev.1 at 118 (1990). UN Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, UN Doc. A/CONF.144/28/Rev.1 at 189 (1990). UN Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, UN Doc. A/CONF.121/22/Rev.1 at 59 (1985). UN Code of Conduct for Law Enforcement Officials, GA Res 34/169, Annex, 34 UN GAOR Supp (No. 46) at 186, UN Doc. A/34/46 (1979).

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Angela Hegarty UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res 43/173, Annex, 43 UN GAOR Supp (No. 49) at 298, UN Doc. A/43/49 (1988). UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, ESC res. 1989/65, Annex, 1989 UN ESCOR Supp (No. 1) at 52, UN Doc. E/1989/89 (1989). UN United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), GA Res. 40/33, Annex, 40 UN GAOR Supp (No. 53) at 207, UN Doc. A/40/53 (1985). UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA 40/34, Annex, 40 UN GAOR Supp (No. 53) at 214, UN Doc. A/40/53 (1985).

B

Cases

In Re Treacy & McDonald (2000). (Northern Ireland H.Ct 2075), available at http://www. courtsni.gov.uk/en-gb/judicial+decisions/judgments/j_j_kerf3196.htm (24 November 2003)

Chapter 21 The Role of Human and Minority Rights in Complex Power-sharing Jennifer Jackson-Preece

I

Introduction

A fundamental concern for the well-being of the various individuals and communities who have been involved in or affected by ethnic conflict underscores all complex power-sharing agreements. At issue in such arrangements is the recognition and accommodation of distinct and potentially competing interests, entitlements, and beliefs. The obvious political objective is the restoration and preservation of peace, order, and good government within states, and, by extension, also stability between states. The central premise behind complex power-sharing is that ethnic groups who are recognized by and accommodated within the state are far less likely to challenge its authority or to threaten its territorial integrity. Recognition and accommodation may take different forms: legal or political. Legal guarantees are embodied in treaties, in constitutions, and in laws; political guarantees are embodied in the structure of the state, in political parties, and in electoral systems. In practice, of course, the two forms often overlap, and arguably function best when they are mutually reinforcing. For example, constitutional protection is dependent upon the judicial system, which is in turn embedded within the larger political structure of the state. Without a fair and impartial judiciary whose judgements are respected by political actors and institutions, constitutional provisions are worth little more than the paper they are written on. Nevertheless, there is a qualitative difference between legal and political provisions. Political provisions are disproportionately utilitarian and reflect changing calculations of interest and efficacy. In other words, they are reasonable subjects for negotiation and are usually intended to encourage a political culture of accommodation. In contrast, legal provisions are overwhelmingly deontological. They are designed to recognize fundamental normative entitlements and to deliberately put these beyond the reach of political compromise. Human and minority rights fall into the latter category. Curiously, the role of legal provisions – including human and minority rights – is often ignored, or at least downplayed, within the existing literature on ethnic Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 627-665

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conflict regulation (Sisk 1996: 66). Instead, both consociational and integrationist perspectives are disproportionately, if not exclusively, concerned with political provisions (e.g., proportional representation and consensus rules in executive, legislative, and administrative decision-making) and state structures (e.g., federal and electoral systems). The explanation for this gap is not immediately obvious. Legal practices, including human and minority rights, are increasingly identified as fundamental prerequisites for good governance by both state and non-state actors and feature prominently in complex power-sharing agreements. It may well be that this oversight is a consequence of a methodological predisposition towards social science positivism, which tends to avoid normative claims and categories to the detriment of empirical analysis in this area. This chapter aims to redress the balance somewhat by examining the implications of a rights-based response to ethnic conflict as disclosed in the various complex power-sharing agreements studied in this project. II

The Idea of Rights

A

Rights as Normative Entitlements

The rights discourse is an almost ubiquitous feature of contemporary politics. States, international and nongovernmental organizations, individuals, and groups all increasingly speak the language of rights. This tendency is apparent in the history of the self-determination disputes studied here: the ‘troubles’ in Northern Ireland are generally perceived to originate in the failure of a prior movement for civil rights symbolized by the human rights atrocity known as ‘Bloody Sunday’; the break-up of Yugoslavia and its political consequences are graphically revealed in the documentation of gross human and minority rights abuses catalogued by international and nongovernmental organizations; similar, albeit less sustained, reporting defines the self-determination disputes in Gagauzia, Transdniestria, South Ossetia, Abkhazia, Bougainville, and Mindanao in accordance with international standards of human and minority rights. In part, such developments are a consequence of the growing recognition of a variety of rights at both the domestic and the international level, but they are also much more than that. The salience of the rights discourse, and indeed the domestic and international standards it invokes, is an important reminder that politics is normative as well as instrumental. International agreements, state structures, public policies, and so forth entail moral issues – questions of good and bad, right and wrong (Jackson 2000: 38). To claim a right transforms what might initially be viewed as a mere expediency into a moral imperative: rights are normative entitlements. In other words, the power of the rights discourse originates in its normative content and corresponding moral authority. That is why the Bougainville Freedom Movement compiled two volumes on the human rights abuses committed against the people of Bougainville, and why the Mindanao National Liberation Front claim that the ethnic nationalities of Mindanao have been victims of ethnic cleansing, and why the South Ossetian leadership has accused the

21  The Role of Human and Minority Rights in Complex Power-sharing

Georgian government of discriminating against the non-Georgian population. Examples like these may be found in all the self-determination conflicts included in this project. B

Main Elements of Rights

Despite its widespread appeal, the idea of rights is far from obvious. Rather, there is often a great deal of confusion between the use of ‘right’ as an adjective (the description of proper conduct) versus the use of ‘right’ as a noun (something one has) (Vincent 1986: 8). The idea of a right as a normative entitlement is the ‘stock-in-trade’ of lawyers and thus is usually a feature of legal or quasi-legal (e.g., non-binding international resolutions and documents) provisions. A right in this sense consists of five main elements: • a right holder (the subject of the right) has, • a claim to some substance (the object of a right), • which he or she might assert, or demand, or enjoy, or enforce (exercising a right), • against some individual or group (the bearer of the correlative duty), • citing in support of his or her claim some particular ground (the justification of a right) (Vincent 1986: 8). For example, as an individual (the right holder), I may claim a right to property (the object of the right), which I assert in the form of ownership and exclusive enjoyment (the exercising of the right) against other potential property holders, be these individuals, companies, or indeed the state (the bearers of the correlative duty) on the grounds that I should be able to enjoy the proceeds of my own labour (the justification of the right). C

Classifying Rights

Although all rights possess these five main elements, they are far from identical. Accordingly, rights theorists have often found it expedient to classify rights according to their right holder (individual versus group), their substance (civil and political, economic and social, or cultural) and their correlative duty (positive or negative). 1 Right Holders: Individuals versus Groups Rights may be held either by individuals or by groups. Individual rights are designed to preserve and protect the autonomy of persons as individuals. Group rights are designed to preserve and protect the individual’s propensity for communal attachments and associations. Individual rights are held by individuals either as humans or as members of specific groups (e.g., citizens of a particular state or members of minority communities). The rights included in the Universal Declaration on Human Rights and the UN covenants are all individual rights, with the exception of the right to self-determination of peoples (Donnelly 2003: 21).

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This generalization holds true even for those minority rights that have been recognized in Article 27 of the International Covenant on Civil and Political Rights and in the Universal Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. Group rights are held by corporate entities. In international law, the classic group rights are the right of sovereignty held by states and the right of self-determination held by peoples. Within the academic literature on rights, there is currently a great deal of discussion about the relative merits of individual versus collective formulations, particularly as these would apply to sub-state groups and their members (Lyons and Mayall: 2003). This discussion may be theoretically interesting, but it often seems to ignore the practical purpose of human and minority rights guarantees. Both individual and group rights are necessary to give full legal recognition to the fact that we exist as social beings and not as atomistic individuals. It is precisely this aspect of human nature that gives rise to families, tribes, ethnicities, and states – and which creates those social circumstances in which conflicts of interest, entitlement, and belief may occur. Self-determination disputes generally contain elements of all three conflicts, which may explain their apparent intractability. Practically speaking, rights provide a moral framework in which to understand and respond to these conflicts; to recognize only one category of right holder risks ignoring a key element of the problem. The difficulty of balancing between rival claimants (individuals versus groups) remains a crucial issue. But in practice, there is a reasonably well-established hierarchy within the various standard-setting documents that is designed to do precisely this. Where conflicts of rights occur between individuals and groups, moral primacy is usually accorded to the individual as the ultimate source of collective legitimacy. In other words, the normative value assigned to groups is derivative of the more fundamental normative value vested in individuals. Accordingly, groups must respect the autonomy of their individual members, including those who freely choose to dissent from majority opinions or ways of life. This rationale is apparent in the complex power-sharing agreements, which in most cases specifically require those institutions of self-government that are representative of minority communities to abide by national or international individual rights guarantees. 2 Substance: Civil and Political, Economic and Social, or Cultural During the Cold War, there was intense debate about the relationship between, and indeed the relative priority of, distinct substantive entitlements. Civil and political rights were championed by Western liberal states. These rights include those guarantees associated with liberal democracy: the right to life, liberty, security of the person, privacy, and property; freedom of thought, conscience, and religion; freedom of assembly and association; the right to a fair trial; freedom from slavery, torture, and arbitrary arrest; and the right to free elections, universal suffrage, and participation in public affairs. Such provisions may be found in the Universal Declaration on Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and in various regional human rights instru-

21  The Role of Human and Minority Rights in Complex Power-sharing

ments, including the European Convention on Human Rights (1950), the American Convention on Human Rights (1969), and the African Charter on Human and People’s Rights (‘Banjul Charter’) (1981). Economic and social rights were championed by Soviet bloc states. These rights include those guarantees associated with socialism and the welfare state: the right to work and a living wage; the right to form and join trade unions; the right to adequate health care and housing; the right to education; the right to social security; and the right to paid holidays. Such provisions may be found in the International Covenant on Economic, Social and Cultural Rights (1966), various conventions sponsored by the International Labor Organization (ILO), and in regional instruments such as the European Social Charter (1961) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’) (1988). Cultural rights were and remain the rallying point for national or ethnic, religious or linguistic minorities, and indigenous peoples who are unable to form their own independent states for whatever reason(s). Cultural rights include those rights directed at the preservation of and participation in cultural communities. The substance of cultural rights may overlap with both civil and political rights and even economic and social rights. However, the correlative duties they create may be distinguished by the emphasis on policies and actions of specific relevance to culture and identity, especially (although not exclusively) regarding minorities and indigenous peoples. The most important provisions concerning cultural rights as these apply to minority groups may be found in Article 27 of the International Covenant on Civil and Political Rights, in the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1992), ILO Convention 169 Concerning Indigenous and Tribal Peoples (1989), and in regional instruments such as the Council of Europe (COE)’s Framework Convention for the Protection of National Minorities (1995), the European Charter for Regional or Minority Languages (1992), and the Copenhagen Document of the Organization for Security and Co-operation in Europe (OSCE) (1990). Today there is widespread agreement that all rights – whether civil and political, economic and social, or cultural – are indivisible, interdependent, and interrelated (Donnelly 2003: 22). Accordingly, provisions from each of these categories of rights may be found in a variety of combinations within the power-sharing agreements encountered in this project. Nevertheless, as will be discussed in greater detail later in the chapter, cultural rights would appear to be especially significant within power-sharing arrangements – presumably because such arrangements are by definition disproportionately concerned with ethno-cultural minority communities. 3 Correlative Duties: Positive or Negative Rights may also be distinguished by the kinds of correlative duties they create. Some rights create negative duties, which require restraint on the part of actors other than the right holder, as with freedom of speech or assembly. Other rights

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create positive duties, which require particular actions on the part of actors other than the right holder. In other words, they are designed to promote specific practices that benefit the right holder. For example, the right to education is usually exercised through access to educational institutions (schools, universities, etc.). Such institutions cannot be created or maintained by the right holder acting on their own; they require a collective effort and may necessitate state involvement (in funding, etc.). It is often claimed that negative duties tend to correspond with civil and political rights, and positive duties tend to correspond with economic, social, and cultural rights. In practice, however, this supposed relationship frequently breaks down. For example, as the various power-sharing agreements demonstrate, the (negative) right to life may in fact require positive policing measures; similarly, the (positive) right to housing may require a (negative) withdrawal of interference to permit the right holders to return to their homes. Thus, it is empirically more accurate to analyze each right/duty relationship within the particular context in which it arises. 4 Operationalizing Rights Because all rights imply duties, they are by definition embedded in social relationships. A right can only be claimed against someone other than the right holder; therefore an atomistic individual in principle cannot possess rights. For this reason, it has been suggested that Robinson Crusoe had no rights until he met Man Friday (Benn and Peters 1964: 111). This point may appear to be unnecessarily abstract, but in fact it has important practical implications: it reminds us that all rights operate through social interaction (Donnelly 2003: 21). In other words, in order to become actualized, rights require rules that are incorporated into everyday social and political life. For example, my right to property is meaningless unless the judicial and police systems are prepared to enforce it against other would-be claimants. This reality underscores the fundamental connection between legal guarantees and political practices. It also becomes the litmus test for compliance with human and minority rights obligations as defined in the complex power-sharing agreements and, indeed, elsewhere. III Rights and Complex Power-sharing A

Rights Response to Ethnic Conflict

A rights response to ethnic conflict will include legal and quasi-legal provisions that identify specific right holders and accord them substantive guarantees that address their particular circumstances. A series of corresponding duties will thus also be created and compliance procedures (judicial or political, domestic or international) may be identified to ensure these duties are fulfilled. Such provisions may be located at either the domestic or the international level, or a combination of the two. They may be found in different kinds of texts – constitutions, domestic legislation, power-sharing agreements, international treaties, and de-

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claratory statements. Thus, many of the power-sharing agreements incorporate explicit human and minority rights provisions while also referring to existing international standards (e.g., the Northern Ireland Peace Agreement, the Dayton Agreement, the Constitutional Framework for Provisional Self-Government in Kosovo, and the Bougainville Peace Agreement) or constitutional rights (e.g., the Framework Agreement for Macedonia, the Law on the Special Status of Gagauz, and the Mindanao Peace Agreement). This multi-level layering of human and minority rights affords further confirmation of the complexity of the power-sharing arrangements studied in this project. The different modes of establishing human and minority rights within the various power-sharing agreements reflect the distinction between complex consociation (Northern Ireland, Bosnia, and Macedonia) and complex autonomy (Bougainville, Mindanao, Moldova, and possibly Kosovo) as defined by Brendan O’Leary in his conceptual chapter (see Ch 3). In cases of complex consociation, both human and minority rights tend to function as forms of personal autonomy; the rights they recognize apply to all relevant individuals regardless of their geographic location within the state. For example, the cultural guarantees included in the 2001 Framework Agreement for Macedonia are incorporated as general amendments to the Constitution of Macedonia and thus apply equally to all citizens of Macedonia without distinction. In cases of complex territorial autonomy, while human rights remain personal – and are often associated with national constitutional provisions – minority rights are more likely to be a provision of the territorial autonomy arrangements. For example, the cultural guarantees included in the Mindanao Peace Agreement are specific to the agreement and so apply only within the Special Zone of Peace and Development (SZOPAD) created by it. Where consociations are combined with territorial autonomy (as in Northern Ireland and Bosnia and Herzegovina), different levels of rights are often recognized, such that universal forms of personal autonomy that apply throughout the state are supplemented by territorially limited guarantees within the autonomous areas. For example, the 1998 Northern Ireland Peace Agreement specifically affirms the cultural guarantees of the Framework Convention for National Minorities and the European Charter for Minority Languages, which are applicable throughout the United Kingdom. In addition, the Northern Ireland Agreement itself recognizes supplemental cultural guarantees specific to Northern Ireland and affirms the authority of the Northern Ireland Assembly to draft its own human rights legislation. As normative entitlements, all human and minority rights are intended to create a lasting series of rules and relationships. Once accepted, they are no longer legitimate subjects for political negotiation or compromise, and instead are deliberately placed beyond the usual reach of political actors. Generally speaking, rights may only be modified or derogated from in exceptional circumstances and according to stipulated procedures. In this sense, rights trump political interests. In both complex consociations and complex autonomies, the aim of a rightsbased response is to recognize those normative entitlements that are considered fundamental for the well-being of the various individuals and communities who have been involved in or affected by the self-determination dispute. Several cat-

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egories of would-be right holders can be discerned: individuals as humans, individuals as citizens, individuals as members of ethnic communities, the civic or state community, and the various ethnic communities within its jurisdiction. While distinct, these categories nevertheless overlap and so create a web of rights and obligations that crosscut civic and ethnic divisions. For example, an individual resident within the territory of the state may at one and the same time possess rights as a human, as a citizen or member of the state/civic community, and as a member of an ethnic community. As a result of these distinct categories of rights, the civic or state community, the various ethnic communities within its jurisdiction, and indeed the individuals resident within the state will all acquire duties towards one another (Table 1). Table 1 Overlapping and Cross-cutting Rights and Obligations Human Rights

Citizen- Rights Duties ship of Per- to HuRights sons mans Belonging to Ethnic Groups

Duties to Citizens

Duties to the State

Duties to Own Ethnic Group and its Members

X

X

X

X

X

X

Duties to Other Ethnic Groups and their Members X

X

X

X

X

X

X

X

X

X

Ethnic Group One

X

X

X

X

X

Ethnic Group Two

X

X

X

X

X

Member X Ethnic Group One Member X Ethnic Group Two Statei

i

X

The state or civic community and the ethnic communities within its jurisdiction are considered here to be distinct categories. Accordingly, all ethnic groups are by definition ‘other’ to the state.

This web of cross-cutting rights and obligations is especially important in cases of wide-ranging autonomy where individuals or minorities may perceive them-

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selves to be threatened by the newly empowered autonomous community. By recognizing a variety of right holders, the human and minority rights provisions aim to prevent autonomy from giving rise to ‘little tyrannies’. Individual rights protect individual freedom from unwarranted intervention by both the civic and ethnic communities as well as other individuals – thus providing an individual dissenter with recourse against the ethnic group to which he belongs as well as public authorities at both the national and sub-national level. Group rights for ethnic communities protect cultural identities from unwarranted intervention by both civic and other ethnic communities and their individual members – thus providing any minorities that might exist within the autonomous area with recourse against the dominant ethnic group there, and also against the autonomous governmental authority itself. The 2001 Constitutional Framework for Provisional Self-Government in Kosovo provides a useful example of how cross-cutting rights and obligations function within circumstances of wide-ranging autonomy. This agreement recognizes Kosovo as an “undivided territory” under “interim international administration” and provides for institutions of self-government at both the local or municipal and Kosovo or regional level. Human rights and fundamental freedoms are granted to all persons in Kosovo without discrimination on any ground (Art 3.1). Ethnic communities and their members are granted a wide range of cultural guarantees (including provisions for language, religion, and education) that are designed to preserve and promote their distinct identities (Art 4.4). At the same time, the provisional institutions of self-government are required to ensure both human rights and fundamental freedoms (Art 3.2) and the rights of communities and their members (Art 4.5). Substantively, a web of overlapping and cross-cutting rights and obligations may be the most important conflict-regulating outcome of human and minority rights provisions. Analytically, it may also represent an important distinction between the complex power-sharing approach and both the consociational and the integrationist perspectives. Whereas consociational strategies are designed to produce separation and integrationist strategies are designed to produce inclusion, a rights strategy that recognizes human, citizen, and minority right holders – which is typical of the complex power-sharing agreements included in this study – does both. B

‘Minorities by Force’ and ‘Minorities by Will’

A rights response to ethnic conflict ought properly to begin with a careful consideration of the particular circumstances of the communities involved in the self-determination dispute. Without such an understanding, a rights response may create inappropriate normative entitlements and thus produce ineffective or even counter-productive results. Since, for the most part, such conflicts involve an identifiable majority and an identifiable minority, the normative relationship between these groups is particularly significant. Such an understanding is of course complicated by the fact that minority/majority relations may shift accord-

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ing to their territorial context. So, for example, the relationship between Serbia and Kosovo (Serbian majority versus Albanian Kosovo minority) is normatively distinct from the relationship within Kosovo (Kosovo Albanian majority versus Serbian and Roma minorities). Thus, in all cases, relationships must be carefully contextualized. The normative relationship between a minority and a majority may take different forms, the precise content of which will change according to the particularities of each case. Nevertheless, we can usefully distinguish between two contrasting types of relationships: “minorities by force” and “minorities by will” (Laponce 1960: 12-13; Jackson-Preece 1998: 24-29). ‘Minorities by force’ want to be integrated into the larger society, but are prevented from doing so by the dominant group. In such cases, a distinct normative status is primarily a result of majority hostility; such minorities do not want to be treated differently, instead they want to be treated equally. The African-American or Black minority in the southern United States prior to the 1960s is a classic example of a ‘minority by force’, and accordingly their struggle was for civil rights equal to those of other (white) Americans. In contrast, ‘minorities by will’ want recognition as a distinct group either within or apart from their present state. In such cases, a distinct normative status is subjectively desired by the minority rather than objectively imposed by the majority. The Quebecois minority within Canada is a classic example of a ‘minority by will’; their ongoing struggle is to become masters of their own political life (‘maitre chez nous’), defined in terms of either a special status within the Canadian federation or outright political independence from Canada. The problems experienced by these two types of minorities are qualitatively different and consequently so is the rights response required to address them. ‘Minorities by force’ tend to suffer from unsolicited efforts by the majority to perpetuate their separation within the larger society. The appropriate rights response to a ‘minority by force’ is equal rights (economic and social, as well as civil and political) and non-discrimination guarantees. In contrast, ‘minorities by will’ tend to suffer from unsolicited majority efforts to deny or erode their distinctiveness. The appropriate response to a ‘minority by will’ is special guarantees overand-above the usual equal rights of citizens that are intended to preserve and promote their distinct identity and culture. It would be wholly inappropriate to respond to a ‘minority by force’ with provisions designed to perpetuate minority distinctions, since it is unsolicited separation and discrimination by the majority that such minorities seek to overcome. By the same token, it would be similarly inappropriate to assume that ‘minorities by will’ require only equal rights and protection against discrimination, as such policies do not address their desire for recognition as a distinct community. In sum, to be effective a rights response must recognize and respond to the circumstances of minorities in a way that is sympathetic to their subjective needs and aspirations. These points may appear obvious, yet for many years international practice has not distinguished between the normative circumstances of ‘minorities by force’ and ‘minorities by will’. During the Cold War, international actors deliberately

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ignored ‘minority by will’ claims for special rights over-and-above those of equal citizenship and non-discrimination because it was feared that such guarantees might become pretexts for secessionist demands. Accordingly, most of the leading international rights texts adopted during this period gave considerable emphasis to equal rights and anti-discrimination provisions but said little or nothing about the special rights ‘minorities by will’ assert are necessary to preserve and promote their distinct identities and ways of life. Article 27 of the International Covenant on Civil and Political Rights is a notable exception to this generalization, but it nevertheless gives state signatories the freedom to determine whether or not ethnic groups in their jurisdictions constitute minorities. Predictably enough, many states that possess minorities, particularly the more contentious ‘minorities by will’, have effectively avoided their political obligations by redefining these groups under another rubric, be it ‘immigrant’, ‘migrant’, or whatever. The complex power-sharing agreements analyzed in this project address ‘minority by will’ circumstances. The ethnic groups identified in these agreements want to preserve their distinct identities and cultures, and the power-sharing arrangements are an attempt to provide the legal and political recognition that will allow them to do precisely that. Accordingly, the substantive rights content of these agreements tends to be disproportionately concerned with issues relating to the preservation of minority cultural distinctiveness. This tendency is in keeping with international developments since 1989, which have placed a much greater emphasis on cultural rights. It does not imply, however, that civil and political or economic and social rights are irrelevant to complex power-sharing. Far from it, as these rights are generally considered crucial both for the preservation of the existing civic or state community and for the protection of dissident or non-conformist members of minority communities they also appear in most of the power-sharing agreements. Finally, in those cases where the self-determination dispute has resulted in refugees or displaced persons, the right of return and other normative entitlements relevant to such individuals are also addressed. C

Cultural Rights

Cultural rights are central to minority rights provisions because they are intended to create circumstances that will permit the survival and development of distinct ethnic communities within states. The basic statement of this principle is contained in Article 27 of the International Covenant on Civil and Political Rights, which stipulates that: [I]n those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities supplements these basic provisions with additional

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rights to participate in relevant national and regional decisions, to establish and maintain associations, and to have contact both within and across international frontiers. It also recognizes specific state measures designed to give effect to these various normative entitlements: states are required to protect the existence of minorities within their territories and to encourage conditions for the promotion of their distinct identities through policies aimed at improving minority language rights, increasing minority participation in the governmental process, and creating a greater public awareness for the minority’s history, culture, and aspirations. Such provisions constitute a global standard of minority entitlements. In their domestic practice, states may improve upon this minimum international standard, but they should not go beneath it. Taken together, the substantive content of the various complex power-sharing agreements is very much in keeping with recent international developments in the area of minority rights. Emphasis is clearly placed upon the legitimate interest of minorities to preserve and develop their distinct national, ethnic, linguistic, or religious identities and cultures within their existing states. Provisions for language rights, improved minority participation in the decision-making process, and a greater recognition and respect for minority cultures and traditions as per the United Nations recommendations for state policy feature prominently. At the same time, the complex power-sharing agreements also contain innovative formulations designed to protect minority cultural and historic sites, recognize traditional legal practices and provide a more flexible response to self-determination claims than has hitherto been the norm in international law and practice. 1 Identity The recognition of minority identity is usually a fundamental demand of ‘minority by will’ communities. Thus, the preamble of the Law on the Special Legal Status of Gagauz identifies the “aim of satisfying the national needs and preserving the identity of the Gagauzes”. Similarly, Article 4(a) of the Bougainville Peace Agreement defines the “objectives of autonomy” to include the “expression and development of the Bougainville identity.” Statements like these may be found in every one of the substantive complex power-sharing agreements included in this project. The Constitutional Framework for Provisional Self-Government in Kosovo, the Framework Agreement for Macedonia, and the Mindanao Final Agreement also include specific provisions for the development of identity. For example, Article 48(3) of the Constitution of Macedonia, pursuant to the constitutional amendments stipulated in the Framework Agreement, declares that “members of communities have the right to establish institutions for culture, art, 

I have been unable to locate any power-sharing agreement for Abkhazia. An OSCEled meeting to discuss power-sharing in Abkhazia took place in September 2001, but did not result in an agreement. Human and minority rights provisions are not included in the 1996 South Ossetia Memorandum or the Transdniestria Memorandum. However, these documents are arguably better understood as preliminary peace agreements rather than full power-sharing agreements.

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science and education, as well as for scholarly and other associations for the expression, fostering and development of their identity.” Article 7.1 of the Framework Agreement further extends this general guarantee, such that “local authorities will be free to place on front of local public buildings emblems marking the identity of the community.” 2 Language Language rights are increasingly recognized within international organizations as crucial for the protection of minorities. For example, in Europe, a dedicated Charter for Regional or Minority Languages has been developed under the auspices of the Council of Europe. In keeping with this trend, language provisions may be found in the Northern Ireland Peace Agreement, the Constitutional Framework for Provisional Self-Government in Kosovo, the Framework Agreement for Macedonia, the Law on the Special Legal Status of Gagauz, and the Mindanao Final Agreement. Such provisions may take the form of language rights assigned to the minority or of language requirements assigned to the state. For example, Article 4.4 of the Constitutional Framework for Provisional Self-Government in Kosovo grants “communities and their members” the right to “use their language and alphabets freely, including before the courts, agencies and other bodies in Kosovo,” “receive education in their own language,” and “enjoy access to information in their own language.” In contrast, Article 4 of the chapter on Economic, Social and Cultural Rights in the Northern Ireland Peace Agreement does not recognize right holders as such, but instead requires the British government to take “resolute action to promote the [Irish] language” by encouraging the “use of the language in public and in private life,” removing restrictions that would “discourage or work against the maintenance or development of the language,” making provisions for “liasing with the Irish language community,” placing a statutory duty on the Department of Education to “facilitate Irish medium education,” explore the scope for achieving more widespread availability of Irish language broadcasting; and provide financial support for Irish language film and television production. 3 Religion Religion, like language, is another defining feature for many minority groups. Accordingly, guarantees for religious minorities within states have featured prominently in international treaties for many centuries, far predating the emergence of a universal rights discourse. The rights of minority religions and their members are recognized in several of the complex power-sharing agreements. As one might expect, these all involve conflicts in which religion is a key characteristic distinguishing the minority from the majority. For example, the Mindanao Final Agreement stipulates that “Muslim culture, mores, customs and traditions … shall be preserved through the regular and special schools in the Autonomous Region” and provides government funding for traditional madrasah schools. Likewise, Article 19(4) of the Constitution of Macedonia, pursuant to the constitutional amendments stipulated in the Framework Agreement, gives the “Islamic

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Religious Community in Macedonia, the Catholic Church, and other Religious Communities and groups” the freedom to “establish schools and other social and charitable institutions.” Finally, Article 4.4 of the Constitutional Framework for Provisional Self-Government in Kosovo recognizes the right of “all communities and their members” to “operate religious institutions” and “preserve religious sites.” It is something of a curiosity that neither the Dayton Peace Agreement nor the Northern Ireland Peace Agreement contains explicit provisions for minority religions – although both do provide general individual guarantees for freedom of religion or belief. 4 Traditional Law and Custom The recognition of traditional law and custom is an interesting feature of the Mindanao Final Agreement, the Bougainville Peace Agreement, and the Interim Agreement for Peace and Self-Government in Kosovo (which preceded the Constitutional Framework for the Provision of Self-Government). The Mindanao Final Agreement provides for an Islamic Banking Unit within the Philippines Central Bank to be staffed by qualified Islamic banking experts (Ch D). It also empowers the regional legislative assembly to establish Shari’a Courts (Ch E). The Bougainville Peace Agreement incorporates provisions for the integration of traditional law and custom into the judicial system. Article 129(a) recognizes the “aspirations of the Bougainvilleans for the integration of custom and introduced law.” Article 128 establishes a: [c]ommission to examine and report on the issues that would be involved in giving the autonomous Bougainville Government power to make laws permitting courts or Councils of Elders to require clan-groups to which persons convicted of criminal offences belong to meet customary, non-custodial obligations.

Article VII(4) of the Interim Agreement for Kosovo gives “national communities acting through their democratically elected institutions” the right to “protect national traditions on family law” by “establishing their own rules with respect to inheritance, family and matrimonial relations, tutorship and adoption.” Requirements of this kind are not included in either Article 27 of the International Covenant on Civil and Political Rights or the UN Declaration on the Rights of Persons Belonging to Minorities. However, Article 8 of ILO Convention 169 on Indigenous and Tribal Populations requires states to take indigenous and tribal custom and customary law into account when applying national laws and regulations to the peoples concerned. In the Bougainville case, the similarity with Convention 169 may be more than coincidental, since the Bougainville Freedom Movement appears to identify itself with the global indigenous peoples movement. 5 Cultural and Historic Sites The protection of minority cultural and historic sites is a distinctive characteristic of the Dayton Peace Agreement, the Constitutional Framework for Provision of Self-Government in Kosovo, and the Framework Agreement for Macedonia. An-

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nex 8 of the Dayton Peace Agreement is explicitly dedicated to the protection of national monuments of this kind. Article 4.4 of the Constitutional Framework for Provision of Self-Government in Kosovo grants communities and their members the right to “preserve sites of religious, historical or cultural importance of the Community.” Similarly, Article 56(2) of the Constitution of Macedonia pursuant to the constitutional amendments stipulated in the Framework Agreement guarantees the “protection, promotion and enhancement of the historical and artistic heritage of Macedonia and all communities in Macedonia and the treasures of which it is composed, regardless of their legal status.” The destruction of cultural and historic sites was a salient feature of the ethnic cleansing experienced in the former Yugoslavia, which may explain why the explicit protection of such sites is thus far unique to this region. 6 Self-determination All the cultural rights discussed thus far are compatible with the sovereignty and territorial integrity of existing states. That is hardly surprising given that the central premise behind recent international activity in this area is that minorities who are recognized and supported by the state are far less likely to challenge its authority or threaten its territorial integrity. International efforts to protect minorities aim to prevent ethnic conflict by encouraging domestic circumstances in which the language, culture, religion, and way of life of all ethno-cultural communities can be preserved and promoted within existing borders; they are not intended to further minority claims for self-determination. Indeed, the leading international statements on minority rights, including the UN Declaration on the Rights of Persons Belonging to National Minorities, the Council of Europe Framework Convention for the Protection of National Minorities, and the Organization for Security and Co-operation in Europe’s Copenhagen Document all specifically affirm the sovereignty, territorial integrity, and political independence of existing states. This practice is also apparent in several of the complex power-sharing agreements, which confirm the right of sovereignty held by existing states, presumably with a view to precluding putative claims to self-determination in the form of outright political independence. Such is the case with respect to Bosnia and the Dayton Peace Agreement, Serbia-Montenegro and the Constitutional Framework for Provision of Self-Government in Kosovo, Macedonia and the Framework Agreement, and the Philippines and the Mindanao Final Agreement. It is therefore rather remarkable that three of the agreements specifically recognize a minority right to self-determination understood as secession, albeit only under specified circumstances. Article 1(4) of the Law on the Special Legal Status of Gagauzia affirms that in the event of a change of status of the Republic of Moldova, the “people of Gagauz shall have the right of external self-determination.” Similarly, Article 1(i) of the Chapter on Constitutional Issues in the Northern Ireland Peace Agreement recognizes the “legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its (political) status.” Article 1(ii) further adds that “it is for the people of the island of

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Ireland alone … to exercise their right of self-determination on the basis of consent.” Even more explicitly, Article 2 of the introduction to the Bougainville Peace Agreement provides for the “right … for a referendum among Bougainvilleans on Bougainville’s future political status,” including “separate independence for Bougainville.” These statements represent a considerable departure from previous international practice in the area of minority rights and self-determination. Since 1945, international law and practice have generally interpreted self-determination as a right to form separate states. As a result, in order to preclude widespread claims for secession, the right to self-determination has been limited to a very narrow range of right holders: (1) mandated territories, trust territories, and other territories considered to be self-governing according to Chapter XI of the UN Charter (most recently Palau in 1994, which was the last remaining United Nations trust territory); (2) distinct jurisdictions subject to carence de souveraineté (e.g., Bangladesh); (3) territories in which self-determination is agreed through democratic negotiation or plebiscite (e.g., Slovakia and the Czech Republic); (4) highest level constituent units of a federal state in the process of dissolution or break-up according to the principle of uti posseditis iuris (e.g., Slovenia, Croatia, Bosnia and Herzegovina, Macedonia, and Serbia-Montenegro); (5) and formerly independent entities reasserting their independence with at least the tacit consent of the established state in which incorporation was either illegal or of questionable legality (e.g., Latvia, Lithuania, and Estonia) (Kingsbury 1992: 487). Accordingly, provisions for self-determination in the form of independent statehood are not ordinarily included in minority rights agreements and instead are much more likely to be explicitly denied. For similar reasons, collective minority right holders are not usually recognized. Instead, minority provisions tend to be formulated in terms of individual right holders, who may exercise their rights in community with other members. Recently, however, it has been suggested that new developments directed at national minorities and indigenous peoples may be modifying the substance of self-determination to include internal arrangements for autonomy or self-government that fall short of separate statehood. For example, Section IV(35) of the Copenhagen Document contains a recommendation for “appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of … minorities.” The draft national minorities protocol to the European Convention on Human Rights as proposed by the Parliamentary Assembly of the Council of Europe in 1993 would have gone much further in recognizing a minority right to appropriate local or autonomous authorities or a special status matching their specific historical and territorial situation. Such substantive measures would in effect expand the category of self-determination right holders to accommodate sub-state groups and their claims for recognition. It should by now be evident that the provision of internal autonomy for substate groups is a primary objective of complex power-sharing. Thus, the practice of complex power-sharing would seem to substantiate the emergence of a collective right to internal self-determination for ‘minorities by will’. The recognition of collective right holders is another defining feature of the complex power-sharing

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agreements, which adds further credence to this point of view. A quick glance at the substantive provisions for identity, language, and religion confirms this. Notice the references to “the people of Northern Ireland,” “national communities” in Kosovo, “entities” in Bosnia, “the Gagauz People” in Moldova, “Bougainvilleans,” “the Bangsamoro People” in Mindanao, and so forth. Moreover, many of the rights are formulated in terms of “communities” or “communities and their members” rather than the usual “individuals … in community with other members” phraseology commonly employed by the United Nations, the Council of Europe, and the Organization for Security and Co-operation in Europe. In sum, the cultural rights provisions of the complex power-sharing agreements are fundamentally concerned with the recognition of groups per se and their collective normative entitlements, as well as those of their individual members. Arguably the justification for these cultural rights is an understanding of self-determination, defined both as an internal as well as an external practice. In this respect, complex power-sharing is a novel response to self-determination disputes precisely because it recognizes rather than denies the self-determination claims of sub-state groups while still preserving the principle of territorial integrity upon which the post-1945 international order has been constructed. These developments would seem to offer a new perspective on the traditional understanding of the relationship between sovereignty, self-determination, and democracy. John Stuart Mill famously remarked in his 1861 treatise On Representative Government that “free institutions are next to impossible in a country made up of different nationalities” (Mill 1865: 392-393). For more than a century, that presumption has mitigated against the recognition of ‘minority by will’ claims for a distinct normative status appropriate to their cultural circumstances and political aspirations. Should the practice of complex power-sharing prove successful, Mill’s argument may no longer be so persuasive. D

Civil and Political Rights

Civil and political guarantees are usually associated with the ideal of equal citizenship in a democratic system of government. Insofar as divided societies are concerned, such provisions are intended to counter Mill’s claim about the viability of democratic institutions by fostering a common civic identity amongst the population of the state, regardless of any ethnic or cultural differences that may exist. Civil and political rights therefore define the normative relationship between the state and the individual in terms of citizenship or residency rather than membership of a particular ethnic community. Unfortunately, for these reasons, a crude interpretation of civil and political liberties has often become the pretext for assimilationist policies designed to reduce, deny, or erode the cultural distinctiveness of ‘minorities by will’ – which is precisely why such groups usually seek additional cultural guarantees. Despite these abuses, civil and political rights are nevertheless intended to constrain the power of the state and ensure that its institutions and officials are limited and accountable rather than oppressive and dictatorial. This objective is beneficial for all members of society regardless of their

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ethnic attachments. At the same time, because civil and political liberties create reciprocal rights and duties between all the individuals within the state, they also afford important protection to dissident members of ethnic groups. Just as the state must respect the liberty of individuals, so too must associated individuals, including ethnic communities. Complex power-sharing is arguably intended to transform autonomous minorities into cooperative minorities, consequently civil and political rights are incorporated into all the substantive agreements. This incorporation, however, may take different forms. The Northern Ireland Peace Agreement and the Dayton Peace Agreement include specific provisions for civil and political liberties, as well as specific references to relevant international human rights texts such as the European Convention on Human Rights and the Framework Convention on National Minorities. The Transdniestria Memorandum and the Bougainville Peace Agreement include general references to both international human rights standards and domestic constitutions, but no specific statements of civil and political rights per se. The Framework Agreement for Macedonia, the Law on the Special Legal Status of Gagauzia, and the Mindanao Final Agreement only include general references to domestic constitutions. Whether or not these different forms of incorporation have any effect upon the relative success or failure of democratic government is worthy of further consideration. E

Economic and Social Rights

Economic and social rights are usually associated with the ideals of equality of opportunity and basic human needs. As with civil and political rights, these provisions are also intended to preserve and promote an overarching civic or state community, but their normative focus is directed at economic rather than political relationships. In other words, they are designed to ensure that all citizens or residents of the state have equal access to economic opportunities and social welfare benefits. While economic and social rights do feature in all of the substantive power-sharing agreements, only the principle of non-discrimination is universally affirmed – perhaps because the allegation of discrimination on the part of the dominant or majority group is often a significant ‘minority by will’ grievance, even if it does not define their normative circumstances. Needless to say, the resolution of self-determination disputes is not facilitated by the existence, real or imagined, of social and economic inequalities. These considerations make provisions for non-discrimination an essential ingredient of complex power-sharing. In other respects, however, there is tremendous variety in both the scope and content of economic and social rights across the cases. One of the striking features of this variation – and perhaps also its explanation – is the extent to which economic and social provisions reflect considerations specific to the self-determination disputes. For example, in the Northern Ireland Peace Agreement, the right to “freely choose one’s place of residence” and to be “free from sectarian harassment” is recognized (Art 1 of the chapter on Rights, Safeguards and Equality of Opportunity). These provisions are arguably a direct

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response to the experience of segregated Protestant and Catholic residential areas, which is a feature of the sectarian conflict. Similarly, Article 2(ii) of the chapter on Economic, Social and Cultural issues requires the British government to “review the national security aspects of the present fair employment legislation at the earliest possible time” – the salient point here being that “national security” has been viewed as a pretext for Protestant discrimination against Catholics. Other examples of case-specific economic and social provisions may be found in the Mindanao Final Agreement and the Bougainville Peace Agreement. Since claims to economic exploitation featured in both disputes, each of these agreements includes special provisions intended to address this perceived inequality. In the Mindanao Final Agreement, special attention is given to the problem of economic under-development within the autonomous zone and to equal opportunities for its inhabitants within the Philippines national police and the civil service. In the Bougainville Peace Agreement, the right of autonomy for Bougainville includes the “power to decide on foreign investment applications for Bougainville” (Art 53). This provision is arguably a direct response to allegations of “plundering” and “unfair distribution” of wealth and opportunities associated with mining activities by international companies like Rio Tinto Zinc Ltd. – which was a significant causal factor behind the Bougainville independence movement (Regan 2003: 6-7). F

Refugees and Displaced Persons

A further category of rights aimed at refugees and displaced persons is also included in those complex power-sharing agreements that address cases in which extensive population displacement occurred as a result of ethnic conflict: Bosnia, Kosovo, and Macedonia. Refugees and displaced persons are in such situations the logical consequence of a prior failure to respect the rights of minority groups such that their continued existence within their traditional territories is no longer possible. Moreover, that failure is threefold: a failure to respect their equal rights as citizens; a failure to respect their special rights as minorities; and a failure to respect their universal human rights. Since the end of the Second World War, international law and practice has developed a series of normative entitlements designed to address the distinctive circumstances of refugees. Refugees thus possess the right not to be refused admission by states unless such refusal is dictated by national security or public order (sometimes referred to as the principle of non-refoulement); the right of asylum (subject to the domestic procedures of the state concerned); and the right of international protection by the Office of the United Nations High Commissioner for Refugees. In practice, however, the number of potential right holders is limited by the internationally accepted definition of a refugee. According to the Geneva Convention on Refugees (1951) and its additional protocol (1967), a refugee is someone who:

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This definition excludes those individuals who have been displaced for bona fide reasons of fear within the boundaries of their state, but have not crossed an international frontier. Thus, under the current international system, internally displaced populations have far fewer normative entitlements than internationally displaced populations. This normative inequality is justified according to realist criteria – displaced populations who cross international frontiers are considered to be greater threats to international peace and stability than those who remain within. Needless to say, such a distinction is highly questionable in terms of human and minority rights criteria. Indeed, populations that remain within states characterized by ethnic conflict may be much more likely to have these rights infringed than those who leave. Recently, realist and humanitarian priorities have combined to focus much greater attention on the issues of prevention and solution of refugee crises in those states where they exist or are deemed likely to arise (for instance, because of a prior history of ethnic conflict). Ultimately, the problem of refugees can only be overcome by eliminating the circumstances that create refugees in the first place, in other words, by ensuring domestic practices of good governance and compliance with international standards on human and minority rights. This conclusion immediately brings us back to the role of complex power-sharing as a way of resolving self-determination disputes and in so doing both solving and preventing refugee crises. Within all those complex power-sharing agreements that address refugee problems, the right of return features prominently. However, the number of possible right holders has the potential for significant variation as is seen between the Dayton Peace Agreement and the Constitutional Framework for Provision of Self-Government in Kosovo, on the one hand, and the Final Agreement for Macedonia, on the other. Whereas the former recognize “all persons” (Bosnia) or “all refugees and displaced persons” (Kosovo), the Final Agreement for Macedonia restricts this right to “citizens and legal residences of Macedonia.” Presumably this more-qualified interpretation is designed to prevent claims of asylum (from Kosovar Albanians) being misrepresented as claims of return. Nevertheless, it opens up the possibility that the laws of citizenship and residence may be manipulated or contrived by the Macedonian authorities in order to obstruct the otherwise legitimate return of individuals they consider undesirable. Supplemental to the general right of return, other provisions are also recognized with a view to giving practical effect to this basic provision. Such provisions are most numerous in the Dayton Peace Agreement, which dedicates Annex 7 to refugees and displaced persons. This annex not only guarantees refugees the

21  The Role of Human and Minority Rights in Complex Power-sharing

right “freely to return to their homes of origin” but also the “right to have restored to them the property of which they were deprived since 1991” (Art I(1)), the ability to “return in safety” “without risk of harassment, intimidation, persecution or discrimination” (Art I(2)), immediate access to international humanitarian organizations and monitors (Art I(3)), and their choice of destination (Art I(4)). At the same time, the Dayton Peace Agreement also outlines the responsibilities of the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska towards returning refugees and displaced persons. These responsibilities include the repeal of discriminatory legislation and administrative practices, the prevention and prompt suppression of incitement against returning refugees and displaced persons, and the prosecution, dismissal, or transfer of public officials responsible for serious violations of these rights and the rights of persons belonging to ethnic or minority groups (Art I(3)). Similar, albeit less elaborate, requirements for government action are also contained in Article 3.4 of the Constitutional Framework for Provision of Self-Government in Kosovo and in Article 3 of Annex C to the Framework Agreement for Macedonia. G

Special Provisions

It is worth noting that some of the power-sharing agreements contain special rights provisions directly associated with the conflict resolution process. For example, Article 12 of the Chapter on Rights, Safeguards and Equality of Opportunity in the Northern Ireland Peace Agreement recognizes that “victims of violence” related to the self-determination conflict have the “right to remember as well as to contribute to a changed society.” Article 13 goes on to affirm the importance of the reconciliation process to the “promotion of a culture of tolerance” conducive to the respect for human and minority rights. Similarly, rights of amnesty and pardon for those directly involved in the self-determination disputes are incorporated into both the Bougainville Peace Agreement and the Interim Agreement for Peace and Self-Government in Kosovo (which preceded the Constitutional Framework for the Provision of Self-Government). Article 331 of the Bougainville Peace Agreement grants a general amnesty and pardon (as agreed in the previous Lincoln Agreement) “for all persons involved in conflict-related activities” or “convicted of offences arising out of conflict-related activities.” A comparable provision may be found in Article II(10) of the Interim Agreement on Kosovo, which grants a right of release to all “persons held in connection with the conflict” as well as all “abducted persons or other persons held without charge.” H

Enforcement Measures

The recognition of human and minority rights standards is, of course, only the first step in implementing a rights response to ethnic conflict. In order to be effective as an instrument of conflict prevention, these rules must be incorporated

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into everyday social and political life. For that to happen, three essential conditions need to be satisfied: 1) right holders must have some means of making complaints against alleged infractions; 2) specific institutions must exist to receive and investigate complaints, and make and enforce authoritative judgements on their merits; and 3) the courts, agencies, governmental institutions, and other public institutions must be prepared to comply with these standards and any judgements relating to them. It is, however, important to stress that while these conditions may be necessary for the effectiveness of human and minority rights, they are not sufficient to guarantee full compliance with these norms. This point will be discussed more fully in the Assessing Compliance section. All of the substantive complex power-sharing agreements included in this project contain provisions that are designed to ensure compliance on these basic points. In each case, the judicial system is recognized as having competence to address issues arising from the agreements, including allegations of non-compliance with human and minority rights on the part of public authorities. In order to ensure that these judicial mechanisms will be fair and impartial towards all individuals and communities, the agreements regarding Bosnia, Kosovo, Macedonia, and Mindanao incorporate requirements for minority representation on the national courts of final appeal. In addition, several of the power-sharing agreements create dedicated instruments for the enforcement of human and minority rights. For example, both the Constitutional Framework for Provision of Self-Government in Kosovo and the Framework Agreement for Macedonia provide for an ombudsperson to receive and investigate complaints against public bodies, monitor, and take preventative action. Thus, “natural and legal persons in Kosovo” have the right to make complaints to the ombudsperson concerning “human rights violations or actions constituting abuse of authority by any public authority in Kosovo” (Ch 10.1). The Kosovo ombudsperson is expected to “give particular priority” to allegations of “especially severe or systematic violations,” discrimination including “discrimination against communities and their members,” and “allegations of violations of rights of communities and their members” (Ch 10.3). Similarly, Article 77 of the Constitution of Macedonia, pursuant to the constitutional amendments stipulated in the Framework Agreement, creates a public attorney (somewhat confusingly referred to as an “ombudsperson” in the Framework Agreement) to protect the constitutional and legal rights of citizens and, in particular, to safeguard the principles of non-discrimination and equitable representation of communities. Similarly, both the Dayton Peace Agreement for Bosnia and the Northern Ireland Peace Agreement create human rights commissions to perform a role of investigation and monitoring. In Bosnia, this includes both an ombudsperson (to be appointed by the OSCE in consultation with the various domestic entities) as well as a Human Rights Chamber (with a set proportion of members appointed

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by each of the entities and the Committee of Ministers of the Council of Europe). In this arrangement, the ombudsperson has an investigatory and monitoring role, while the Human Rights Chamber provides authoritative judgements. The Northern Ireland Human Rights Commission can also investigate, monitor and advise on infringements, and may bring proceedings to UK courts or provide assistance to individuals doing so. The Kosovo, Macedonia, and Northern Ireland agreements also provide for consultative bodies with a remit that includes responsibility for human and minority rights. In Kosovo, the Committee on Rights and Interests of Communities within the Kosovo Assembly is intended to comment on proposed laws with a view to ensuring that “community rights and interests are adequately addressed” and may also propose legislation of its own with a view to addressing the “concerns of communities” (Art 9.1.14). In Macedonia, the Committee on Inter-Community Relations within the Macedonian Assembly has a similar function. It is intended to resolve disputes regarding the representation of communities and their interests. In a slightly different approach, Article 10 of the Chapter on New Institutes in the Northern Ireland Peace Agreement “envisages” the creation of a Joint Committee of representatives of “the two Human Rights Commissions, North and South” as a “forum for consideration of human rights issues in the island of Ireland.” All the enforcement measures thus far discussed are located within the domestic governmental structure of the states concerned. However, some complex power-sharing agreements also incorporate – either directly or by implication – international instruments. The Northern Ireland and Bosnian agreements make specific reference to the enforcement provisions of the European Convention on Human Rights. Likewise, the Kosovo and Macedonian agreements acknowledge the importance of OSCE monitoring instruments. Moreover, by implication, all of the signatories to the European Convention on Human Rights, the Framework Convention on National Minorities, and the European Charter on Regional or Minority Languages are subject to the enforcement instruments included in these international standard-setting documents. For the ECHR, this enforcement involves the Court of Human Rights at Strasbourg, for the Convention and Charter it includes a combination of state self-reporting and international monitoring. Similarly, all members of the OSCE are subject to the monitoring activities of the High Commissioner on National Minorities and the Office for Democratic Institutions and Human Rights. The location of international human and minority rights and enforcement mechanisms applicable to each self-determination dispute is summarized in the appendix. I

Assessing Compliance

Assessing the relative compliance of specific cases with human and minority rights as outlined in the relevant standard-setting agreements is not an easy task. The quantity and quality of empirical evidence varies enormously from one selfdetermination dispute to another. At one extreme, there is no specific human

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and minority rights information on Transdniestria and Bougainville; at the other extreme, the documentation on Bosnia is so immense as to be approaching information overload. These unavoidable evidentiary constraints are compounded by the need to compare a variety of sources (internal versus external, governmental versus nongovernmental) in order to obtain a balanced perspective. Nevertheless, based on the available evidence, it is possible to construct a taxonomy of compliance (Table 2). A summary of the compliance indicators used to make this assessment is included in the appendix. Table 2 State Compliance with Human and Minority Rights Full compliance

Formal but not Partial complifully substan- ance tive N. Ireland Bosnia Macedonia Gagauzia

Non-compliance Kosovo Mindanao

Insufficient information for assessment Transdniestria Bougainville

1 Full Compliance Full compliance denotes circumstances in which human and minority rights standards are incorporated into everyday social and political life (e.g., Canada, Finland, Denmark, Sweden, etc.). Full compliance would include the following: • International and domestic, governmental and nongovernmental indicators confirm that all courts, agencies, governmental institutions, and other public institutions fully conform to these standards and any judgements relating to them. • Legislation and public policies are consistently formulated with reference to human and minority rights norms. • Remedial action recommended by the courts or other advisory bodies is quickly and effectively implemented. It is perhaps only to be expected that none of the self-determination disputes included in this study are currently examples of full compliance as in all cases the power-sharing arrangements are of relatively recent origin. As a result, the rules they recognize (including human and minority rights standards) are as yet unlikely to have become embedded in social and political practices. 2 Formal but Not Fully Substantive Compliance Formal but not fully substantive compliance describes those circumstances in which all legal requirements in the area of human and minority rights are adhered to but there is nevertheless some reluctance on the part of certain public 

Abkhazia and South Ossetia are not listed here because they arguably do not possess substantive power-sharing agreements, and the preliminary peace agreements that do exist fail to include human and minority rights provisions.

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institutions or actors to review or amend policies or practices that may not be fully in keeping with these principles. Thus, while the British government has demonstrated a strong commitment to human and minority rights principles (as disclosed in the recent domestication of the European Convention on Human Rights), some public institutions within Northern Ireland continue to operate in ways that threaten to undermine this commitment. The 2002 Report of the Northern Ireland Human Rights Commission, for example, expresses concern over the possible collusion between security forces and paramilitaries. Similarly, the 2001 Human Rights Watch Report draws attention to what may be a practice of impunity for police abuse. All local authorities in Northern Ireland must bring their practices in line with human and minority rights norms before a condition of full compliance can be achieved. 3 Partial Compliance In circumstances of partial compliance, there is some evidence to suggest that public institutions and actors are making efforts to comply with human and minority rights standards, but the practical effects of this effort remain both limited and variable. The current state of affairs in Bosnia is representative of such situations. According to the Annual Report of the Bosnian Human Rights Chamber (2000), the implementation of its judgements by local authorities was improving, but remained uneven across the country. Similarly, recent reports by both the Human Rights Coordination Centre within the Office of the High Representative (2001) and the United Nations High Commissioner for Refugees (2003) note a significant increase in the rate of refugee return, but suggest that sustainability is problematic due to return-related violence. Such mistreatment of refugees is subject to regional variability and tends to be much worse in the Republika Srpska. The documentation for Macedonia and Gagauzia presents a similarly mixed picture. While by 2002 most of the 170,000 displaced persons within Macedonia had returned home (UNHCR 2002), human rights in Macedonia remain at best “patchy” (Human Rights Watch 2001; UNHCR 2002) and ill-treatment of ethnic minorities by public authorities persists (Amnesty International 2003). Likewise, in Gagauzia progress has been made in the area of refugees, but institutional support for returnees is nevertheless inadequate (UNHCR 2002) and Moldovan support for Gagauz autonomy could be improved (Council of Europe 2000). 4 Non-compliance Non-compliance describes a general failure on the part of public institutions and actors to respect human and minority rights and a correspondingly high incidence of violations. There is only limited information available on Mindanao, but what does exist is suggestive of non-compliance. The December 2000 Report of the Philippines Task Force for Detainees notes a substantial increase in human rights violations in Mindanao. The 2003 Amnesty International Report describes escalating violence between government forces and the Moro Liberation Front that threatens the safety of the civilian population. Much more data exists for Kosovo, all of it highly critical of the human and minority rights situ-

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ation. The 2002 Report of the Human Rights Ombudsperson for Kosovo argues that the United Nations Interim Administration Mission in Kosovo (UNMIK) is not structured according to democratic principles, does not function in accordance with the rule of law, and does not respect human rights norms. It notes that ethnic minorities remain isolated in ghettos and subject to violent attack, and describes refugee returns as a “distant goal.” In a similar vein, the 2003 United Nations High Commissioner on Human Rights characterizes the local treatment of ethnic minorities as “unacceptable” and questions the quality of the local judiciary. In sum, human and minority rights are largely an abstraction in both Mindanao and Kosovo. J

Predicting Success or Failure

A final typological distinction may explain why some self-determination disputes are more receptive to a power-sharing resolution than others. Among ‘minorities by will’, two additional types may be distinguished: minorities who, while refusing assimilation, are prepared to cooperate with the state; and minorities who reject cooperation because their objective is outright political independence (Laponce 1960: 12). Cooperative minorities are fully satisfied with a special legal status within the state (e.g., the Swedes in Finland or the Danes in Germany); separatist minorities refuse to accept any legal status short of outright political independence (e.g., Slovenes and Croats in Yugoslavia during 1991). Between the cooperative and the separatist minorities, we may add an intermediary (albeit less clear-cut) type: the autonomous minority who would prefer independence but may be prepared to cooperate in exchange for self-government (e.g., the Quebecois in Canada). Complex power-sharing agreements are arguably intended for this intermediary category – the autonomous minority – with a view to encouraging a politics of accommodation that might eventually create a fully cooperative situation. When they are inappropriately applied to avowedly separatist minorities, the results are unlikely to be successful. Internal self-determination is still a poor consolation prize for those minorities who aspire to full political independence. This arguably explains the non-compliance evident in Kosovo and Mindanao, and perhaps also the partial compliance apparent in Bosnia. By all accounts, the Kosovo Albanians, the Moros of Mindanao, and the Serbs of Bosnia do not want to remain minorities within their present states, and arguably it is only the persistent threat of force that keeps them in their current position. In other words, these self-determination disputes remain unresolved, notwithstanding the complex powersharing agreements intended to ameliorate them. IV Summary and Conclusion Human and minority rights play an important role in complex power-sharing agreements. They complement the political arrangements for the accommodation of divergent interests with the legal recognition of distinct normative entitle-

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ments. These entitlements identify a variety of right holders – humans, citizens, members of ethnic communities, the civic or state community, and the various ethnic communities within its jurisdiction – and provide each of them with substantive guarantees that address their particular circumstances. While distinct, these categories are nevertheless also overlapping and so create a web of rights and obligations that crosscut civic and ethnic divisions. Such provisions establish a lasting set of rules and relationships in which competing normative claims may be articulated and resolved. The efficacy of a rights response to ethnic conflict is fundamentally rooted in its normative content precisely because the language of such disputes is overwhelmingly a normative discourse: sovereignty, self-determination, freedom, exploitation, discrimination, justice and injustice, loyalty and disloyalty are all normative concepts. The parties to such disputes consider themselves to be morally as well as politically aggrieved. Indeed, it is their moral claims that infuse their political aspirations with passion and authority such that people are prepared to fight and die for them. In other words, these conflicts are embedded in moral principles and therefore any response to them must itself include a clear moral message. For these reasons, complex power-sharing agreements must be widely seen and understood as just settlements. The human and minority rights discourse has established itself as a globally recognized source of moral authority. Consequently, human and minority rights provisions are a highly effective way of ensuring that complex power-sharing arrangements include an immediately identifiable moral content so that justice can indeed be seen to be done. Needless to say, where justice is not seen to be done, complex power-sharing is unlikely to be successful. Such an outcome is probable where complex powersharing is inappropriately applied to separatist minorities. Minorities who are convinced that outright political independence is their fundamental right are likely to view complex power-sharing as yet another subterfuge by those who would exploit and subjugate them – this may explain the continuing tension between the people of Kosovo and the United Nations Interim Administration Mission, the continued fighting between the Moro Islamic Liberation Front and the Philippine government in Mindanao, and the distinctly uncooperative behavior of the Republika Srpska within Bosnia Herzegovina. This conclusion points to a fundamental shortcoming in international law and practice as applied to minorities. Self-determination remains a highly indeterminate right. Both its substance and its would-be right holders are deeply contested. The extension of this right to incorporate internal arrangements for self-government – which is apparent in the practice of complex power-sharing – may be a notable improvement, but it is nevertheless insufficient for resolving disputes that involve avowedly separatist minorities, of which there are many (examples include Kosovo, Mindanao, Republika Srpska, Ossetia, Abkhazia, Ngorno-Karabakh, Chechnya, and Palestine, to name only a few). Here, John Stuart Mill’s comments on representative government remain prescient:

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Jennifer Jackson-Preece Where the sentiment of nationality exists in any force, there is a prima facie case for uniting all the members of the nationality under the same government, a government to themselves apart. This is merely saying that the question of government ought to be decided by the governed. One hardly knows what any division of the human race should be free to do, if not to determine with which of the various collective bodies of human beings they choose to associate themselves (Mill 1865: 392-393).

There is, in theory at least, a way out of this conundrum consistent with international law and practice: extend the external right of self-determination to a somewhat larger group of right holders by encouraging boundary revision through consent. Manipulating borders to fit peoples is extremely difficult. Consequently, in most situations, such an extension is likely to rearrange rather than remove the problem of minorities. Nevertheless, it may facilitate a more productive minority/majority configuration and thereby improve the likelihood of successful power-sharing. In such cases, the consensual separatist option merits consideration. Unfortunately, however, past experience would suggest that such consent will not be forthcoming in many, if not most, self-determination disputes involving avowedly separatist minorities. Sadly, in such cases, the possibility for violence is likely to remain much greater than the possibility for a Czechoslovak type ‘velvet divorce’. I

Primary Sources

A

Case-specific Documentation

1

Abkhazia

Not Available

2

Bosnia Herzegovina

General Framework Agreement for Peace in Bosnia (‘The Dayton Agreement’) (1995) Office of the Human Rights Ombudsperson Report (Bosnia and Herzegovina) (1999) Human Rights Chamber Annual Report (Bosnia and Herzegovina) (2000) Office of the High Representative Human Rights Priorities (Bosnia and Herzegovina) (2002) Human Rights Coordination Centre within the Office of the High Representative Quarterly Reports (2001)

3

Bougainville

The Bougainville Peace Agreement (2001)

4

Gagauzia

The Law on the Special Legal Status of Gagauz (1994)

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5

Kosovo

Constitutional Framework for Provisional Self-Government in Kosovo (2001) Interim Agreement for Peace and Self-Government in Kosovo (1999) Kosovo Human Rights Ombudsperson Report (2002)

6

Macedonia

Framework Agreement (for Macedonia) (2001)

7

Mindanao

Mindanao Peace Agreement (1996)

8

Northern Ireland

The Northern Ireland Peace Agreement (1998) Report of the Northern Ireland Human Rights Commission (2002)

9

South Ossetia

Memorandum on Measures to Provide Security and Strengthen Mutual Trust Between Sides in the Georgian-Ossetian Conflict (1996)

10 Transdniestria Memorandum on the Bases for Normalization of Relations Between the Republic of Moldova and Transdniestria (1997)

B

International Organization Reports

1

Council of Europe

United Kingdom, State Report On the Framework Convention for the Protection of National Minorities (1999) Council of Europe Advisory Committee On the Framework Convention for the Protection of National Minorities, Opinion on United Kingdom (2001) Moldova, State Report On the Framework Convention for the Protection of National Minorities (2000) Serbia-Montenegro, State Report On the Framework Convention for the Protection of National Minorities (2002)

2

Organization for Security and Cooperation in Europe

Organization on Security and Co-operation in Europe/United High Commissioner on Refugees, Assessment on Ethnic Minorities (Kosovo) (2002) Organization for Security and Co-operation in Europe, Annual Activity Report (19992001)

3

United Nations

United Nations High Commissioner for Refugees, Global Operations Profiles (2002) United Nations High Commissioner for Human Rights, Field Presence Reports (2003)

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C

Nongovernmental Organization Reports

Amnesty International, Reports (2000-2003) Human Rights Watch, World Report (2001) Minorities At Risk, Assessment (2001) Task Force for Detainees of the Philippines, Report (2000) Un-represented Nations and Peoples Organization, Report (2002)

D

Human and Minority Rights Texts

1

Global

Universal Declaration on Human Rights (1948) International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) International Labor Organization Convention 169 on Indigenous and Tribal Populations (1989) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1992)

2

Regional

European Convention on Human Rights (1948) European Social Charter (1961) American Convention on Human Rights (1969) African Charter on Human and People’s Rights (‘Banjul Charter’) (1981). Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’) (1988). Organization for Security and Co-operation in Europe’s Copenhagen Document (1990) European Charter for Regional or Minority Languages (1993) Framework Convention for the Protection of National Minorities (1995)

3

Refugee Texts

Statute of the Office of the United Nations High Commissioner for Refugees (1950) Convention Relating to the Status of Refugees (1951) Protocol Relating to the Status of Refugees (1967) United Nations Declaration on Territorial Asylum (1960)

II

Appendix: Data Summary Tables

A

List of Abbreviations

ICCPR: ICCPR – OP1:

International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Optional Protocol One

21  The Role of Human and Minority Rights in Complex Power-sharing

CERD:

Convention on the Elimination of All Forms of Racial Discrimination ICESCR: International Covenant on Economic, Social and Cultural Rights Coe: Council of Europe IDP: Internally Displaced Person HCNM: High Commissioner on National Minorities HRCC: Human Rights Coordination Centre within Office of the High Representative, Bosnia ECHR: European Convention on Human Rights Framework Convention: Framework Convention for the Protection of National Minorities HRW: Human Rights Watch IAC: Interim Administrative Council for Kosovo SFOR: Stabilization Force for Bosnia KFOR: Implementation Force for Kosovo N/A: Not Applicable ORC: Office of Return and Communities, within SRSG Office, Kosovo OSCE: Organization for Security and Co-operation in Europe RS: Republika Srpska SRSG: Special Representative of the UN Secretary-General (Kosovo) MAR: Minorities At Risk Project MILF: Moro Islamic Liberation Front Minority Language Charter: European Charter for Regional or Minority Languages UNCR: United Nations Convention on Refugees UNHCHR: United Nations High Commissioner for Human Rights UNHCR: UNMIK: UNPO:

United Nations High Commissioner for Refugees United Nations Interim Administration Mission in Kosovo Un-represented Nations and Peoples Organization

657

N/A

1996 South Ossetia MemoN/A randum 1994 Law on the Special Legal Constitution of Moldova Status of Gagauz

1997 Transdniestria Memorandum Bougainville Peace Agreement 2001 Mindanao Final Agreement 1996

Transdniestria, Moldova Bougainville, PNG Mindanao, Philippines

Yes# N/A N/A

(a) N/A

1995

1995

2000

2000

2000# 1996

No*#

Coe Framework Convention 1995#

N/A

1995*

1995

Yes

Constitution of PNG; Proposed N/A Bougainville Constitution Proposed Regional Admin. N/A Code; National Constitution

Constitution of Moldova

1999

Yes#

1999

2002# 1995

Constitution of Bosnia Yes# Constitution of Macedonia (in- Yes# cluding amendments specified in Framework agreeements) N/A Yes

Abkhazia, Georgia South Ossetia, Georgia Gagauzia, Moldova

No*#

Yes#

ECHR 1950#

OSCE Yes

Proposed Bill of Rights for Northern Ireland Constitutional Framework /9

1998 Northern Ireland Peace Agreement 2001 Constitutional Framework and 1999 Interim Agreement 1995 Dayton Agreement 2001 Framework Agreement

Northern Ireland, United Kingdom Kosovo, Serbia-Montenegro Bosnia and Herzegovina Macedonia

Constitution

Power-sharing Agreement

Case studies

Table 1 Location of Human and Minority Rights Applicable to Case Studies

N/A

N/A

2002

2002

No

No

No# 1996

No*#

1986

No

1993

1993

1994

1994

1993# 1994

2001#

Coe Minor- ICCPR ity Language Charter 2000# 1976

1989

No

No

No

1994

1994

1995# 1994

2001#

No

ICCPR-OP1

1974

No

1993

1993

1994

1994

1992 1994

2001

1976

ICESCR

1981

1986*

2002

2002

1999*

1999*

1993# 1994#

2001#

1954

UNCR

1967

1982*

1993

1993

1999

1999

1993# 1994

2001#

1969

CERD

658 Jennifer Jackson-Preece

•

•

# indicates that the human and minority rights instrument was specifically referred to in the power-sharing agreement. Kosovo: Serbia-Montenegro is not a signatory to the ECHR, the Framework Convention on Minorities, or the European Charter for Minority Languages; Kosovo by definition cannot be a signatory at present because it is not an independent state. However, the UNMIK documents specifically refer to the provisions of the ECHR, Framework Convention and Charter for Regional and Minority Languages and indicate that these shall be “directly applicable in Kosovo as part of the constitutional framework.” •

•

•

Moldova: Moldova has placed a reservation on its accession to the ECHR, which stipulates that the government of Moldova cannot ensure compliance within the territory of Transdniestria until the conflict there has been resolved. Georgia: Georgia has placed a reservation on its accession to the UNRC, which stipulates that the convention only applies in those territories where the government of Moldova exercises jurisdiction pending the “full restoration of the territorial integrity of Georgia.” Bougainville: The Bougainville Peace Agreement does not specifically cite any particular international text but reference is made to “internationally accepted standards of good governance, including protection of human rights.”

21  The Role of Human and Minority Rights in Complex Power-sharing 659

Abkhazia, Not Applicable* South Ossetia, 1996 South Ossetia Memorandum* Gagauzia, 1994 Law on the Special Legal Status of Gagauz

No

Yes

No

Individuals; Citizens; Gagauz People

Yes

Individuals; Citizens; Religious Yes Communities*; Members of Communities

Yes

N/A

N/A

Yes

Yes

Individuals; Entities

N/A

Yes

Individuals; National Commu- Yes nities; Members of National Communities

N/A

Yes

People of N. Ireland; Communities; Individuals

N. Ireland, 1998 Northern Ireland Peace Agreement Kosovo, Interim Agreement for SelfGovernment 1999, Constitutional Framework 2001 Bosnia, 1995 Dayton Agreement Macedonia, 2001 Framework Agreement

Non-discrimi- Autonomy nation

Yes

Right-Holders identified in text

Agreements

Yes

No

N/A

No – precluded No – precluded

No – precluded

Yes

External self-determination

Yes

No

N/A

Yes (of refugees) Yes

Yes

Yes

Identity

Yes Moldovan, Gagauz, Russian

No

Yes Macedonian and others spoken by 20% of population N/A

Yes Irish and Ulster Scots Yes Albanian, Serbian, Other No

Language

Table 2 Minority Rights Provisions Included in Power-Sharing Agreements

No

No

N/A

Yes

No

Yes

No

Religion

No

No

N/A

Yes (language education)

No

Yes (language education) Yes (language education)

Education

No

No

N/A

Yes

Yes

Yes

No

Refugees

No

No

N/A

Preservation of National Monuments Preservation of Cultural and Artistic Heritage

Sectarian Harassment; Victims of Violence; Freedom to Choose Place of Residence Amnesty and Release of Combatants; Preservation of Cultural Sites

Special provisions

660 Jennifer Jackson-Preece

Muslims; Christians; Cultural Communities; Bangsamoro People

Mindanao, Mindanao Final Agreement 1996

•

Yes

Yes

Yes

Yes

Yes

No – precluded

Yes

No

Three religious communities are singled out for recognition in the 2001 Framework Agreement: the “Macedonian Orthodox Church”; the “Islamic Religious Community”; and the “Catholic Church.” I have been unable to locate any power-sharing agreement for Abkhazia. An OSCE led meeting to discuss power sharing in Abkhazia took place in September 2001 but did not result in an agreement.

People of Bougainville; Individuals

Bougainville, Bougainville Peace Agreement 2001

*

Individuals

Transdniestria, 1997 Transdniestria Memorandum

•

Yes

Yes

No

Yes

No

No

Yes (religious education, especially Madrasa)

No

No

No

No

No Integration of Tribal Customs; Amnesty and Pardon of Combatants; Approval of Foreign Investment Shari’ah courts; Islamic Banking Law; Representation in Police and Civil Service

No

Neither human nor minority rights provisions are included in the 1996 South Ossetia Memorandum, which is arguably a preliminary peace agreement rather than a full powersharing agreement.

Yes Filipino English Arabic

No

No

21  The Role of Human and Minority Rights in Complex Power-sharing 661

2002 Report of the N. I. Human Rights Commission Problems: possible collusion between paramilitaries and security forces: paramilitary violence; sectarian intimidation; police use of plastic bullets Progress: consultation on Bill of Rights; 2001 Joint H.R. Commission established Ombudsperson Report 2002: UNMIK not structured according to democratic principles, does not function in accordance with rule of law and does not respect human rights norms; ethnic minorities isolated in ghettos and subject to violent attack; refugee returns a “distant goal”

N. Ireland

Kosovo

Specific Domestic Mechanisms

Cases

N/A

See Coe Framework Reviews

2001: Under-representation of Catholics in police force; segregation in schools and housing estates; minority language education and broadcasting

Coe Framework Convention Advisory Opinions

See UNHCR Report OSCE/UNHCR N/A 2002; Assessment on UNHCHR Report 2003 Ethnic Minorities 2002 Progress: Gradual improvement in security; creation of ORC Problems: small scale return of refugees; limited freedom of movement; pervasive discrimination

OSCE Reports

Specific International Mechanisms

Problems: Tension and interethnic violence continue; refugee returns modest because of security situation Progress: IAC adopts Joint Framework for the Return of Serbs

UNHCR Global Operations Profiles 2002 and Returning Refugees IDPs N/A

Table 3 Summary of Human and Minority Rights Compliance Indicators

Problems: Unacceptable local treatment of ethnic minorities; limited return of minority refugees; Progress: Quality of local judiciary

Problems: human rights often an “abstraction”; mistreatment of ethnic minorities

Increased tension between KFOR and local authorities Widespread anti-Serb, anti-Roma sentiment

2002: impunity for international community in Kosovo violates rule of law 2001: SRSG Executive orders of detention violate ECHR;

2002: Amnesty welcomes House of Lords ruling that the Northern Ireland Human Rights Commission can intervene in cases before the Northern Ireland Courts; Concern re: failure to investigate security force collusion with loyalist death squads during “The Troubles”

“prospects are dim that violence will end”; keys to conflict “no longer lie with signatories”

N/A

Problems: concern re: Anti-Terrorism Act; govt. stalling on inquiries into murder of human rights lawyers; impunity for police abuse Progress: human rights reforms

MAR Amnesty International 2001 Risk Assessment Reports

UNHCHR HRW Field Presence Reports 2001 World Report 2003

662 Jennifer Jackson-Preece

Office of the Human Rights Ombudsperson: no Annual Report since 1999; no newsletters since 2000; Human Rights Chamber Annual Report 2000: 6,675 individual applications received to date; implementation of decisions improving but uneven across country; case content concerns property of returning refugees, ill treatment on arrest and detention, treatment of Muslim minorities in SR

No available information

Bosnia and Herzegovina

Macedonia

See HRCC Report Not Available HRCC Quarterly Report 06/01: Rate of refugee return increasing but sustainability problematic due to return related violence; this quarter 117 reports of incidents directed at ethnic minorities; ethnic violence twice as high in SR OHR Human Rights Priorities 2002: Sustainability of refugee return; discrimination in education; reform of police and judiciary; capacity building of domestic institutions; minorities HR Ombudsman Annual Report: none released since 1999 See OSCE; UNHCR; ODIHR : 2002 parlia- Not available UNHCHR mentary elections conducted “largely in accordance with OSCE principles” HCNM: none since 1999 2002 Report: more than 150,000 of the 170,000 persons displaced during 2001 have returned

Problems: housing and employment shortages hinder return; returnees face harassment and discrimination

Problems: judicial corruption; treatment of opposition parties; Progress: human rights education

Problems: antiterrorism and human rights; citizenship criteria; S C abuse of power; mistreatment of returnees in RS

Problems: “patchy” human rights record; police brutality; concern for ethnic minorities

Problems: media harassment Progress: return of refugees; domestic compliance with human rights

Some risk of conflict but reduced by increased commitment to democracy

Situation improving but still volatile

2003: police ill-treatment and torture of ethnic minorities 2002: threat to freedom of expression; practice of impunity for National Liberation Army violates rule of law

2003: time to end impunity for disappearances during war 2002:SFOR detention violates human rights 2001: violence against minorities in Republika Srpska must stop

21  The Role of Human and Minority Rights in Complex Power-sharing 663

2001: Peoples See OSCE Assembly of Gagauzia demands greater representation in Moldovan parliament and an end to disparities in economic distribution

Gagauzia

N/A

N/A

South Ossetia

N/A

N/A

Abkhazia

No documents available since 1999; no mention in 2001 OSCE Activity Report

2001 Annual OSCE Activity Report: “some positive signs in Georgian-Ossetian conflict” including some “grassroots rapprochement” in ethnically divided villages 2002 Expert Meeting on Ossetian Conflict: “positive dynamics of settlement process have been significantly upset in recent months”

2001 Annual OSCE Activity Report: “peace process at virtual standstill” due to increased conflict

-better support for Gagauz language -add provision to constitution re: Gagauz autonomy

Problems: no significant progress on return of refugees and IDPs

Not available

For Moldova as a N/A whole Problems: inadequate institutional capacities Progress: Directorate for Refugees established

N/A

Problems: N/A prospects for return Mission completed bleak because of 2002 continued conflict and low security

Not available

Not available

As above

Poor human rights record; religious minorities harassed

Not directly applicable to conflict

Not directly applicable to conflict

Low Not directly applicable Risk of conflict due to to conflict autonomy agreement

Conflict unresolved but stable

Conflict unresolved; low-level violence; refugee problems

664 Jennifer Jackson-Preece

N/A

March 2002 PNG parliament gave legal effect to peace agreement

No available information

Transdniestria

Bougainville

Mindanao

No specific docu-no specific references ments available since 1999; 2001 Annual OSCE Activity Report: Moldova Mission encouraged return to negotiation process after break of 6 months N/A OSCE N/A Peace Monitoring UNPO Report 2002 Group to withdraw in June 2003 so that Progress: constitutional commission island can elect an autonomous govern- established ment; 01/03 Contain- Problems: large number of decomment programme progressing – hopeful missioned arms stolen will retrieve arms stolen in 2002 N/A N/A N/A Task Force for Detainees of Philippines 12/00 notes increase in human rights violations

See OSCE

No relevant information

N/A

No report since 1993

Not available

No relevant information

N/A

Not available

For Georgia as a N/A whole Problems: inadequate institutional capacities Progress: Directorate for Refugees established

2001: notes autonomy agreement achieved and implementation is pending

Not directly applicable to conflict

2001 N/A 2003:violence 2000 Review: violence between MILF and continues government forces in Mindanao escalating; civilian safety at risk

2001 N/A Last review in 2000 prior to autonomy agreement

Declining risk of conflict; continued Slav demands for greater autonomy

21  The Role of Human and Minority Rights in Complex Power-sharing 665

Chapter 22 ‘Bridges’ in Self-determination Disputes? External Relations of Sub-national Entities and Minority Groups Francesco Palermo

I

Introduction

Borders divide. Especially in the context of the nation-state, the primary historical function of borders is that of forming barriers (Hutchman 2000; Mantovani 2000; Anderson, O’Dowd, and Wilson 2002). But borders also function as filters, as “discriminating mediators between two or more political-institutional or economic systems,” creating economic advantages and disadvantages. A third perspective, the concept of the “open border,” stresses the function of contact (instead of separation) between two or more political-institutional systems or social-economic subsystems, allowing synergies between border areas (Ratti 1991: 57). In the context of a peaceful Western Europe after the Second World War, border areas began to express two needs. It was increasingly perceived that the greater integration between states and the consequent dilution of national sovereignty transformed these areas from mere peripheries of the nation-states they belonged to into “new centres in the periphery” (Toniatti 1997: 23). They were now integrated and more efficient areas from economic, cultural, and social perspectives, performing a sort of bridging role between different systems. Additionally, the necessity of joint management of common problems between neighbouring areas belonging to different states became more evident and of increasing importance. This is particularly the case for environmental issues (Macrory and Turner 2002: 59), but also applies to problems affecting the fields of economy (commerce, trade and tourism), transport, the cultural sphere, and many others. More recently, cross-border cooperation (CBC) activities have also emerged between areas where ethnic, linguistic, or cultural groups live – sometimes constituting a minority within their own state but the majority on the other side of the border (for example, between the German-Czech, German-Danish, ItalianSlovenian, and Austrian-Italian borders) (Council of Europe 1995; Strassoldo and Delli Zotti 1982). Consequently, the external relations of sub-national entities and groups began to draw political attention, especially as some cooperation projects Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 667-688

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were (and still are) seen as a tool for the creation of ethnically homogeneous regions, in order to create a federation of small and ethnocentric areas (Wolff 2003). Projects of this kind have slowly integrated and, practically, even replaced, at the sub-national level, the protecting role of nation (kin-)states where they exist. On the other hand, the overall tendency in governance has been the search for more efficiency, which can be best achieved by more flexible and results-oriented cooperation between (already existing) entities. This does not only explain phenomena like cooperative federalism (and regionalism) but also supranational forms of cooperation, for example, the European Community, which has proved to be a guarantee for states with respect to fears for their own sovereignty. In this new and less ‘ideological’ context, the phenomenon of legally regulated activities outside the local jurisdiction can be a useful indicator for the institutional evolution of autonomy and minority-protection systems. This chapter first explores the legal nature of external relations of sub-national entities (and of CBC in particular) from the perspective of international and EU law, as well as in the comparative constitutional law of federal and regional states, in order to underline the rules that generally apply to all forms of external activities of non-state entities. In the second part, I analyze the forms of external relations provided in the power-sharing agreements of the case studies, including both international relations tout court and CBC activities. Finally, some conclusions are drawn on the present and future role of this kind of arrangement for resolving selfdetermination disputes. It is argued that only mature power-sharing systems are able to effectively (and cooperatively, which in this context is the same) manage the powerful instrument of non-state external relations. Thus, it will be stressed that most of the cases analyzed are still lacking the very pre-condition for a successful implementation of external relations as an instrument for resolving ethnic conflicts: cooperation established and guaranteed by law. However, the margins for an improvement in this respect are probably greatest among all power-sharing mechanisms. II

The Legal Nature of Sub-national External Relations

A

Conceptual Context of the Phenomenon

1 External Relations of Sub-national Entities and Cross-border Cooperation The concept of the border as a ‘barrier’ is increasingly regarded as anachronistic, with great interest being devoted to overcoming such barriers by means of crossborder initiatives and, more generally, of legally relevant activities beyond the territorial jurisdiction of sub-state entities. Nevertheless, this phenomenon has only recently been studied by legal scholars. While international lawyers have ex

In this chapter, the terms ‘sub-national’, ‘sub-state’, and ‘non-state’ will be used as synonymous, all indicating public-law entities subordinated to the authority of a prevailing constitution, which guarantees their autonomy.

22  ‘Bridges’ in Self-determination Disputes? External Relations of Sub-national Entities and Minority Groups

plored it for some years from their perspective, until recently constitutional lawyers usually did not pay too much attention to it, focusing mainly on the issue of sovereignty instead. This approach led to a general presumption of sub-national external activities – where allowed – as exceptional, whereas their prohibition was considered the rule. However, the present legal situation seems to challenge this assumption. On the basis of the numerous multilateral and bilateral agreements concluded in the last two decades, as well as by means of constitutional reforms (or progressive judicial interpretation of the constitutional provisions), external relations of sub-national entities are now to be seen no longer as ‘pathologic’ (i.e., tolerated exceptions), but more and more as ‘physiologic’ (i.e., a natural phenomenon). Given the apparent decreasing importance of space and physical distance (Ortino 2002), it becomes natural that almost all policies adopted within a territory may have an impact on other territories subject to a different jurisdiction. The legal regulation of external activities is a way to rationalize the external effects of the policies and to provide limits to them. External activities in some fields can be completely independent from borders. This is the case, for example, of some economic policies that can be carried out jointly by non neighbouring entities, as in the case of the so called “Four Engines for Europe” – a strategic alliance in some crucial areas between economically strong European regions (Baden-Württemberg, Lombardy, Catalonia, RhoneAlpes) (Raich 1995). However, it is quite evident that most of the sub-state external activities have to do with the joint management of border issues and are thus performed by neighbouring entities (CBC). This is the case of many environmental policies, traffic, territorial planning, etc., as well as of policies directly or indirectly affecting minority groups living on a border and having an interest in establishing special relations with the other side of the border. Thus, greater attention shall be paid to the opportunities provided by public law-based external (and CBC) relations of sub-national units or even specific groups of people (such as minorities). 2 … Involving Ethnic Disputes Since the end of the Cold War, the claim of self-determination has increasingly been used as a justification for demanding independence or secession. Rapid secularization, democratization, and urbanization often have a strong impact on ethnic sentiments, which frequently serve as a substitute for religion (Bonazzi and Dunne 1995; Kymlicka 1995). Despite the continuing changes in international law, which seem to put an end to the concept of absolute state-sovereignty, as well as to the related principle of non-interference, there is great resistance towards changes to borders as a basis for settling ethnic disputes, as these borders are still seen as important guarantees for stability. Additionally, since ethnic groups do not always concentrate in a compact settlement area, means other than secession or independence have to be found in order to solve conflicts resulting from ethnic diversity within the state.

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Contrary to the situation during the Cold War, where genuine autonomy of territories and groups was sometimes seen as incompatible with state sovereignty, it now not only represents an attractive alternative to secession but is also perfectly in line with a pattern of general decentralization and the creation of multilevel governance-structures by integration. These developments give more room for differentiation and for activities organized at a regional and sub-state level, both within the state as well as across its borders, as is well demonstrated by the (lobbying) activities of various European regions in Brussels, their engagement in economic development projects in other countries, and the formation of so-called Euro-regions across state-borders. In this environment, CBC activities constitute a flexible, necessary and important addition to the internal decentralization of states. Where minority issues are involved, intra-ethnic relations between communities can also be carried out without altering borders. For this reason, an increasing number of ethnic conflict settlement agreements more-or-less explicitly mention the establishment of territorial or group relations with states or sub-national units outside the state border. This instrument is seen as an efficient alternative to self-determination claims by minority populations. Due to its experimental nature as a ‘third way’ between secessionist threats and overall centralization, minority-related external activities were originally developed in the penumbra of positive law. This also explains the immense variability of the forms of external and CBC-activities (Beyerlin 1988). However, after developing in a sort of legal ‘grey zone’, the need emerged to make those activities more visible (as a guarantee for states) and legally more secure and safeguarded (as a guarantee for cooperating minority groups). B

Legal Foundations in International and European Law

After the immediate economic reconstruction that followed the Second World War (and extended until the 1960s), and with the beginning of European integration, CBC between territorial units increased significantly in Western and Central Europe, for example, along Germany’s western and northern borders. Immediately after the fall of the Berlin Wall, territorial (mostly regional and local) CBC developed on both sides of the former Iron Curtain, between German, Austrian, and Italian entities, on one side, and Polish, Czech, and Slovenian ones, on the other. Due to the lack of public law instruments allowing sub-national entities to perform their functions across their borders or boundaries, the legal instruments for this kind of cooperation were mainly forms of private law (associations, foundations, companies, working groups, etc.). For this reason, states decided to give these spontaneous external relations some legal recognition under public law. In Europe, the legal framework was found in the Council of Europe, under whose legal and political umbrella cross-border activities between sub-national territorial entities have increased enormously in the last decades. In 1980, the 

Recommendation 470 was adopted by the Consultative Assembly (now Parliamentary Assembly) in 1966, followed by Resolution 8 regarding cooperation at the mu-

22  ‘Bridges’ in Self-determination Disputes? External Relations of Sub-national Entities and Minority Groups

member states of the Council of Europe agreed upon an Outline Convention on cross-border cooperation between territorial communities or authorities (Madrid Outline Convention, MOC) that aims “to facilitate and foster cross-border cooperation between territorial communities or authorities ... and to promote the conclusion of any agreements and arrangements that may prove necessary for this purpose with due regard to the different constitutional provisions of each Party” (MOC Art 1). The MOC established an international legal basis for existing activities and for the further development of this new form of cooperation. Nevertheless, as is typical for international law mechanisms, the MOC only provides a programmatic context and a minimum standard that shall be common to all the contracting parts. In the case of the MOC, the minimum standard is represented by the opportunity for the local communities or authorities to cooperate “in particular by agreements in the administrative field” (point 3 of the preamble), having regard to the different constitutional provisions of each state (MOC Arts 1, 2.1, 3.1, 4). The most relevant consequence of the MOC, therefore, is that it brings CBC into the domestic legal system of the contracting states, transforming it from an activity at best ‘tolerated’ into an explicitly ‘legal’ one, the promotion of which the states have agreed upon. On 20 October 1995, a notable Additional Protocol to the MOC was opened for signature. This Protocol aims at strengthening the MOC by clarifying the legal nature of CBC agreements and Euro-regions. It expressly recognizes, under certain conditions, the right of territorial entities to conclude CBC agreements, the validity in domestic law of the acts and decisions made in the framework of a cross-border cooperation agreement, and the legal corporate capacity (“legal personality”) of any cooperation body established under such an agreement (Additional Protocol Art 5). Thus, the Additional Protocol opens new opportunities for internationally regulated CBC, but its importance should not be overstated, as it needs ratification by the involved states and additional implementation measures. However, the Additional Protocol to the MOC marks the clear intention of the contracting states to make the more and more numerous forms of CBC in Europe more visible and to explicitly recognize them under a legal framework. As cross-border organisms, the so-called Euro-regions are the institutionalization of spontaneous and informal CBC activities, and thus are the most developed link

  

nicipal level in border areas, adopted by the Committee of Ministers in 1974 (Council of Europe 1997; Ricq 1996). Signed in Madrid on 21 May 1980 (after five years of work on the drafts) and entered into force (after four ratifications) on 22 December 1981 (ETS 106). Open for signature in Strasbourg on 9 November 1995 by the states that have signed the Madrid Outline Convention, and entered into force on 1 December 1998 (ETS 159). See also Additional Protocol 2 to the MOC (ETS 169), 1998, which establishes a legal basis for cooperation also between non-adjacent territorial authorities.

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in the chain of evolution. They first appeared in three regions of Europe that are particularly sensitive to issues related to traffic and/or environment: Scandinavia (Nordic Council), along the river Rhine (Regio Basilensis and Euregio) and in the Alps (Arge-Alp, Alpe Adria) (Bajtay 1996). An increasing number of “formal structure(s) established by municipalities or regions for the purpose of CBC with the participation of economic and social partners” (Gabbe 1995: 3) were established. These structures do not represent a new level of government but rather a horizontal and flexible link of governance for persons, enterprises, and public bodies on both sides of the border by offering practical and psychological advantages and respecting the common interests. There is a great variety in the institutional and administrative structures of the cross-border entities and these have direct impacts on the possibility of effectively influencing policies related to the territory, the environment, the cross-border traffic, or the economic cooperation of its members. The more recent attention paid to CBC as a viable instrument in minority issues is demonstrated by the role conferred on CBC in the Council of Europe’s 1995 Framework Convention for the Protection of National Minorities (FCNM). In particular, Article 17 FCNM explicitly requires that the contracting states “undertake not to interfere with the right of persons belonging to national minorities to establish and maintain free and peaceful contacts across frontiers with persons lawfully staying in other states, in particular those with whom they share an ethnic, cultural, linguistic or religious identity, or a common cultural heritage.” Moreover, the states “undertake not to interfere with the right of persons belonging to national minorities to participate in the activities of non-governmental organizations, both at the national and international levels” (FCNM Art 17). This provision clearly envisages a general obligation that the states undertake to allow minority groups to engage in CBC activities in order to foster their ties with a foreign state. The clear distinction between external relations as a whole (generally authorized by Article 17 FCNM) being specified in procedural rules of domestic law and specific international treaties that minorities (or their representative institutions or territorial governments, or the central governments) may conclude for the same purpose emerges from Article 18 FCNM. According to this provision, “the Parties shall endeavour to conclude, where necessary, bilateral and multilateral agreements with other States, in particular neighbouring States, in order to ensure the protection of persons belonging to the national minorities concerned.” A consequence of this is the increasing number of bilateral treaties concluded by states for the protection of minority groups and for establishing permanent relationships across the respective borders, particularly in Central and Eastern Europe (Lantschner and Medda-Windischer 2003). Many of the overall frameworks provided by the treaties find a more-or-less direct response in national 

See the information on Euroregions provided by the Council of Europe at http:// www.coe.int/T/E/Legal_Affairs/Local_and_regional_Democracy/Transfrontier_cooperation/Euroregions/

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legislation. An interesting example is provided by Hungary, where the 1993 law on the protection of minorities granted to members of minorities the “right to motherland” (Art 3.4) and the right to establish “international relations with the motherland” (Art 19). Regardless of the increasing attention to framework legislation provided by international law for external relations of minorities (and their territories), the detailed procedures to exercise this emerging right need to be laid down in the domestic legal system. In other words, the foundations for CBC provided by international law are not sufficient in themselves as a legal base for concrete measures to be taken as cross-border activities. This is also true for EC law, at least from a formal perspective. EC law cannot directly intervene in this field because the internal organization and distribution of powers between the various levels of governance is still vested with the individual member states (the so called ‘principle of institutional autonomy’). Nevertheless, the regional policy of the EC, particularly by means of financial incentives and support to promote CBC activities, plays a crucial role (albeit indirectly) in impelling the states to improve the powers of their regions to connect themselves with regions of other states (European Commission 1992; European Parliament 1996). The most relevant instrument here is the INTERREG initiative, which since 1990 has provided funds for common initiatives between border regions within and outside the EU. The INTERREG funds promote CBC as a means for the economic development of border regions in order to overcome mainly economic problems of regional markets at the peripheries of the EU. Of great importance in terms of awareness – and confidence-building – is the involvement of the states themselves, who, by participation of the regional and local entities, have to provide cooperation programmes (of five years duration) in order to qualify for the funds. The total amount of INTERREG-IIA (1994–1999) was around ECU 4 billion. Currently, the INTERREG initiative has entered its third phase, with a constantly increasing budget. The initiative is open to any region situated on borders, within the EU or with non-member states. There are special programmes for the Eastern borders of the EU (Phare-CBC Programme) and for cooperation with the successor states of the former Soviet Union (Tacis-CBC Programme).10 Another significant European initiative for the promotion of CBC is the LACE project, aimed at inform 

 10

The first financial support of CBC activities had been included in Article 10 ERDF (European Regional Development Funds) in 1989. See Communication from the Commission to the Member States of 28 April 2000 Laying Down Guidelines for a Community Initiative Concerning Trans-European Cooperation Intended to Encourage Harmonious and Balanced Development of the European Territory-Interreg III (OJ C 143, 23/05/2000, 6). The specific aims of the EC’s structural policies are no longer a pre-condition. Local and private bodies can also apply. See Special Report 16/2000 of the Commission on Tendering Procedures for Service Contracts under the Phare and Tacis Programmes, OJ C 350, 06/12/2000, 1.

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ing and increasing the exchange of knowledge-related CBC between European border regions.11 Yet other European initiatives grant financial aid to enterprises operating across borders. In order to consolidate the legal foundations in EU law for CBC activities, the Commission is working on the elaboration of a specific legal instrument of secondary community law for making CBC possible directly under community law. In summary, the phenomenon of external and cross-border relations, with its typical bottom-up approach, is increasingly determined and shaped by EC law (and policies) even though still only in an indirect way, i.e., by means of promoting economic cooperation, especially through generous financial support. Nevertheless, the legal foundations of cooperation across borders by means of public law instruments remains with the single (and often different) domestic constitutional systems of the states. C

Comparative Constitutional Analysis of Sub-national Treaty-making Power

Rules on the external relations of sub-national entities vary quite considerably between states. In general, federal systems usually recognize a limited treatymaking power for their constituent entities (for example, in the USA, Germany, Austria, Belgium, Switzerland, etc.), whereas merely decentralized, so-called ‘regional’, states normally do not constitutionally provide for this power at the regional level.12 The detailed rules on how to engage in external relations differ from country to country and do not really depend on the self-attributed (‘federal’ or ‘regional’) nature of the states. However, a deeper analysis of the domestic provisions in several Western federal and decentralized states (Palermo 1999) clearly shows some fundamental features that are generally valid regardless of the nature of the state and of the kind of sub-national entities involved (territorial or even non-territorial, such as ethnic groups not enjoying a specific territorial self-government). The elements common to all rules on external relations of non-state entities are twofold. On the one hand, external relations are not really a competence but rather a procedure: They are not a power per se but simply the way to exercise powers outside the realm of the geographic jurisdiction. Thus, the domestic regulations over external activities do not determine the powers to be exercised but how to exercise 11 12

LACE – Linkage Assistance and Cooperation for the European Border Regions. The operative assistance, e.g., assistance in the preparation of INTERREG-IIA-projects, is given by the Working Group of European Border Regions (AGEG). There are some exceptions here, also, as in the case of Italy after the 2001 constitutional reform (Constitutional Law 3/2001), which introduced an explicit reference to a treaty-making power of the regions. Article 117.9 of the Italian Constitution stipulates that “in the areas falling within their responsibilities, regions may enter into agreements with foreign states and with local authorities of other states in the cases and according to the forms laid down by state legislation.”

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powers that are already vested with the sub-national entities. On the other hand, this procedural mechanism – regardless of the countless detailed differences depending on the institutional structure as well as on the legal culture of each country – is based on cooperation. The sub-national entity (territory or group) that wants to engage in external relations with other states or sub-national units (for whatever reason – including the establishment of cross-border relations in order to foster ethnic ties) needs to cooperate with the central government. The logical consequence to be drawn from this is that the more efficient the cooperation – both in legal terms (efficient procedures) and in socio-political terms (cooperative attitude) – the more developed and effective the sub-national power to establish external relations. More specifically, sub-national entities are allowed to enter into international treaties or to engage in other forms of external relations only under the following conditions: a) there must be the consent of the central government (before or after the conclusion of the agreement); b) there is control by the central level (which in case of international treaties can always prohibit the conclusion or force the sub-national units to denounce them); c) the external relations of sub-national entities must not affect the international liability of the whole state nor its foreign policy. Especially where ‘foreign policy’ is concerned, the concrete limitations largely depend on discretion, and thereby are limited by means of previous accord between the sub-national units and the central power. The central government must be informed about the external activities and can even terminate them if they violate one of two basic principles: the safeguarding of the international liability of the state and the unity of the state’s foreign policy. In a system based on the rule of law, sub-national units may impugn the denial of consent before the national constitutional or supreme court, which basically controls only the observation of the cooperation procedures, as the content of external activities is negotiated between the levels of government within the framework of the cooperation dictated by the constitution. These conditions mean, in practice, that significant autonomy is granted to the sub-national units if they are able to cooperate with the state, whereas the space for activities without the consent of the state is very limited, if not completely precluded. Further, there is normally an independent mechanism to settle disputes about competence, usually a constitutional court or a functional equivalent. Thus, the rules on external relations are provided by the set of procedures regulating cooperation within the domestic constitutional order, although influenced by international (and European) law as well as by practice. The more intense the cooperation between the central power and the sub-national entities, the more effective the procedures of external relation. Therefore, due to the supreme position of the state in determining what constitutes ‘foreign policy’, the best way to improve the external capacity of non-state entities and groups is to improve co-

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operative mechanisms within the domestic constitutional system, making them more efficient. The more state control is substituted by participation of all relevant actors in sharing cross-border policy, the more effective the cooperation and thus the power of non-state actors to engage in external relations. Having clarified the legal background to any external activity of sub-national units or minority groups it is now possible to analyze the more recent conflict settlement agreements in light of this. III External Relations and CBC in Recent Complex Power-sharing Agreements In the context of post-conflict situations, external relations and CBC face particular difficulties. As has been demonstrated, well-functioning procedures require a favourable environment, i.e., a cooperative culture between the central state and the sub-national (cooperating) entity. When mutual trust and efficient procedural mechanisms are lacking, external relations of the regions and minority groups can easily be considered dangerous or even as a preparatory step towards secession. Consequently, only where mutual trust between the majority and minority population is achieved, and where there is no doubt about the loyalty of minorities to the state they belong to (Kymlicka 2002: 19), can efficient cooperation mechanisms be established and the external relations of the minority groups start working effectively. Of course, every situation is unique in this respect, even those within the same state. For example, German-Danish or German-Dutch relations are quite different, in terms of the “securitization”13 of the interethnic relations, from German-Polish or German-Czech relations.14 Similarly, the attempt to create a Euro-region between Tyrol, South Tyrol, and Trentino at the Italian-Austrian border was initially perceived as a threat to the delicate minority-protection mechanisms in the area and it could start working only after those fears were alleviated (Nick and Pallaver 1998). Against this, especially where CBC is an issue, the case studies can be analyzed and evaluated – where external relations is one of the instruments for complex power-sharing as an alternative to external self-determination depending on the degree of cooperation established by the dispute settlement agreements. Particular regard is given to explicit rules on external relations contained in the peace agreements but, more generally, the overall framework of cooperation is also taken into consideration, as well as the specific conditions of each experience. Instead of a sterile list of the individual countries analyzed, the cases will 13 14

The term “securitization” is used by Waever (1995). Along the Dutch-German border, despite occupation during the Second World War, the development of CBC was not only begun very early but has gone so far as to allow the establishment of institutionalized Euro-regions as public law entities (Scott 1997: 83), whereas on the eastern borders of Germany the confidence-building process is not yet completed, thus making CBC a very sensitive issue (e.g., along the Czech border, where the mass-deportation of Sudets took place) (Gerner 1997: 107).

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be grouped according to the typology of rules and conditions that can be derived from the comparative investigation. With regard to the rules on external relations of minorities and (their) territories provided by the conflict settlement agreements and their consequent implementation, the cases studies can be grouped in three main categories: a) Non-existent external relations. Due to specific conditions, such as the geographic situation (for example, islands) or the lack of foreign states that can be considered for cooperation based on the development of ethnic ties, external relations are simply not an issue. This applies to a (small) number of cases, although some degree of international relations are nevertheless implicitly possible, at least in terms of third party or international involvement in the conflict resolution. b) Merely informal relations. This is the case for conflict-resolving agreements that do not mention the possibility of engaging in external relations but nevertheless some international activities are carried out as a matter of practice and/or on the basis of the cooperation procedures or the powers laid down in the constitution. c) Explicitly mentioned external relations for improving or maintaining the ethnic characteristics of minority groups. This category of agreements is the most common and interesting one for our purposes. However, a distinction should be drawn not only between the intensity of the guarantees in terms of number and complexity of the specific provisions on this matter but also between the nature of the guarantee, having regard to whether the powers are assisted by a merely political or firmly entrenched and substantive legal guarantee. A

Non-existent External Relations

The first, and easiest, case to deal with is where no power, either explicit or implicit, is allowed to the groups or their territories concerning external relations of any kind. This is particularly the case of Mindanao, where the only reference to external relations in the 1996 peace agreement is the reservation of ‘foreign affairs’ as a whole to the central government, thus banning any possible power on this matter for the regional legislative assembly.15 Also, given the geographical, geo-political, and ethnic-religious conditions affecting the Mindanao conflict, it seems quite difficult to identify any possible uses of external relations as an instrument to contribute to a more viable solution of the conflict.

15

The same principle (although referred to as ‘foreign policy’ instead of ‘foreign affairs’, though the two wordings seem to be synonymous) was established also by the 1976 Tripoli agreement.

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B

Merely Informal External Relations

This second group is of countries that do not explicitly recognize external powers for groups and/or territories but where cross-border activities are nevertheless carried out by means of other instruments, legal or (more frequently) factual. In these cases, the law generally tends to simply tolerate the less visible (and, from the perspective of the central states, less dangerous) activities instead of explicitly regulating them. This is due to the fears arising from a formal recognition of external relations of potentially secessionist territories and groups, and to the assumption that other, more basic needs are required by the involved minorities. In Georgia, there are no specific rules on the possible external relations of Abkhazia and South Ossetia. Nonetheless, due to the geographic proximity to Russia – which can be considered (at least informally and somewhat one-sidedly) the kin state of both entities – informal relations do occur, although merely at a political or even criminal (smuggling) level. In the case of South Ossetia, there is the addition of a ‘natural’ partner on the other side of the border, North Ossetia, although all formal declarations (especially from the North Ossetian side) deny any particular interest in fostering cooperation across the border (see Ch 11), to enhance a good neighbourly relationship with Georgia. Moreover, particularly in the case of Abkhazia, there was international involvement in the conflict resolution phase. Much more so than in the Georgian case, the three Balkan experiences analyzed (Kosovo, Macedonia, Bosnia and Herzegovina) are shaped by the presence of (more-or-less explicit) kin states for the ‘minorities’. Some groups (possibly including Albanians in Kosovo and Macedonia, Serbs and Croats in Bosnia) did have (and probably still have) aspirations of reunification with their ‘homeland’, although this has been excluded by the peace agreements. It is thus understandable that two of the three agreements do not accord, or at least tend to minimize, powers to the groups or their territorial entities to engage in foreign relations.16 But, at the same time, it is equally understandable that such relations do take place, in some form or other, given the territorial proximity. Moreover, it is obvious that the external relations and CBC activities carried out in those areas do have a quite evident ethno-political connotation. The peculiar status of Kosovo, and its practical (although not legal) separation from Belgrade, combined with the need not to foster the aspiration of a unification with Albania,17 made it necessary to reduce as much as possible the external relations of Kosovo, particularly with the ‘kin states’ of the two communities, Serbia and Albania, at least for the first phase of the conflict settlement. The Rambouillet agreement did recognize extensive rights of the national communities, particularly the overall right to “preserve and express their national, cultural, religious and linguistic identities” (Art VII.1). To do so, the national communities 16 17

The most outstanding example is provided by UNMIK Regulation 2001/10 of 24 May 2001, prohibiting unauthorized border/boundary crossing from Kosovo. For details, see Ch 8.

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may participate “in regional and international non-governmental organizations” (Art VII.4.x), and the members of national communities have (individually) “the right to enjoy unhindered contacts with members of their respective national communities elsewhere in the Federal Republic of Yugoslavia and abroad” (Art VII.5. lit. a). In addition, “each national community … may exercise additional rights through federal institutions and institutions of the Republics” (Art VII.6). This bundle of provisions, where appropriately implemented in light of the principle of cooperation, may constitute the legal basis for external activities in order to develop the national identity of each community. Particular attention should be paid in this regard to the possibility of conducting international relations through the central authorities, i.e., by means of an effective domestic cooperation, although, under the present international administration, the external representation of Kosovo is carried out by the Special Representative of the UN Secretary-General (UNSRSG).18 However, this authority does not include forms of cooperation that are not regulated by international law, as are most of the CBC activities at sub-national (particularly at local) level. The case of Macedonia is even clearer in excluding formal external relation powers and procedures from the set of instruments available for complex powersharing. One of the fundamental principles of the Ohrid agreement of August 2001 states that “there are no territorial solutions to ethnic issues” (Art 1.1.). This sharp (and debatable) statement is aimed at eliminating forever the risk of secession (and also of the establishment of ethnically-based sub-national entities) but its strict interpretation may indicate the disinclination to any kind of use of the territory in order to accommodate ethnic claims.19 In fact, the legal framework is much more complex, and there are some indicators of a possible legal basis for cross-border activities by local governments and groups as such. In the first place, the enhancement of decentralization and municipal autonomy with the constitutional amendments following the Ohrid agreement establishes a framework for territorial cooperation across the border.20 Secondly, the general recognition of the rights of the members of the communities “freely to express, foster 18 19

Constitutional Framework for Provisional Self-Government Art 48.(i) As the Romans said, ‘excusatio non petita, accusatio manifesta’: am unrequired justification is proof of the alleged facts. As is well-known, the cross-border contacts between Albanians in Macedonia, Kosovo, and Albania are intense and they are certainly not prevented by provisions of this kind. The demonstration of such contacts is provided by the frequent political statements of the Macedonian government stating that the crisis was simply imported, brought on by foreign terrorists aiming at controlling parts of the territory and guaranteeing their revenues from cross-border smuggling of cigarettes, weapons, and other goods (see Ch 9). 20 See new Articles 114 and 115 of the Macedonian Constitution, regulating local self government. In particular, Article 114 of the Constitution provides that the law on local self-government is approved with a qualified majority, thus taking into consideration the aspirations of the two main ethnic groups. Article 115 lists the main competence fields for the local self-government (e.g., territorial planning, environmental protection, local economic development, local activities and culture, educa-

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and develop their identity and community attributes and to use their community symbols” (Macedonian Constitution Art 48), as well as its future implementation, may lead to a more flexible management of cross-border cooperation, possibly on a functional and not merely ethnic, base. However, these quite sharp provisions did not prevent the establishment of less formalized external activities, such as the establishment of the Lake-Ohrid Euro-region.21 In both Kosovo and Macedonia, the lack of or the existence of very limited provisions on external activities for sub-national entities or groups may be connected to the specific causes of the conflict, to the fears of possible secessionist movements, and, not least, by the absence of a clearly identifiable territory (organized as a sub-national territorial entity) where the communities are settled. Given the difficulties for such groups to engage in external activities without the intermediation of a territorial self-government organization, it is quite clear that provisions allowing external relations are very poor. Nonetheless, the present legal situation could be sufficient to implement some such relations at some point in the future when the overall inter-community relationship has normalized and effective cooperation procedures can start working. To date, some proposals have been elaborated in this regard and some first steps are being undertaken to include these countries in cross-border activities.22 C

Explicitly Mentioned External Relations

1 Cases In Bosnia and Herzegovina (BiH), the general power in the field of “foreign policy” (and “foreign trade policy”) is vested with the central government (BiH constitution Art III.1 lit. (a-b)). However, the two entities (Federation of Bosnia and Herzegovina and Republika Srpska) do have “the right to establish special parallel relationships with neighbouring states” (BiH constitution Art III.2 lit.(a)), although these relationships shall be “consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina” (BiH constitution Art III.2 lit.(a)), and these activities are subject to the respect of the general principle of fair cooperation.23 The entities made use of the enabling provision in concluding trans-border agreements with the ‘motherlands’ of Serbia and Croatia (also going beyond mere CBC-activities). The decision-making arrangements of the central state institu-

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tion, etc.), all showing a high potential to be managed also by means of CBC forms in the case of municipalities located on the border. This new Euro-region is, however, still only on paper. See http://www.alb-net.com/ pipermail/albsa-info/2002-November/003273.html; and http://www.stabilitypact. org/newsletter/nl-18.html. For example, US Institute of Peace 2002. For some running examples, see East-West Institute 2002; East-West Institute 2003. Article III.2 lit. b BiH Constitution: “Each entity shall provide all necessary assistance to the government of Bosnia and Herzegovina in order to enable it to honour the international obligations of Bosnia and Herzegovina.”

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tions (requiring the consent of the three constituent peoples for each policy decision) was also used in order to undermine the power of the central government, as Serbs and Croats preferred to block the decision-making in international relations at the central level and rather to exercise it at the entity level. The real counterbalance to this ethnically-driven, factual implementation of the entities’ foreign policy has been the degree of intervention by the international community (making Bosnia a quasi-protectorate) (Bieber 2004; Woelk 2004), much more so than the formally wide central power in the field of foreign relations. Moreover, in order to avoid possible troubles, especially with the international community, most of the external relations have been carried out as a matter of fact on an ad hoc basis rather than on the basis of formally concluded agreements, regardless of the entities treaty-making power (BiH Constitution Art III.2). For this reason, it can be affirmed that most of the external activities of sub-national units of BiH are based on factual cooperation with the ‘motherlands’. Nevertheless, it must be stated that more recently the central government has signed a considerable number of international agreements, even in areas that are particularly sensitive for the ethnic groups.24 This demonstrates an increasing role for the state institutions in this respect. In a more normalized situation, the treaty-making power of the entities (and, more generally, their power to engage in different kind of external relations) could be used as an additional, integrative, cooperative legal instrument to complement the foreign-policy power vested in the state authorities, as is common practice in federal countries such as Germany, Belgium, Switzerland, or Austria. In Gagauzia, a sort of recognition of cross-border powers is also provided, although almost exclusively by means of mere participation of Gagauz representatives in the state’s activities instead of forms of direct action. According to Article 12, al. 3b of the 1994 Law on the Special Legal Status of Gagauzia, its representative authority – the People’s Assembly – shall have the power, among others, to participate “in the implementation of internal and external policy of the Republic of Moldova connected with the interests of Gagauzia.” Such participation practically consists of the mere inclusion of Gagauz representatives in official delegations without granting them a special right to influence the final position of the Moldovan delegation. In addition, Gagauzia has established formal relations with Turkey, Transdniestria, Belarus, and the Odessa oblast in Ukraine (Järve 2004), and has special ties with Turkey.25 Arguably, due to the overall situation, 24 Such as the numerous agreements with foreign states in cultural matters (e.g., with Germany, Sweden, France, Italy, etc.), and particularly with other former Yugoslav states. See, for example, the agreement with the Republic of Croatia on cooperation in the fields of science, technology, and higher education. The same goes for other delicate matters such as economic issues. See the Free Trade Agreement between Bosnia and Herzegovina and the Republic of Croatia (Official Gazette of BiH, 35/00). 25 For example, in 1993 Turkey opened a joint university named ‘1993’ and Turkey also opened the “Gagauz-Turkish School.” This is due to the fact that the Gagauz language

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the implementation of these provisions is still limited, but the existence of a quite solid legal basis leaves many openings for the future. Moreover, Article 17 of the same law stipulates that the Executive Committee (the executive body of Gagauzia) has, among others, the competence to regulate “in conformity with the law, on the whole territory of Gagauzia, … the management of economy, social and cultural development, … environmental protection and the rational use of the natural resources.” Such a clause could turn into an implicit-power clause for the management of the community’s own interests, and thus could be used as an instrument for the implementation of cross-border activities (where necessary to pursue the indicated goals). This has been the case in many other areas where the sub-national entities were not vested with any explicit permission to engage in cross-border activities (but at the same time there was no explicit denial of them), such as in Spain, Italy, and even France, as it is typical of the very first phase of developing external relations of sub-national units in previously centralized states. Additionally, the Law on the Special Legal Status of Gagauzia provides for an extreme (and merely theoretical) guarantee to the territory in terms of external relations: In case of the union of Moldova with Romania (which has been excluded by the Romanian authorities), the law confers to Gagauzia the right of external self-determination and thus the right to separate from Moldova. Being an organic law, however, it can be changed by the Moldovan parliament under a special procedure of qualified majority of 80% of the members of parliament. For our purposes, Bougainville represents a very interesting case where external relations are concerned. Being an island, there cannot be any proper CBC activity. Nor is there the possibility of autonomous international relations, at least as long as the island remains under Papua New Guinea’s sovereignty, which implies the exclusive national power for engaging in international treaties.26 Nevertheless, the 2001 peace agreement (BPA) provides for some special rules in the fields of technical assistance from foreign states and for the establishment of mechanisms for consultation of Bougainville “in agreed areas of foreign affairs” (BPA Art 69). Bougainville can be allowed by the National Executive Council to “send a representative or observer to regional meetings and organizations” (BPA Art 70), although at its own costs (BPA Art 72), which in fact could practically impair the effectiveness of the provision considering the economic situation of the island. Moreover, where international agreements stricto sensu are concerned, a representative of Bougainville can be included in the national delegation “to regional meetings and organizations of clear special interest to Bougainville” (Article 71 BPA) and the autonomous government can request to participate or even to “engage directly in the negotiation of international agreements of particular relevance to Bougainville” (BPA Art 73). Bougainville may also play a significant role belongs to the same language family as Turkish. See Bowers et al. (2002). 26 See also Article 74 of the 2001 peace agreement: “the autonomous Bougainville government will respect the national government’s authority regarding international agreements.”

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in international relations with its kin state, the Solomon Islands: the autonomous Bougainville government has a permanent representative in national delegations “engaged in the negotiation of new border agreements with Solomon Islands” (BPA Art 77). However, in light of what has been argued here (internal cooperation mechanisms as the real legal foundation of external relations), other, apparently more general, provisions seem even more important in practice than those specifically mentioned ones. According to the overall provision of Article 68 BPA, “the national government and the autonomous Bougainville government will establish agreed procedures to give effect” to the agreement. The safeguard of autonomy against unilateral changes by means of the treaty-making power of the national government is provided by Articles 75 and 76 BPA. According to the first of these, “an international agreement negotiated or signed with a purpose of altering the agreed autonomy arrangements will take effect only with the agreement of both the national government and the autonomous Bougainville government” (emphasis added). The latter article states that if a disagreement arises between the national government and Bougainville’s autonomous government “as to whether an international agreement has been negotiated or signed with such a purpose, the matter will be resolved through the agreed dispute resolution procedures.” Furthermore, Article 78 BPA completes the guarantee by affirming that “future border agreements (other than those concerning defence or national security aspects) which affect the jurisdiction of the autonomous Bougainville government will take effect only by agreement between the national government and the autonomous Bougainville government.” This rather progressive arrangement, when compared to other conflict settlement agreements, is inspired by the logic of overcoming the majority-minority positions, stating the principle of equal standing of the involved parties (national and autonomous government) and thus the obligation to negotiate where the interests of the minority are concerned, with particular regard to external relations. It can be said that the BPA extends (at least potentially) power-sharing arrangements to the field of external relations, founding the necessary cooperation on a paritarian base between the state and the autonomous entity. As long as such a cooperative framework can be established and maintained, this legal picture fits perfectly into the principles previously mentioned for an effective management of external relations. The difficulties in this regard could emerge where the legal guarantees for the effective implementation of the cooperative rules are concerned. Many of the clauses safeguarding the paritarian principle in the relationship of the two governments, and particularly regarding external relations, need practical implementation and, above all, interpretation. The possible weaknesses of the entire system may lie not in the provisions but much more in the mechanisms aimed at resolving possible conflicts of interpretation, particularly in the lack of a general interpretation power attributed to an impartial judicial

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body.27 In this regard, it can be stated that the main guarantees of Bougainville’s considerable powers in external relations matters are still more of a political than legal nature, although the system is legally quite sophisticated and founded on cooperation, which is per se a pr-condition for success. The most relevant example of an entrenched and legally well-developed system of external relations as an instrument for peaceful conflict settlement is provided by Northern Ireland. The Anglo-Irish agreement of 1985 already provided for cross-border cooperation on security, economic, social, and cultural matters (Art 9). Extensive cross-border cooperation was envisaged as an essential tool in the compromise found with the Good-Friday-Agreement of 1998 (GFA), also called the Belfast agreement. The 1998 agreement provides for a bundle of joint bodies that shall not only allow but even encourage the inter-communal relationship. In this sense, one can argue that Northern Ireland is the only case where CBC is not simply tolerated but imposed, on the assumption that it facilitates the establishment of a peaceful culture. In other words, CBC in Northern Ireland is one of the core mechanisms of the peace agreement. It is an objective per se and not merely an instrument to pursue other goals. The first CBC body based on forced cooperation among the parties was the North-South Ministerial Council, a body that brings together ministers of the Northern Ireland government and the government of the Republic of Ireland. They meet in plenary session twice a year, and more often in smaller groups to discuss technical issues. The intention of the agreement in establishing this body was precisely to resolve possible disagreements by means of technical discussions on matters of common interest, which is itself the basic idea underlying CBC in ethnically tense areas. The decisions should be implemented by cross-border implementation bodies dealing with an open list of possible subjects, from agriculture to education, from environment to tourism. Another CBC body established by the agreement was the British-Irish Council, where the governments of the two states (UK and Ireland) and the devolved governments of UK (including Northern Ireland) meet. These institutions did not properly function yet, not even in the (relatively short) time when the devolved authorities were not suspended. Again, a frequent misunderstanding (or misinterpretation) of these forms of cooperation has led to the fear of the unionist community that they might constitute a first step to the reunification of Ireland.28 In such a context, as stated before, CBC cooperation

27

28

Articles 265 and followings of the agreement only provide for a dispute settlement through mediation or arbitration, and eventually through courts, without specifying more on this crucial aspect. Nevertheless, the safeguard clause laid down in Article 268 BPA, which prescribes that “the national government will not have the power to withdraw powers from the autonomous Bougainville government or suspend it,” seems of vital importance. For cross-border cooperation and consociational democracy in Northern Ireland, see McGarry 2003; O’Leary 2001. See also Alcock 2003 30–31).

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loses its very essential feature of being concrete and de-ideologicized, and, in the absence of this precondition, CBC is bound to fail. 2 Legal vs. Political Guarantees? The agreements described here differ profoundly from one another in terms of substantive external relation powers. Perhaps more critical than the assignment of external affairs power, however, is their entrenchment at the constitutional or international legal level. Moreover, even if the grant of authority is firmly established, a dispute settlement mechanism is crucial. As a subordinate entity will generally be subject to the overall constitutional order of the state (encapsulated in the power-sharing settlement), the central authorities may normally be expected to prevail in cases of conflicts of authority. Exceptionally, where a highly decentralized system has been adopted (for example, Bosnia and Herzegovina), the centre may have little power to constrain an excess of foreign affairs powers by the constituent entities. Hence, it would be important to ensure that conflicts over the exercise of this authority are resolved according to an objective legal process – generally a constitutional court. In some of the cases reviewed here, the power to address clashes of competence may be assigned to an international agency. One further exceptional example is provided by the Good Friday Agreement for Northern Ireland. Although this agreement is based on the forced cooperation of the two communities on CBC as one of the main goals of the whole peace process, if the involved parties fail to cooperate properly the final decision is not taken by an impartial judicial body. Actually, the British government, as one of the involved parties, has the final say on the suspension of the local institutions, the decision being political and not justiciable in a court. As is well known, the British government has already suspended the Northern Ireland institutions several times after claiming that the obligations regarding decommissioning have failed or not been met. In turn, as the effective exercise of external powers of any kind by sub-national entities or groups is dependent on the effectiveness of the domestic cooperation procedures, the lack of legal guarantees might turn out to be positive when it comes to establishing a web of external relations ‘in the penumbra’ of formal provisions, i.e., below the level of formalized activities. This might be quite useful in a first phase of confidence-building between central authorities and autonomous entities, allowing the state to realize that sub-national external powers are not necessarily a threat to national integrity, and the autonomous territories or communities to become aware of the convenience of cooperation. However, after such a first, experimental phase, when sub-national external activities tend to become the rule and not an (at best tolerated) exception, the interest of territories and groups shifts from being left alone to being safeguarded in their prerogatives. And since the role of the central power will always prevail in these areas (because of the very broad range of the realm of concepts like foreign policy, national security, etc.), in case of disagreement the sub-national claims do not have any chance to be affirmed but in a legal litigation before a court based on the principle of the rule of law.

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In other words, the lack of legal guarantees for cooperative instruments can be a permanent threat to the effectiveness of the arrangements laid down in the various peace agreements. A cooperation imposed by law but guaranteed merely by political means runs the risk of being built upon an unstable base, especially in areas where the conflict is quite recent and the parties have not yet developed the required trust to freely rely on cooperative mechanisms. Of course, legal guarantees cannot be considered a panacea, particularly in the field of external relations. As the external relations of sub-national entities are dependent on procedures of (internal) cooperation, the required cooperative environment cannot be established through judicial decisions alone. However, a judicial body in charge of the settlement of disputes with respect to these cooperation procedures would appear to offer significant guarantees, reducing the mere political discretion and acting as a counterweight to dominant political power, power that is usually vested with the centre. IV Concluding Remarks External relations, especially when carried out by minority groups or their representative self-governments, are highly symbolic and thus risk neglecting the functional utility of such relations in favour of the ideological. This is particularly true in the case of recently settled conflicts, where the parties still lack mutual trust. However, this chapter has demonstrated that the procedural mechanisms – as the essence of these relations – must be based upon cooperation between the central government and the minority group(s). Therefore, the more symbolic or ideological the relations between the state and the minority (or their representative self-governmental unit), the less efficient these mechanisms, as they would tend to emphasize the differences between the parties and hence not foster cooperation and acceptance. In simple terms, it can be said that it is the primary interest of the minorities to promote cooperation with the central authorities, and external functional activities are one of the most crucial experimental fields in this regard. It follows then, that only mature autonomies can establish efficient procedures for entering into external relations, because only stable systems are able to cooperate – not only with neighbouring territories, but, above all, with central authorities – which is the most important precondition for effective external relations. This is most evident where the guarantees attached to the whole machinery are basically of a political instead of legal nature, as in most of the cases analyzed here. Moreover, the more stabilization, democratization, and avoidance of the conflict (including reference to symbols of the conflict), the more effective the cooperation, and, consequently, the external activities. In some of the case studies, this trend becomes more and more visible, as demonstrated by the increasing number of CBC activities in Southeastern Europe, especially in the Balkans.29 29 For an updated list of the ongoing and planned projects (including Euro-regions), see http://www.iews.org/programs/projects.cfm?title=Projects&l1=Programs&l2=R

22  ‘Bridges’ in Self-determination Disputes? External Relations of Sub-national Entities and Minority Groups

In post-conflict situations, external activities by sub-state units offer a modern, flexible, and, thus, very attractive tool for general reconstruction or economic improvement. Nevertheless, horizontal forms of cooperation across borders do not only require a favourable regional context (especially by cooperation of the states the entities belong to) but also a cooperative culture within the state as well as inside the cooperating entity. Where mutual trust and cooperation are lacking, a cross-border project can easily become (or at least be considered) a threat to internal stability, and thus be easily and legally blocked by the central governments. It is particularly important to stress that functional, effective forms of cooperation across the borders can only work properly in a democratic context in which the rule of law is established and human rights are effectively protected. Moreover, this appears to fit into a general tendency towards more functionally oriented forms of governance. The allocation of powers and functions is moving to a system of distribution of powers that is determined by functional streams (economy, efficiency, etc.). This not only explains phenomena such as cooperative federalism (and regionalism) but also supranational forms of cooperation.30 In the context of external relations of minority groups, supranational cooperation and integration by generating trust and confidence between the states proves to be a guarantee against fears of ‘revisionist activities’ that might endanger sovereignty. Procedures and institutions of external and cross-border cooperation do not constitute a new level of governance but provide (additional) horizontal links by more closely interconnecting existing entities according to functional criteria. Their acceptance depends primarily on the concrete advantages for the citizens. Thus, from a long-term perspective, effectiveness becomes the main evaluation criterion, slowly substituting the ‘mere’ enhancement of ethnic claims. Their integration into the existing institutional frameworks as complementary elements is in obvious contrast to the idea of (re)building institutions exclusively along ethnic lines. Moreover, the functional criterion should not only be seen as paying attention to concrete rather than ideological or symbolic issues but also as a means of fostering traditions and identities within and across the borders, thereby reducing the disadvantages of permanent minority positions by opening a broader context.31 For these reasons, a certain degree of ‘institutional maturity’, a realized climate of trust, mutual information-sharing, and cooperation between the central state and the sub-national entities and/or groups seem to be the very pre-conditions for external activities, given that the issue of borders still remains a sensitive one. States that see their sovereignty questioned by secessionist tendencies will hardly egional%20and%20Transfrontier%20Cooperation%20%28RTFC%29&l3=Projects. 30 The European Union, with its functional approach and the oft-quoted principle of subsidiarity, provides a formidable example of this tendency towards the establishment of multi-level governance. 31 This seems to be the underlying idea of Articles 17 and 18 of the FCNM, as discussed above.

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promote cooperation that create links across their borders. This is especially so where there is a weak or non-existent legal guarantee of the mutual obligation to cooperate between the state and the territorial or minority entity. On the other hand, the more these activities are driven by functional, and not explicitly ideological aims, the more their adoption can contribute to the establishment of a cooperative environment. External activities are thus procedural instruments with a high potential for development and for de-escalating ethnic conflict. But their effectiveness requires initial goodwill from all the involved parties and the establishment of legal guarantees to prevent non cooperative behaviours on the part of the involved parties.

Part Five Conclusions

Chapter 23 Conclusion Power-sharing Theory: Lessons from the Complex Power-sharing Project John McGarry

Power-sharing theory has been closely linked in recent decades with consociational theory. The central idea in consociational theory is that if ethnically, religiously, or linguistically-divided polities are to enjoy political stability, segmental leaders must share power. Consociationalists believe in the potential of statesmanship. They think that segmental leaders can engage in the politics of compromise, and persuade their followers to follow suit. Consociational theory was developed in the 1960s, in response to the dominance of pluralist thinking, which held that political stability required cross-cutting social cleavages, and which gave less weight to political will and acumen. Consociationalists assume that identities in segmented societies are resilient, and not susceptible to short term transformative (integrationist or assimilationist) enterprises, although they do not necessarily endorse diversity as a priori desirable, or think that these identities are primordial and fixed. Consociational theory is inescapably associated with the Dutch political scientist, Arend Lijphart, whose work developed from a study of his native Netherlands, and from comparative work on Belgium, Switzerland, and Austria (Lijphart 1968; 1977). However, many others have espoused consociational ideas, including Lewis (1965), Nordlinger (1972), McRae (1974), and Lehmbruch (1993), and consociational theory has been applied to different polities in all parts of the world. Lijphart’s contribution has been such that he was elected President of the American Political Science Association in 1996. Consociational theory is now one of the most influential theories in comparative politics. Consociational theory is also widely criticized. Most criticisms are from an integrationist perspective, which sees identities as malleable rather than resilient, and which is distrustful of power-sharing among segmental elites. Integrationists believe that agreements among segmental elites are likely to be unattainable or unworkable. Agreements that are attained, it is argued, are likely to be counterproductive, as they allocate political resources to elites who have an interest in maintaining division.

Marc Weller and Barbara Metzger (eds.), Settling Self-Determination Disputes: Complex Power-Sharing in Theory and Practice © Koninklijke Brill NV. Printed in The Netherlands. isbn 978 9004 16482 6. pp. 691-719

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Consociations are also seen as lacking central democratic virtues: because all segments are included in government, there is allegedly no democratic opposition to hold the government to account or to pose as an alternative government (Brass 1991: 339). Integrationists seek to bypass or constrain segmental elites in various ways. ‘Bottom-up’ social transformationists demand that they be challenged by those in civil society who are committed to integration: particularly trade unions, civic associations, and non-segmental political parties (Taylor 2001: 47; Bew and Patterson 1990: 217; see also Bew and Patterson 1985: passim). Legal integrationists seek to constrain ethnocentrism through bills of rights and human rights codes. The prominent American political scientist Donald Horowitz offers an ‘integrative’ version of power-sharing as an alternative to consociation. Horowitz’s central conflict-regulating device is the alternative-vote electoral system in heterogeneous constituencies. It, in Horowitz’s view, requires politicians to pool votes among different groups in order to win seats, which induces them to moderate their politics. Vote-pooling promotes power-sharing because it facilitates interethnic coalitions of moderates. According to Horowitz and his supporters, such integrative power-sharing coalitions are more likely to work than consociations because their members are more likely to compromise. As rational politicians normally opt for minimum-winning coalitions, they are also more likely to allow for democratic oppositions. In this chapter, I discuss the extent to which the Complex Power-sharing Project enhances our understanding of power-sharing theory. Part One discusses what consociationalists can learn from the project, while Part Two discusses what integrationist critics of consociation, including those who support integrative power-sharing, can learn. I

Lessons for Consociationalists

Many of the early prominent consociational theorists, including Lijphart and Nordlinger, developed their understanding of power-sharing from a study of the small western European democracies of the Netherlands, Belgium, Switzerland, and Austria. Their work was developed between the 1960s and 1990s. These two facts help to explain three gaps in traditional consociational theory that are laid bare by the complex power-sharing project. A

The Neglect of a Positive Role for Outsiders in the Generation, Implementation, and Operational Maintenance of Power-sharing Settlements

Conventional power-sharing theory is overly ‘endogenous’ or ‘internalist’; it has tended to treat states and regions as if they are sealed entities, relatively immune from exogenous forces. This has produced two related problems. First, there has been a tendency to downplay the importance of outside factors both when explaining how power-sharing settlements emerge, and when seeking to engineer

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their creation. Of the much debated nine factors initially listed by Lijphart as conducive to a consociational settlement, eight are endogenous (Lijphart 1977: 53-103). According to Lijphart, if a state’s warring factions perceive a common threat from an external source, this will increase the prospects of internal solidarity. The focus on this sole exogenous factor stemmed, arguably, from Lijphart’s focus on Belgium, the Netherlands, Switzerland, and Austria, all of which have been threatened by larger neighbours and have had at least partially consociational agreements during their recent histories. He may also have been influenced by Lebanon, another of his favourite case studies, and one where consocation was also facilitated by an external threat. Lebanon’s ‘pact national’ in 1943 arose from a united desire on the part of the Lebanese to free themselves from the French. As a corollary, Lijphart argued that external intervention that was one sided could antagonize interethnic relations. Nowhere did he consider that outside forces could facilitate consociation by benign rather than malign intervention, for example, through mediation or by using incentives to induce or encourage rival parties to reach agreement. Lijphart’s view on the role of outsiders was shared by Nordlinger, who listed a desire to ward off external enemies as one of four crucial elite motives for power-sharing, but who explicitly omitted the inclusion of ‘reliance upon third parties as neutral arbitrators, mediators, or experts’ from his list of conflict-regulating practices. Such intervention, according to Nordlinger, was “rarely applied,” “generally ineffective,” or could be subsumed within his other categories (Nordlinger 1972: 32). Lijphart’s (and Nordlinger’s) focus on endogenous factors was, arguably, a reflection of the Cold War era in which power-sharing theory was developed. There was little evidence of benign intervention to consider. However, such interventions have been a prominent factor in the cases covered in this project. A number of different outside parties, including states, international organizations, and even prominent individuals played positive roles in promoting recent settlements, and in some cases were essential to the achievement of these settlements. The UN, EU, and OSCE were successfully involved in preventative mediation in Macedonia during the 1990s and, along with the USA, helped to mediate the Ohrid Agreement of August 2001. In Regan’s view, Australia and New Zealand played a ‘vital’ role in mediating a peace settlement in Bougainville in September 2001. In Northern Ireland, the government of the United States, and the former US Senate Majority leader George Mitchell, mediated successfully between na

 

The formal headings of these eight factors on their first elaboration were: (i) no majority segment; (ii) multiparty systems; (iii) small population size; (iv) appropriately structured cleavages; (v) overarching loyalties; (vi) representative party systems; (vii) geographical concentration of segments; and (viii) traditions of elite accommodation. Lebanon’s power-sharing arrangements imploded in 1975, largely because of malign external interventions. There was, then, nothing in Lijphart’s favourite case studies to suggest that external intervention could be positive. See Chapter 5.

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tionalists and unionists, and between nationalists and the British government (MacGinty 1997; Cox 1999). External mediators can contribute to agreements through providing good offices or by providing peacekeepers who create space for negotiations. They can also help instill confidence among weaker parties that negotiations will be meaningful and commitments delivered on. One important consequence of American diplomatic involvement in Northern Ireland was an increase in the confidence of Irish republicans about the merits of negotiations. Australia and New Zealand’s involvement as mediators in Bougainville appears to have had the same positive effect on nationalists there. In addition to mediating, outsiders may have resources that can be used to influence the calculations of internal parties. The European Union has used the card of membership to promote minority rights in a number of Eastern European countries. There is some evidence that this ‘conditionality’ has had a positive impact on the position of minorities, even in states like Macedonia, where the prospects for membership are long-term (Bernier 2001; Kelly 2003). The United Kingdom government was able to induce Northern Ireland’s unionists to sign the Good Friday Agreement by making it clear that the alternative was deeper cooperation with the Irish government in the governance of Northern Ireland (McGarry and O’Leary 2004). In extremis, external actors can use military force to bring rival parties to negotiations. When mediation failed to promote a settlement in Bosnia between 1991 and 1995, armed intervention by NATO prepared the way for negotiations at Dayton in 1995. Kosovo’s interim settlement in 2001 was negotiated against the backdrop of western military intervention. Afghanistan’s post-Taliban powersharing government was also a product of armed intervention, as was the broadbased coalition established in Iraq in the wake of the US-led invasion of March 2003. A second and related lacuna in traditional consociational theory is that it has neglected the possibility of a positive post-agreement role for outsiders, i.e., one that involves them both in the implementation and in the active operation of political settlements. In Macedonia, Mindanao, and Gagauzia, international organizations have monitored, variously, demobilization, decommissioning, elections, and human rights protections. In Northern Ireland, outsiders monitored the implementation of paramilitary decommissioning and policing reform. In Bougainville, Australia and New Zealand are to monitor the planned referendum on self-determination. External agencies have trained new police forces, and funded 



A 1994 document on the peace strategy, TUAS (reputedly an acronym for either Totally Unarmed Strategy or Tactical Use of Armed Struggle), was explicit about the importance of the American role, noting that “there is potentially a very powerful Irish-American lobby not in hock to any particular party in Britain or Ireland” and that “Clinton is perhaps the first US President in decades to be influenced by such a lobby” (MacGinty 1997: 34). For more on the role of international organizations in the case studies covered by the Complex Power-sharing Project, see Chapter 15.

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the integration of paramilitaries into normal life. More invasively, external representatives are present as experts or arbiters in several of the institutions established in Bosnia and Herzegovina and Kosovo, including Bosnia’s Supreme Court and Central Bank. Both polities are presided over by external High Representatives, and external agents are responsible for breaking political stalemates and for security. The recent UN plan for Cyprus (the ‘Annan Plan’) envisaged a central tie-breaking role for outsiders in the island’s supreme court. The fact that several of the relevant states are signatories to international human rights treaties also allows outsiders a role in monitoring and enforcing human rights protection. To highlight the positive role that outsiders have played in promoting and maintaining settlements is not to argue that such intervention is always rightheaded. In Bosnia, which approximates an international protectorate more than a sovereign state, outsiders may well have over-intervened. Local leaders have little responsibility. Arguably, they have reduced incentives to develop a politics of cooperation, as this carries electoral risks, and as outsiders are available to take unpopular decisions. The result, as one critic has put it, is a “faked democracy” (Chandler 2000). Since Northern Ireland’s Agreement, the British government has over-intervened on a number of occasions. Its decisions to suspend the Northern Ireland Assembly in 2000, 2001, and 2002, rather than call new elections, and to suspend the elections that were required by June of 2003, had a number of negative effects on the political process. The unionist leader, David Trimble, was encouraged to refuse to compromise with Sinn Féin, knowing that he could do so without facing voters. The British government’s decision to postpone elections was motivated by a concern that these would produce gains for radicals. However, the delay reduced the pressures on Sinn Féin to moderate, as the only way it could expand its support was at the expense of the more moderate nationalist party, the SDLP. Elections would have provided incentives for Sinn Féin to address unionists’ concerns about decommissioning and police reform, the two most divisive issues in Northern Ireland politics. Movement on these issues by Republicans would have made it easier for unionists to reciprocate. We should also be wary about arguments that there is a trend towards benign international intervention, particularly one that is irreversible. The location of interventions has been shaped by geopolitical and security considerations at least as much as normative arguments. Thus, while several of the minorities examined in this project have derived benefits from the attention of outsiders, others, such 

 

In addition to the High Representative, three members of Bosnia’s Supreme Court are from abroad. To ensure that Bosnia complies with the human rights standards in the Dayton Accords, there is an Ombudsperson appointed by the OSCE in consultation with the two entities and a Human Rights Chamber appointed by the two entities and the Council of Europe. Bosnia’s Commission on Return of Properties has three members who are appointed by the European Court of Human Rights, while the job of overseeing the return of refugees is the responsibility of UNHCR. For more details, see Chapter 21. For more details, see Chapter 4.

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as the Palestinians or Chechens, have not. While Ted Gurr has pointed to an emerging regime of benign intervention in the post-Cold War era (Gurr 2000), this has run up against countervailing pressures since 11 September 2001. In this new environment, states that have been successful in depicting minority rebels as terrorists have received a freer hand to resist their aspirations, as in Chechnya and Spain’s Basque country, while geopolitically fortunate groups (the Kurds) continue to reap benefits. B

Consociational Theory and Self-determination Disputes

Consociational theory developed from a concern with religious and class divisions in a number of European countries – the Netherlands, Belgium, Austria, and Switzerland (Lijphart 1977). It has neglected the particularity of self-determination disputes, i.e., those that involve ethno-national communities focused on contested homelands. Ethno-national minorities are usually described in the consociational literature as segments, ethnic minorities, ethno-linguistic communities, or territorially-clustered segments. A divided polity is usually equated with a ‘divided society’ or a ‘plural society,’ with the inference that it is a single society (or nation), albeit a divided one. The problems that this can give rise to can be seen from Lijphart’s otherwise masterly analysis of the Northern Ireland conflict (Lijphart 1975). Lijphart saw the two groups in conflict as ‘Catholics’ and ‘Protestants,’ and the basis of the cleavage as ‘religious,’ even though he was fully aware that the groups gave their support to ‘nationalist’ and ‘unionist’ parties, respectively (Lijphart 1977: 136; Lijphart 1975). He argued that the key difficulty was the absence of support for power-sharing among Protestants because they were capable of exercising hegemonic power alone, and because they were disposed to Westminster majoritarian practices rather than continental power-sharing norms (Lijphart 1975: 100). This analysis was accurate, but limited. It overlooked the fundamental fact that Northern Ireland’s Catholics, as Irish nationalists, were also opposed to internalist power-sharing within the United Kingdom. Radical Irish nationalists (republicans) wanted national self-determination and a complete withdrawal of the British state from Ireland, whereas moderate nationalists wanted any consociation to be internationalized, i.e., to have a linkage to Ireland, and a role for the Irish government. Even if unionists had proposed a consociation, then, it would have been insufficient for Irish nationalists. Moreover, a key reason why unionists opposed a consociation was because they were British nationalists who were profoundly concerned about Irish nationalists’ insistence on links with Ireland. They also had no incentive to share power for most of the period after 1972, since the default option was direct rule from Great Britain, their preferred nation-state. An 

Lijphart’s masterpiece is entitled Democracy in Plural Societies, while Nordlinger’s book is entitled Conflict Regulation in Divided Societies. For both of them, a single polity is seen as comprising a single society, rather than two or more societies, which is how ethno-national minorities would see it

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agreement was reached in 1998 only because, as will be explained, it addressed this self-determination dispute in a way that satisfied the minimal requirements of both camps.10 One consequence of the failure to distinguish the needs of ethno-national communities is that the emphasis in consociational theory is on who should exercise power at the level of the central government, when the emphasis in selfdetermination disputes is on how much power should be exercised by the central government – and about whether there should be one or more central governments (i.e., about whether there should be one or more states). While Lijphart acknowledges that minorities should have autonomy as well as power-sharing, Nordlinger refused to consider autonomy, because he feared it would lead to secession (Nordlinger 1972: 31).11 He was also concerned that, because autonomous regions would be invariably heterogeneous, autonomy would allow the region’s “dominant segment to ignore or negate the demands of the minority segment” (Nordlinger 1972: 31-32). These views on autonomy for minorities are virtually identical to those held by integrationist opponents of consociation.12 Many of the settlements in the Complex Power-sharing Project have depended on the self-determination dimension being squarely addressed. They have diluted the sovereignty or the unitary nature of the state in ways that were not anticipated by traditional consociational theory. In several of the recent cases, the main focus has been on crafting autonomous institutions to allow ‘internal’ self-determination, and not on power-sharing within the central government. This is true of the settlements in Bougainville, Gagauzia, and Mindanao. In all three cases, moreover, the provisions for autonomy are asymmetrical, i.e., they have been conceded only to the ethnic minority and not as part of state-wide arrangements.13 Asymmetrical autonomy is in particular tension with the notion of a nation-state, as it suggests that the beneficiaries have a special status that distinguishes them from the rest of the state’s population. Even in Bosnia, where there are intricate provisions for power-sharing at the centre, the emphasis in the Dayton settlement is on autonomous institutions for Serbs, Bosniaks, and Croats. The state of Bosnia is a highly decentralized federation of two ‘entities,’ Republika Srpska and the Federation of Bosnia and Herzegovina. The Federation of Bosnia and Herzegovina is, in turn, also decentralized, 10 11 12

13

Also see Chapter 4. Nordlinger, like Lijphart, does not use the term ‘national minorities’ or ‘minority nations,’ or even ‘ethno-national’ to refer to minority groups that are territorially concentrated and that seek self-determination. The bias against minorities is clear enough. It does not seem to have occurred to Nordlinger that the state as a whole is a territorial unit in which minority demands could be ignored or negated, or that concerns about minorities within autonomous regions could be managed in the same way that he suggested for majority-minority relations in the state, i.e., through power-sharing. This is one of the differences between the 2001 settlement in Bougainville and an earlier unsuccessful settlement in 1976.

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with most powers held at the level of its ten, relatively homogeneous, cantons. In the case of Northern Ireland, Irish nationalists have been given substantial autonomy, albeit within the context of a regional power-sharing government rather than one that is under the control of their community. In some of the cases covered in this project, where a minority in one state has national kin in a neighbouring state, steps have been taken to foster cross-border linkages. This is a dimension that is missing from traditional consociational theory, which is focused on prescriptions within discrete sovereign states. In Northern Ireland, agreement required provisions for ratificatory referenda in both parts of Ireland, as well as the establishment of a number of inter-state political institutions. The most novel of the inter-state institutions was a North-South Ministerial Council (NSMC), a body nominated by the Irish Republic’s government and the new Northern Ireland premiers. The Agreement also established the BritishIrish Intergovernmental Conference (B-IIGC), the successor to the Intergovernmental Conference established under the Anglo-Irish Agreement. The B-IIGC guarantees Ireland’s government access to policy formulation on all matters not – or not yet – devolved to the Northern Ireland Assembly or the NSMC. In the event of the collapse of the agreement, it will resume the all-encompassing role its predecessor had prior to 1998.14 Ireland’s cross-border institutions are the most radical to be found in the recent peace settlements. They are not only radical in their scope and formal nature, but in their raison d’etre: they exist primarily to respond to the self-determination dispute at the heart of its conflict rather than to achieve some functional benefit. Cross-border links have been frowned on in other cases, including Macedonia and Kosovo. However, Bosnia and Herzegovina’s two entities, the Federation of Bosnia and Herzegovina and Republika Srspka, have used powers extended to them under the Dayton Accords to conclude external confederal agreements with Croatia and Serbia, respectively.15 Bosnia and Herzegovina’s central government has also signed agreements with other Yugoslav states, including Croatia, on cooperation in matters that are sensitive to its ethnic communities, including higher education, science, and technology.16 Bougainville is now entitled to a 14

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The final and weakest inter-state institution was a British-Irish Council, included at the insistence of unionists, in which the Irish and British governments meet with the governments of the various devolved legislatures in the United Kingdom. It has been suggested that, in the event of a united Ireland, the British-Irish Council could develop to perform for unionists the role that the NSMC is intended to perform for northern nationalists, i.e., it would allow them to maintain links with their national kin across the new state frontier. Dayton mandated that the use of these powers should be consistent with Bosnia and Herzegovina’s sovereignty and territorial integrity, and Bosnia’s international overseers have been careful to ensure that they are not abused in a way that ends up dismantling the state. See Chapter 22.

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permanent representative in Papua New Guinea’s delegation to its kin state, the Solomon islands, which deals with new border agreements. Even where crossborder links have not been included in initial agreements, as in Macedonia and Kosovo, there have been subsequent proposals and exploratory steps towards establishing them.17 In the UN Plan for Cyprus, Cyprus is required under Article 16 to maintain “special ties of friendship” with both Greece and Turkey. Its component states are permitted to conclude agreements on cultural and economic matters with other states “provided that such agreements do not cause prejudice to Cyprus, the authority of the [common state] government, or the other [component state], and are compatible with the European Union membership of Cyprus”. Beyond autonomy and cross-border links, some recent agreements have supplemented autonomy arrangements with other provisions that recognize, at least implicitly, the bi- or multi-national character of the state. Sometimes there is legal or constitutional recognition that the minority constitutes a distinct people or nation. The Preamble to the Law on the Special Legal Status of Gagauz states that the law has the aim of “satisfying the national needs and preserving the identity of the Gagauzes”. Article 4 of the Bougainville Peace Agreement includes as one of the objectives of autonomy, the “expression and development of the Bougainville identity”. After its Framework Agreement, Macedonia altered its constitution to give its “communities” the “right to establish institutions for culture, art, science and education, as well as for scholarly and other associations for the expression, fostering and development of their identity”. While Macedonia has not provided substantive autonomy to minorities, its Framework Agreement allows local authorities “to place on front of local public buildings emblems marking the identity of the community”.18 Kosovo’s Rambouillet Agreement, which was superseded by NATO’s military intervention in 1999, provided for its “national communities” to be able to “preserve and express their national, cultural, religious, and linguistic identities”.19 In several cases, including Bosnia and Herzegovina, Kosovo, Macedonia, and Mindanao, recent accords have taken traditional positions in defence of the state’s sovereignty and territorial integrity. However, in three other cases, they have acknowledged the minority’s right of self-determination, including its right to secede, albeit under carefully specified circumstances. In the Law on the Special Status of Gagauzia, the “people of Gagauzia” have been extended “the right of external self-determination” in the event of a change of status of the Republic of Moldova, i.e., its union with Romania.20 The Bougainville Peace Agreement provides for a ‘referendum on Bougainville’s future political status’ to be held within

17 18 19 20

Ibid. See Chapter 21. Rambouillet Agreement, Art VII. Art 1(4).

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ten to fifteen years, with one of the choices “independence for Bougainville”.21 The Agreement makes the holding of the referendum dependent on “good governance” on the part of the Bougainvilleans, and gives a veto on the wording of the question and final decision-making authority (post-referendum) to the national parliament of Papua New Guinea. In Northern Ireland’s agreement, the signatories, including the UK government, accept the right of “the people of the island of Ireland by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland”.22 In Jackson-Preece’s view, these various provisions “represent a considerable departure from previous international practice in the area of minority rights and self-determination”.23 These prescriptive arrangements – asymmetrical autonomy; cross-border linkages and institutions involving sovereignty-pooling; constitutional recognition of peoplehood; and, in some cases, a qualified right to secede – are specifically addressed to self-determination disputes. They blur sovereignty in a number of ways that are at odds with the classical independent and autarkic state associated with traditional consociational theory. This gap is worth noting, as virtually all recent violent conflicts have involved self-determination claims. No recent conflict, in fact, has been ended by power-sharing alone, although some, such as Macedonia’s, more closely reflect traditional consociational arrangements than others.24 C

Consociational Theory and Transitions from War to Peace

Consociational theory developed from the study of relatively peaceful western European democracies. This may explain why consociationalists have given little attention to the special difficulties faced by territories undergoing transitions from war to peace. Consociationalists have focused narrowly on the design of political institutions, including executives, legislatures, and electoral systems. In 21 22

Bougainville Peace Agreement Art 309-310. Unionist defenders and republican critics of the Agreement correctly point out that this recognition of the right to self-determination is qualified, i.e., it is at odds with the traditional republican view that the right be exercised within a single all-Ireland unit on a majoritarian basis. Nevertheless, the recognition of Ireland’s self-determination in this qualified manner represented a major concession by the UK government. It is the basis for the argument that the Agreement’s institutions rest on a joint Irish act of self-determination rather than the revisable will of the Westminster parliament, and the basis on which nationalists reject the legality of the UK’s postAgreement unilateral statutory enactment and use of suspension powers. 23 See Chapter 21. In Sudan, an agreement finalized in January 2005 gave the South the right of secession after six years. 24 Only in Macedonia is there no provision for substantive autonomy, although the Albanian minority exercises municipal self-government.

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

violently divided polities, however, agreement on such institutions is unlikely to be enough to secure stability. It is difficult to conceive, in fact, of these institutions being accepted at all, or lasting, unless there is also a viable peace process that builds confidence and all round security. If there is to be stability in post-conflict polities, we have to consider prescriptive arrangements that address transitions from conflict, measures that complement but stretch beyond the consociational emphasis on political institutions. The Complex Power-sharing Project, which addresses settlements in violently divided territories, allows us to identify the sort of issues that are typically central to peace processes, the difficulties they give rise to, and some ways to deal with them. The issues include: • Reform of the police and security forces; • The handling of paramilitary offenders; • Decommissioning of paramilitary weapons, and the dissolution of paramilitary organizations; • Demilitarization; • Transitional justice processes (e.g., truth commissions); • Return of exiles; • New human rights protection mechanisms/repeal of emergency laws; and • Monitoring of ceasefires. Often, agreement requires more than power-sharing or autonomy. Paramilitaries that have not been defeated may insist on additional measures, such as leniency for paramilitary offenders, an overhaul of the security sector, demilitarization, and measures to protect human rights. In Bougainville, convicted prisoners were pardoned. In Northern Ireland, it was decided to release prisoners on licence, which meant that they could be re-incarcerated if they re-offended. The issue of how to deal with paramilitaries who had offended but not been caught also had to be faced in both cases. In Bougainville, there was a general amnesty for all offences committed in relation to the conflict. In Northern Ireland, so-called ‘on the runs’ (OTRs) were allowed to escape incarceration, providing they went through a formal trial process. Reforms to security services, particularly the police, are another frequent priority for rebel groups. In Bougainville, the agreement provided for the withdrawal of Papua New Guinea’s army and its police riot squads from the island, and limits were placed on their future deployment. Bougainville was permitted to establish its own separate police force. In Mindanao, provisions were made to integrate MNLF paramilitaries into the army. Such integration serves two important purposes: it provides a role and employment for former paramilitaries who might otherwise be inclined to subvert the peace process;25 and it facilitates a more representative army (or police), thus helping to address the minority’s secu25

Rothchild argues that it was an insufficient international commitment to funding the integration of paramilitaries into a productive life that helped to account for the breakdown of peace in Liberia in 1995. Rothchild 2003: 11.

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rity concerns. In Northern Ireland, the inclusion of radical provisions for police reform was vital to acceptance of the agreement by nationalists. The parties to the negotiations agreed to hand the issue over to an independent commission, and to give it terms of reference that included a commitment to a police service that was representative of the population, nationally impartial, human rights observing, and routinely unarmed. Northern Ireland’s agreement also contained a general commitment to demilitarization, i.e., the scaling down of British troop numbers and fortifications. Those defending the status quo, on the other hand, will be unlikely to agree to a settlement unless there are reasonable guarantees that their opponents are committed to peace. They typically insist on the decommissioning of paramilitary weapons, and often on the disbanding of paramilitary organizations. Nor is it simply a matter of denying paramilitaries the use of such weapons: there are also concerns that these weapons will become available to discharged ex-combatants or to criminals who will use them to threaten social stability – a serious problem in many African peace accords. Provisions for arms disposal formed an important part of Bougainville’s agreement. Decommissioning of paramilitary weapons was one, and perhaps the, central demand of Northern Ireland’s unionists, and was also a vital issue for the British government. It is often more difficult to reach agreement on these peace-related issues than on political institutions based on power-sharing or autonomy. Sentiment is likely to be especially polarized on these questions, as they touch vital issues of group security. The creation of integrated militaries and police forces is likely to meet resistance on all sides: from defenders of the status quo who regard the [ex-] paramilitaries as terrorists and criminals, or as fifth-columnists whose plan is to demoralize the security forces; and from the rebel leaders themselves, who baulk at the loss of control and bargaining leverage involved in demobilizing their fighters and transferring them to an integrated army. As Donald Rothchild has noted, rebel leaders may see the demobilization of their troops and the creation of an integrated army as a direct threat to their political survival. He had in mind Angola, where UNITA leader Jonas Savimbi’s concerns on this matter prompted him to abandon the peace process.26 Similar fears on the part of Bosnia’s Serbs led to the negotiators at Dayton agreeing to let Bosnia and Herzegovina’s two entities retain their own armies, a quite extraordinary state of affairs, unprecedented in any other ‘federation.’ The Complex Power-sharing Project suggests some ways in which peace issues can be managed. One way forward is to put intractable matters aside until confidence has been built up. This allows progress on issues where there is consensus. In Northern Ireland, the parties could not agree on policing reform or decommissioning, but moved forward on prisoner releases and the establishment of political institutions. A second way to proceed is to link concessions from one side to concessions by the other. The advantage is that neither side loses 26 Savimbi expressed his concerns straightforwardly: “No leader in history that I have known disarmed and stayed in power”. Cited in Rothchild 2003: 4.

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

face, and each has an incentive to deliver its side of the bargain. In Bougainville, the government of Papua New Guinea linked parts of the autonomy agreement to compliance on arms disposal by the Bougainvilleans. A linkage approach to peace issues was implicit in Northern Ireland’s agreement, but there was a failure to spell out details, including the nature of the changes to be made by the different parties, and the precise dates by which they would be made.27 The result was that both republicans and the British government were reluctant to take the first step. By May of 2003, after a number of political crises, London made a more explicit and detailed commitment to the linkage principle: demilitarization, the strengthening of local police boards, and provision for ex-paramilitaries to serve on such boards were to be linked to, and follow on, “acts of completion”, i.e., the decommissioning of weapons by the IRA. A third approach to security issues, already implied above, is to involve outsiders. Outsiders were crucial to breaking stalemates on decommissioning and police reform in Northern Ireland. They also assisted the retraining of police forces, the re-integration of paramilitaries, and the monitoring of compliance with international human rights treaties. The lessons outlined in the first part of this paper are interconnected. Divided territories may benefit from external intervention, although they do not always do so. Those with disputes based on self-determination require these issues to be squarely addressed. Where there has been violence, the institutional accommodation of self-determination claims will help to pave the way for peace. However, peace and political stability need more than the creation of power-sharing or autonomous institutions, they also need a viable peace process. II

Lessons for Critics of Consociational Theory (and Supporters of Integrative Power-sharing)

It is not just consociationalists who can learn from the lessons outlined in Section I of this chapter, but also integrationist critics of consociation, including supporters of integrative power-sharing. Writing in the post-Cold War era, integrationists writers have been more cognizant of the importance of international intervention, and some of them have argued that outsiders should take a proactive role in facilitating integrative institutions (Horowitz 2000: 277; Wimmer 2003: 137). However, integrationists have been even more likely than consociationalists to ignore the particularity of self-determination disputes. Consociationalists support self-government for ethnic minorities, although they give this less attention than power-sharing. Integrationists, however, strive for integration, not 27

The political parties, including Sinn Féin, were obliged under the terms of the Agreement to use their influence to secure paramilitary decommissioning by May 2000, in the context of the Agreement’s implementation. The government was obliged to demilitarize, reform the police, and otherwise implement the Agreement, but there were no deadlines for its compliance. The Agreement stated that an independent commission on policing should report by September 1999, but it did not say when, or indeed if, its recommendations would be implemented.

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self-determination, and although some support territorial autonomy, they do so primarily for classical Madisonian reasons, to proliferate points of power and to establish cross-cutting cleavages across group boundaries rather than to accommodate national minorities. They tend to prefer the form of territorial autonomy that exists in the United States, where there is “little coincidence between ethnic groups and state boundaries” (Glazer 1983: 276). Integrationists have had little to offer polarized polities undergoing transitions from war to peace. They are either as focused on institutions (e.g., on electoral systems and bills of rights) as consociationalists, or they advocate long-term social transformative agendas that do not deal with the present. The Complex Power-sharing Project, however, suggests three additional lessons for integrationist critics of consociationalism. A

Consociational Institutions Need Not Privilege Identity Groups or Entrench Divisions

Integrationists believe that consociation is profoundly counterproductive. By giving power to ethnocentric elites, it is claimed, consociational reinforces, freezes, or makes permanent the presumed sources of conflict. Consociation is said to “institutionalize” divisions or to cast them in “marble” (Rooney 1998: 21; Wilford 1992: 31). Consociational institutions, it is said, allow ethnic elites the resources to promote ethnocentrism, and to outmanoeuvre integrationist politicians who preach a more progressive politics based on class, gender, or the environment. Consociational agreements have been criticized as ethnic or sectarian “pacts” against those who wish to transcend difference, and as “solidify[ing] intracommunal networks,” when the goal should be to promote “inter-communal association” (Taylor 2001: 47; McGarry 2001; 134, n.39). Underlying these views is the belief that consociations ‘privilege’ ethnic over non-ethnic and trans-ethnic identities. The criticism is not groundless, and there is evidence from the Complex Power-sharing Project to support it. Under the Dayton Accords, Bosnia and Herzegovina’s government is presided over by a rotating presidency, based on one Bosniak and one Croat from the Federation of Bosnia-Herzegovina, and one Serb from Republika Srpska.28 The indirectly elected upper chamber of the federal legislature is comprised of five Bosniaks and five Croats from the Federation of Bosnia-Herzegovina, and five Serbs from the National Assembly of Republika Srpska. The presidency and vice-presidency of the Federation of Bosnia and Herzegovina rotates between a Croat and a Bosniak. Citizens who do not want to define themselves ethnically are barred from all of these offices. The institutions also convert Serbs who live in the Federation of Bosnia and Herzegovina, and Bosniaks and Croats who live in Republika Srspka, into second-class citizens, and work at cross-purposes with the international community’s expressed aim of encouraging the ethnically cleansed to return home. 28

Constitution of Bosnia and Herzegovina 1995 Art V.

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

Similarly, parts of Northern Ireland’s Agreement privilege unionism and nationalism over other forms of identity. Members of Northern Ireland’s Assembly are required to designate themselves as ‘unionists,’ ‘nationalists,’ or ‘others’. The election of Northern Ireland’s First and Deputy First Ministers requires concurrent Nationalist and Unionist majorities, as well as an overall majority. The passage of important laws requires either such a concurrent majority, or a weighted majority – 60% in the Assembly, including at least 40% of both registered Nationalists and Unionists. While Northern Ireland’s voters have shown no signs of adopting new (non-unionist and non-nationalist) identities for over a century, such rules create disincentives for them to change their behaviour. There is an incentive for voters to choose nationalists or unionists, as members from these groups will, ceteris paribus, count more than ‘others’ or be more pivotal. The rules have the effect of pre-determining, in advance of election results, that nationalists and unionists are to be better protected than ‘others’. The ‘others’, if they were to become a majority, would be pivotal in the passage of all normal legislation, but nationalists and unionists would have more pivotality in any key decision requiring cross-community support (McGarry and O’Leary 2004: 33). Such privileging of particular identities occurs elsewhere also. During Cyprus’s brief consociational era in the early 1960s, citizens were required to register on a Greek Cypriot or Turkish Cypriot electoral roll, regardless of whether they were from another ethnic community or none. There was to be a Greek-Cypriot president elected by Greek Cypriots and a Turkish Cypriot president elected by Turkish Cypriots. The Lebanese National Pact of 1943 gave rise to an informal convention whereby the presidency, prime-ministership, and speakership were entrusted to a Maronite Christian, Sunni Muslim, and Shia Muslim, respectively. Not only were these three groups privileged over other groups, but the Maronites were the most privileged – as the presidency, at least until 1989, was the most powerful office. A formal provision gave Christians six out of every eleven seats in Lebanon’s legislature. The Lebanese experience reveals another disadvantage of pre-determining the beneficiaries of consociational arrangements: it does not allow for demographic change in which the beneficiaries share of the population increases or decreases. This flaw contributed to the Lebanese civil war that broke out in 1975: the growing Shia population felt discriminated against by the country’s political institutions. The Complex Power-sharing Project also shows, however, that such corporate mechanisms are not intrinsic to consociational design. Consociational institutions may also be liberal rather than corporate in nature: i.e., they may reward any party with electoral support, and not just ethnic parties (Lijphart 1995). In Northern Ireland, all legislative seats are rewarded according to the PR-STV (proportional representation-single transferable vote) electoral system. It is not true, as the Dawishas recently claimed in the prestigious journal, Foreign Affairs, that there are “set aside seats for Catholics and Protestants” (or for nationalists and unionists for that matter) (Dawisha and Dawisha 2003: 45). Citizens vote on a common roll; vote for any candidates or parties they prefer; can vote across blocs, and can express first or lower-order voting preferences outside their blocs. So the

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election of Assembly members (MLAs) does not privilege particular identities. With the exception of the First and Deputy First Ministers, ministers win office through an allocation algorithm, the d’Hondt method, that is ‘difference-blind’: it operates according to strength of representation won by parties in the Assembly, not their national identity.29 South Africa’s transitional power-sharing arrangements (1994-1996) allocated deputy presidencies and cabinet seats on the basis of party strengths and not ascriptive characteristics. Such liberal consociational mechanisms may be more conducive to the emergence of new parties, including parties that are non-ethnic or trans-ethnic, than the Westminster system, which is sometimes celebrated for its integrationist outcomes. The proportional electoral systems associated with consociation allow parties to win seats with much smaller thresholds than are normally required under the Westminster electoral system of single-member plurality. As a result, voters are less likely, ceteris paribus, to consider voting for a new party a waste of time. By allowing for the ranking of preferences, the Single Transferable Vote variant of PR also provides an opportunity, though no guarantees, for non-ethnic or trans-ethnic voting on lower preferences (O’Leary 2001: 73-74). An executive constituted by the d’Hondt system allows parties seats in government with a much smaller share of seats in the legislature than is normally required in the Westminster system. This means that new parties have a better chance to promote their visibility, influence public policy, and demonstrate to their supporters that voting for them is a meaningful exercise. An alternative, the Sainte-Lague mechanism, is even more advantageous for minorities (McGarry and O’Leary, 1995a: 373-375). In addition, as Jackson-Preece makes clear in her chapter in this volume, it is perfectly possible to design consociational and autonomy settlements so that they provide liberal protections for individuals, including those who regard themselves as belonging to no ethnic community, and so that they outlaw discrimination on ethnic grounds. A constitutional commitment to such protections is no guarantee, of course, that they will be respected in practice, but this is also true of settlements that are not based on consociation or autonomy. Most modern consociationalists eschew corporate devices and prefer liberal rules that equally protect whatever groups emerge in free elections. They prefer “self-determination to pre-determination” (Lijphart 1995). Liberal consociationalists understand that parties to consociational pacts may make entrenchment 29 This fact has not stopped one critic of the Agreement’s rules from asserting that d’Hondt privileges certain identities. Peter Emerson, the director of the de Borda Institute, advocates the replacement of the d’Hondt rule for electing the executive and its replacement with PR-STV, so that “all assembly members could participate on an equal basis without using any sectarian labels”. The fact that d’Hondt treats all members equally and does not require them to use any labels, sectarian or otherwise, seems to have escaped him. See Emerson 2003. Another integrationist critic of the Agreement goes further, incorrectly asserting that the Agreement privileges particular parties. Apparently the “terms of the Agreement require members of Sinn Féin to be in the executive … [it] provides members of Sinn Féin with the right to be in the government” (Wilson 2003).

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

deals, i.e., settlements that institutionally represent (and privilege) certain identities, and that they may do so both for self-interested reasons and because they have genuine existential anxieties about the security of the communities they represent. However, liberal consociationalists think that it is usually desirable and possible to protect groups without corporatist principles. Thus, Brendan O’Leary and I have argued that, under the review process provided in Northern Ireland’s agreement, the parties should make changes that would remove as many corporate principles as possible. We have recommended the use of the d’Hondt formula for the nomination of the First and Deputy First Minister, with a built-in safeguard to ensure that neither Nationalists nor Unionists could assume both positions (see McGarry and O’Leary 2004: Appendix A). We have also recommended simplifying and changing the current rules used for the passage of ‘key’ legislative measures to a simple weighted majority of at least 60% of MLAs (McGarry and O’Leary 2004). In the context of a new federal Iraq, we think that its federal government should be consociational in nature, and should be based either on Iraq’s regions, or on each party’s share of seats in the legislature, rather than on pre-determined ethnic categories (McGarry 2003b; O’Leary 2003). B

Consociational Institutions Are Compatible with Democracy, Including Democratic Oppositions

Another fundamental criticism of consociation is that it is deficient in democratic virtues. One of its critics describes it as a “macabre” parody of “real democracy” (McCartney 2000), while another believes that “a fully-developed consociational system is inherently undemocratic” (Brass 1991: 339). There are two parts to this complaint. First, con- sociation with its emphasis on inclusive government, is said to be bereft of opposition. The price of consociation allegedly involves “abandoning a viable opposition politics” (Brass 1991: 334; also see Horowitz 2000: 256-257). If everyone is in office, the criticism goes, who is there to hold the government to account, or to pose as an alternative government? Supporters of integrative power-sharing, which is based on an interethnic but minimum-winning coalition, argue that one advantage of this is that it allows for opposition. Second, as consociation focuses on negotiations and accommodation among elites, it is seen as inconsistent with the development of a modern participatory democracy, which does not restrict civic responsibility to voting in elections or even membership in political parties, but encourages active and ongoing political engagement through a wide range of voluntary associations.30 There is some truth in both criticisms. However, the charge that consociational executives lack democratic opposition is only (partially) accurate when levelled 30 There is a third complaint about the democratic failings of consociationalism, i.e., that it infringes the democratic principle of majority rule and that majorities should be able to govern, even if they are from one bloc in a divided society. Both supporters of consociational and integrative power-sharing are agreed that majority rule of this sort would be disastrous.

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at ‘grand,’ or what O’Leary calls ‘complete,’ consociational executives, i.e., coalitions in which all major parties from all major segments are represented (O’Leary 2005). Even in this case, small parties may be in opposition. While Northern Ireland’s first post-Agreement government comprised all 4 major parties, with 89 of the Aseembly’s 108 MLAs, this still left 5 parties, and a total of 19 MLAs, in opposition. Backbenchers from the parties in government may also hold ministers from other parties accountable for their actions. To facilitate this, committee chairs and ministerial portfolios in distinct functional areas can be allocated to different parties, as happens in Northern Ireland. Consociational executives may also be ‘concurrent’ (restricted to parties commanding a majority but not total support within their respective segments) or ‘weak’ (if at least one of the segmental parties in office commands only plurality support within its group). They may also be based on some segments, but not on all. Thus, Israel has had consociational arrangements between Ashkenazi and Sephardic Jews, while excluding Arabs. In all of these cases, significant parties may remain outside the government and criticize its policies. Consociational arrangements may even exist within a single governing party, if that party is internally a multi-segmental coalition, and if the executive is comprised of representatives of the different segments. Such a ‘consociational party’ can govern within the conventional Westminster model of government and opposition, as has occurred in Canada and India, and arguably in South Africa also. It should also be noted that the majoritarian Westminster model, sometimes positively contrasted with consociation in this respect, does not necessarily provide strong oppositions. To its defenders, a marked advantage of the plurality electoral system used in the Westminster model is that it promotes ‘strong’ government by converting electoral minorities into strong legislative majorities. Indeed, it is so successful in doing this that it can often reduce the opposition to an ineffective rump. An extreme case occurred in the Canadian province of New Brunswick in 1987, when the Liberals won every seat in the legislature with 60.4% of the vote (Hyson 1998). It is true that consociational settlements often rely on the capacity of leaders to make compromises, and to persuade their followers to accept these, although such acceptance requires leaders who are authentic. And consociationalists correctly point out that active participation from civil society may lay bare divisions and make it difficult to achieve agreement, as happened in Canada between 1987 and 1992 (Russell 2004). However, there is evidence from the Complex Powersharing Project that the shaping of consociational settlements, their ratification, and their aftermaths need not be the exclusive property of political elites. In Northern Ireland, policing reform resulted from a widespread consultation process that involved 2,500 written submissions and public meetings in every district council area, which were attended by 10,000 people and at which 1,000 spoke (Independent Commission on Policing in Northern Ireland 1999). The Agreement itself was ratified by simultaneous referenda in both parts of Ireland. As such, it was a democratic advance on its predecessor, the Sunningdale Agreement of 1973, which was an old-fashioned elite agreement arrived at in a private British government retreat, and not ratified by referendum. It subsequently be-

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

came vulnerable after an election to the Westminster parliament in February 1974 returned a significant majority of unionist opponents.31 One of the main assets of Northern Ireland’s current agreement against its critics is that it is a product of direct popular endorsement. The current agreement also makes provision for future referenda to decide the ultimate question of whether Northern Ireland should remain part of the UK or become part of a united Ireland. In this respect, it is similar to Bougainville’s settlement, which provides for a referendum on whether or not it should remain part of Papua New Guinea. Northern Ireland’s agreement also establishes a publicly funded Civic Forum alongside the elected Assembly. This institution is made up of representatives of organizations outside of conventional politics, and presents an opportunity for those who do not feel represented by conventional political parties to have their voices heard. It has no counterpart elsewhere in the (non-consociational) UK, including in the newly devolved regimes in Scotland and Wales. C

Consociationalism, Integrationism, and Realpolitik

Supporters of integrative power-sharing and social transformation argue that the consociational approach to conflict management is impractical. Horowitz maintains that consociationalists are overly optimistic: ethnic leaders in seriously divided polities are unlikely to agree on consociational institutions, and unlikely to make them work. This is particularly so as consociations are said to entail grand coalitions, i.e., inclusive executives that contain not just moderates from previously warring ethnic segments but also radicals. Consociations, Horowitz concludes, are only likely to work where they are unnecessary, that is, where there are 31

The Sunningdale agreement retained the support of a significant majority of the Assembly elected in 1973, and the unionists elected to Westminster in February 1974 had no mandate to challenge the earlier Assembly elections. Nonetheless, the Westminster election began a process of events that resulted in the collapse of the Assembly and Agreement in May of 1974. Had the Sunningdale Agreement been approved in a referendum, and particularly referenda in both parts of Ireland, it may well have proved more durable. Its supporters would have argued that a referendum is a more accurate guide to popular endorsement of the Agreement than an election, particularly one to the UK parliament rather than the Northern Ireland Assembly, and particularly one held under SMP rather than PR. They would have argued that the result of a referendum can legitimately only be undone by a subsequent referendum. It is very doubtful that even the spineless British Secretary of State, Merlyn Rees, would have permitted such a second referendum (For Rees’s lack of backbone, see O’Leary in McGarry and O’Leary 2004: Ch. 6). This is partly because of the widely accepted convention that referenda results should be lasting and that one should not quickly resort to a second referendum to undo the results of the first, although the Irish recently breached this convention in 2002 in relation to the Treaty of Nice. Even had Rees permitted such a referendum, it is not at all clear that the anti-Agreement side would have won. One can make a reasonable case, therefore, that one of the biggest mistakes of the designers of Sunningdale’s consociations was their failure to seek public endorsement.

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only mild divisions. They “are more likely the product of resolved struggles or of relatively moderate cleavages” (Horowitz 1985: 256). The prospects for integrative power-sharing are better, in Horowitz’ view, because it is based on cooperation among moderates. By contrast, transformationists accuse consociationalists of pessimism. Consociationalists are said to be primordial pessimists, to exaggerate the depth, resilience, and uni-dimensional nature of social divisions, and particularly, to downplay the capacity of humans to develop new transcendent identities. Ethnicity is taken by consociationalists as an ‘objective factor’ rather than a choice made by people (Brass 1991: 338; Taylor 2001: 39). Consociationalists are said to uncritically accept “the primacy and permanency of ethnicity,” and to convey a “rather bleak view of humanity” (Taylor 1994: 163; Wilford 1992: 31). In Taylor’s view, consociationalists ignore the power of human agency, the ability of people to reject or change their identity: “the point that consociationalism has not grasped, but that has been central to both liberalism and Marxism, is that human freedom is a power, a Promethean force” (Taylor 2001: 40). Transformationists prioritize policies to promote social integration and to remove economic inequalities between groups lest these augment divisions. They favour a bottom-up approach to conflict resolution that sees ethnic elites being challenged by groups in civil society, including trade unions, peace and conflict resolution groups, and non-ethnic political parties that stress cross-cutting social divisions and the construction of transcendent identities. Some transformers see consociation as incompatible with transformation, and reject it tout court, but others appear to accept that transformation can be achieved in spite of consociation. Social transformation is particularly popular with international NGOs that work in divided polities. They tend to regard local elites as ethnocentric and backward, and seek to transform the polities into the more harmonious versions they come from. Despite NATO’s role in the Dayton Accords, which provided for consociational institutions, most international (inter-governmental) organizations involved in Bosnia are social transformationist in perspective. Unhappy with local leaders, they have restricted Bosnia’s autonomy, while simultaneously funding civic associations that reject these leaders (Chandler 1999: 138).32 What does the Complex Power-sharing Project suggest about consociation, integration, and realpolitik? It appears to offer some support to the integrationist perspective. Of the three cases of consociation (Northern Ireland, Bosnia and Herzegovina, and Macedonia), none are thriving. Northern Ireland’s consociational institutions are currently suspended. There is a widely-held expectation that Bosnia and Herzegovina would fall apart in the absence of international 32

Local supporters of social transformation welcome this. One, the Marxist Bogdan Denitch, is so disparaging of Bosnia’s local elites that he appears to believe Bosnia’s international authorities are more representative of the true interests of the Bosnian people than those the Bosnian people vote for (cited in Chandler 1999: 136). For Denitch, the international authorities seem to have assumed the former role of the Communist party.

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intervention. Macedonia’s power-sharing arrangements are threatened from within and without. Unsurprisingly, supporters of integrative power-sharing and social transformation see these cases as vindicating their analysis (see Wilson and Wilford 2001). However, consociationalists can respond to integrationists in five ways. First, consociationalists do not claim that consociation will always work. Consociationalists are not as ‘optimistic’ as Horowitz and his supporters suppose. A substantial part of the consociational literature is devoted to outlining the conditions that make success more or less likely. Consociations that are largely imposed, like Bosnia’s, face more serious problems, ceteris paribus, than those endogenously arrived at. What consociationalists do claim is that in deeply divided polities, consociation is likely to be the only workable and normatively acceptable alternative to partition. Second, a consociationalist might respond that the ‘failure’ of these consociations has been exaggerated. In each of the three cases, consociation (plus the explicit treatment of self-determination and security issues) has helped to bring civil wars to an end. In Bosnia and Herzegovina, the numbers killed in the conflict ended by Dayton range between 160,000 and 250,000, while 2.5 to 3 million people were displaced.33 Peace since 1995 is importantly related to NATO’s presence, but it has also been facilitated by a political settlement that gives the different communities their second, if not their first, preferences. Northern Ireland’s peace process, with all its attendant difficulties, has also been associated with a highly significant reduction in political violence. In the seven years that preceded 1994, the year in which republican and loyalist paramilitaries declared ceasefires and opted for constitutional negotiations, the total loss of life because of the conflict was 622 persons. In the seven subsequent years, it has been 140, a fall in the death toll of nearly four fifths, and this despite a major breakdown in the IRA’s ceasefire in 1996-1997 and intermittent breakdowns in the loyalists ceasefires (McGarry and O’Leary 2004: 23). Not one soldier or policeman has been killed in Northern Ireland since 1998, which makes it, statistically, one of the safest places in the world for such employment. This decline in violence cannot plausibly be attributed to the presence of the British army, as it was also present, indeed in significantly greater numbers, when the violence was much worse. Such facts are omitted in integrationist accounts, which emphasize stalemates, or which even distort statistics to create the impression that violence is increasing rather than decreasing.34 33

34

The higher figures for killings and refugees come from the US State Department, the lower from the International Helsinki Federation for Human Rights. See, respectively, http://www.state.gov/www/global/human_rights/1996_hrp_report/bosniahe. html; and http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=4743. Thus Wilson and Wilford, integrationist critics of Northern Ireland’s consociational agreement, ignore the profound decline in death rates since 1994, and the fact that virtually nobody has been killed in interethnic clashes, or clashes between either community and the security forces, since 1998. Instead, they argue that divisions ap-

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Third, the difficulties that these consociations have experienced have been related to disagreements over peace-process issues, rather than the consociations themselves. In Bosnia, one of the chief sources of disagreement concerns the right of refugees to return to their original place of residence. In Macedonia and Northern Ireland, there has been serious disagreement around the issue of decommissioning. Northern Ireland has been polarized on the issue of police reform. There is, by contrast, broad support there for consociation itself.. Northern Ireland’s institutions have been suspended, in 2000, 2001, and 2002, because of Unionist dissatisfaction over the unwillingness of the IRA to decommission its weapons, which is in itself a response to the British government’s tardiness in implementing police reform and demilitarization. If these issues can be resolved, in the way suggested above, the institutions themselves would be placed on a more secure footing. Fourth, it may be possible to engineer or re-engineer consociations to remove or reduce sources of instability. As integrationists point out, one reason why consociations have been difficult to achieve, and even more difficult to maintain, is that they have relied largely on trust between leaders, and on voluntary statesmanship, qualities that are often unavailable in sufficient quantities. The criticism has validity: traditional consociational thinking has been tacitly committed to power-sharing as a by-product of interparty negotiations over government formation. However, Northern Ireland’s agreement, especially if it endures, promises to publicize a technique that is not widely known, and that usefully resolves the disputes that may arise between polarized parties when they must share out ministerial portfolios (O’Leary, Grofman, and Elklit 2001). It is a technique for speeding government formation after elections, one that conforms to the proportionality principles of consociational thinking, facilitates power-sharing, and meets many tests of fairness. This is the d’Hondt allocation process. This takes advantage of the fact that divisor rules for achieving fair proportions can also be used to determine the sequence in which parties should be entitled to nominate ministers. It has the decided advantage of obviating protracted negotiations over how many ministries each party is entitled to, and over which portfolios each party is entitled to. It also creates incentives for executive maintenance, as it provides for the portfolios of parties exiting the executive to be automatically re-allocated among other parties, including parties from other blocs. In Northern Ireland, while the DUP are committed to re-negotiating the agreement, they have retained their ministerial portfolios throughout. Had the DUP been capable of preventing the executive, or bringing it down, merely by refusing to take part, it is very likely that this is what it would have done. Much of Northern Ireland’s political instability has originated, by contrast, from the office of its co-premiers, the First and Deputy First Ministers. These are not elected by the d’Hondt process, but by a majority of the Northern Ireland Assembly, including a concurrent pear to be getting worse. A survey is produced that shows “a sense of deterioration in recent years and a diminishing optimism about future harmony” (Wilson and Wilford 2003: 2-3).

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

majority of nationalists and unionists. They are, ironically, examples of what supporters of integrative power-sharing recommend: institutions that require interethnic support, and that are designed to secure the triumph of moderates over radicals. Resignations and threats to resign have been used by the occupants of both positions to further their political agendas (see McGarry and O’Leary 2004: 27-29). Elsewhere, O’Leary and I have detailed ways in which the rules for selecting the First and Deputy First Ministers could be changed, under the Agreement’s provisions for review, to make resignations less attractive, and thus to strengthen the institutions’ stability. We have argued that both offices should be filled by the d’Hondt procedure, with a proviso that both offices could not be held by nationalists or unionists. If this happened, the First and Deputy First Ministers would have the same incentives to keep their positions as the rest of the executive (McGarry and O’Leary 2004: 48-53). The British government could also enhance the stability of the institutions if it repealed its Suspension (Northern Ireland) Act 2000, which is, in any case, a breach of the formal British-Irish treaty incorporating the Agreement. The effect of this would be that an unwillingness to take up the positions of First and Deputy First Ministers would result in elections, which might give cause for reflection.35 Fifth, the Complex Power-sharing Project suggests that, when considered relatively, consociation may be more realistic, and more consistent with stability, than either integrative power-sharing or social transformation. Three consociational settlements have been negotiated in the cases covered here, in Northern Ireland, Bosnia-Herzegovina, and Macedonia. This is at direct odds with Horowitz’s criticism that consociation is unachievable in deeply divided polities, and has relevance only for polities with moderate divisions (Horowitz 1985: 572-573). Consociations have also been negotiated recently in Afghanistan and Congo. Iraq’s interim governing council is based on consociational principles, and a final settlement there, and in Cyprus, is likely to be both consociational and federal. By contrast, integrative power-sharing arrangements are not prominent in any of our cases. They have not once been agreed to in negotiations between rival parties. They were imposed on one occasion, the 2000 election of Republika Srspka’s presidency, by Bosnia’s international authorities. However, for reasons that are discussed below, this experiment was a failure, and was quickly abandoned. There are a number of reasons why integrative power-sharing is less likely to be negotiated, and/or less likely to bring stability, than consociational power-sharing. One is that leaders in a divided society are more likely to settle on an electoral system that allows them to win as they are, i.e., as leaders of ethnic communities, than on one that requires them to transform themselves into trans-ethnic or non-ethnic elites. This is particularly true of radical elites, presumably those who would be most prepared to resist the new arrangements. The adoption of the AV electoral system that is recommended by supporters of integrative power-sharing 35

The positions of FM and DFM are also interdependent. The resignation or death of one automatically triggers elections for both positions. The stability of the institutions would be enhanced if the two positions were made independent.

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is particularly unlikely when the elites involved in negotiations owe their positions to a prior, proportional electoral system.36 If an integrative power-sharing system is implemented, it is not as clear as Horowitz thinks that its coalition of moderates will deliver stability. Excluded radicals can destabilize power-sharing institutions. They may accuse included moderates from their bloc of treachery, which may prevent the latter from making the compromises necessary for successful power-sharing. Excluded radicals may engage in violence, creating a polarized atmosphere that pressurizes moderates and makes compromise difficult. This is what happened during Northern Ireland’s only experiment with a power-sharing coalition of moderates: the Sunningdale experiment of 1973-1974 (Neuheiser and Wolff 2003: 1-24; Wolff 2001). The coalition was attacked by radicals on both sides. It found it difficult to reach substantive internal agreement, amidst mounting violence, and collapsed after less than five months in office. Inclusion in power-sharing coalitions, on the other hand, can make radicals less extreme, because it provides them with opportunities to have their concerns addressed constitutionally, and gives them a stake in the system. Inclusion can strengthen the position of moderates within radical factions, a possibility Horowitz and others appear to discount. This does not mean that the inclusion of radicals in government is always a good idea. Radicals, as in Northern Ireland in 1974, may be virulently opposed to power-sharing and committed to militancy, in which case they will use their positions in government to destroy it. However, contrary to Horowitz, it makes political sense to include leaders of radical parties prepared to participate in power-sharing institutions on the basis of democratic mandates and methods, particularly when they are waging internal battles with their hawks on the merits of constitutional politics. This has been the British government’s policy towards Sinn Féin, whom Horowitz would see excluded from the executive, since 1997. The policy has brought the benefits already referred to, and it is difficult to imagine Northern Ireland’s peace process being so productive without Sinn Féin (McGarry and O’Leary, 2004).37 Contrary to our intuitions, perhaps, an inclusive coalition of rivals may be more consistent with stability than an exclusive coalition of moderates. 36 37

As a consequence, the adoption of AV may be more likely in a region that is newly democratizing. The d’Hondt rule for executive appointment, already referred to, can also mitigate the effect of having rival parties in government. With d’Hondt, no programme of government has to be negotiated in advance between the parties entitled to government. The design creates strong incentives for parties to take up their entitlements to ministries, because if they do not then the portfolios go either to their ethnic rivals or to their rivals in their own bloc. D’Hondt means that no vote of confidence is required by the legislature either for individual ministers or for the executive as a whole. These incentives have produced positive results in Northern Ireland (see McGarry and O’Leary 2004). D’Hondt can be combined with maximum autonomy for individual ministers acting within their portfolios, a form of ‘power-division’ within a power-sharing government. Such rules can only go so far, however. There is likely to be a need for collective agreement on some matters, particularly the budget.

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

Another difficulty with integrative power-sharing in deeply divided polities is that AV requires constituencies that are sufficiently heterogeneous. It is also helpful if no single group enjoys majority status, as otherwise politicians from this group will have little incentive to vote-pool, and the alternative vote will likely deliver a victory to the ethnic majority. The problem here is that in many deeply divided polities, especially those emerging from conflict, constituencies lack sufficient heterogeneity. It may be possible to engineer this, through gerrymandering constituency boundaries, or by imposing regional distribution requirements in state-wide elections. However, as with the AV electoral system itself, extant political leaders are not likely to endorse such changes. In addition, the success of vote pooling relies on leaders making trans-ethnic appeals, and on voters being prepared to vote for moderate politicians from other ethnic groups. The assumption is that this will happen because it is required to win elections. However, this appears to make integrative power-sharing dependent on an already existing degree of moderation, the charge, ironically, that integrationists level at consociationalists. Where divisions are deep (or where constituencies have a dominant group), ethnic leaders may well continue to make ethnocentric appeals and voters may continue to vote ethnically, or both may abstain. In fact, the imperative of leaders staying in the count under AV, i.e., getting as big a first or second preference vote as possible, may dictate continuing ethnocentrism. If this is so, and AV results in the election of leaders who are not representative of the society, it offends democratic norms, and is likely to be destabilizing. Proportionality norms, by contrast, better match the parties’ respective bargaining strengths and their conceptions of justice. They ensure that groups are authentically represented, and represented according to their share of the population. They are more likely, as a consequence, to ensure stability. One proportional system (PR-STV) combines the benefits of proportionality with the possibility of interethnic voting in lower preferences. PR-STV also allows intrabloc voting between supporters of moderate and radical parties, which may be a more likely outcome in deeply divided polities than interbloc voting. Such intrabloc voting may encourage moderation, as it allows moderate voters to reward radical parties for becoming more moderate (McGarry and O’Leary 2004: 31). Some of the difficulties with AV can be seen from its use for the election of the presidency of Republika Srspka in 2000. Republika Srspka is almost exclusively Serb, although around one sixth of those who voted in 2000 were ex-residents, presumably Bosniaks. This immediately highlights one difficulty with the alternative vote: a large Serb majority meant there was little prospect of anyone other than a Serb being elected as president. The rules for the election were drafted by the OSCE, not the locals. It appears to have calculated that the alternative vote would facilitate the election of the moderate Serb candidate over a radical rival, as a sufficient number of Bosniaks would use their lower preferences to support the moderate Serb.38 As it turned out, lower preferences were rendered nearly 38

The OSCE proclaimed that “candidates for the Republika Srspka ... will have to look beyond their narrow core of supporters and offer political platforms which appeal

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superfluous, as the radical Serb candidate won almost a majority (49.8%) in the first round. He was elected in the second round, on the basis of 35 transfers from an eliminated fringe Bosniak party (BOSS). Only 3% of BOSS’s transfers went to candidates from Serb parties, with the rest going to other Bosniak parties (Bose 2002: 233). In Bosnia’s permanent election law, adopted by its politicians in 2001, the use of AV for the election of Republika Srspka’s president was dropped, and replaced by a (corporate) consociational alternative.39 Even if it is accepted that Republika Srspka was not propitious territory for AV because of its dominant Serb population, this evidence is damaging for AV proponents in three ways: AV did not promote interethnic voting; it did not appear to help the Serb moderate candidate against the Serb radical;40 and Bosniak voters had little difficulty wasting their transfers on Bosniak parties that had no prospect of winning. What about the prospects of social transformation as a realistic alternative to consociation in divided polities? Social transformation appears to rest on the assumption that the divisions that are articulated by elites are artificial or superficial. Ethnic political elites are not seen as genuinely representative of their people. Transformative civic associations are seen, by contrast, as reflecting a more authentic mass political culture, albeit one that may be located just below the surface. However, there is little evidence from our cases that social transformationists better reflect popular aspirations than elected elites. In the elections that took place in Bosnia and Herzegovina in 1990, in which non-ethnic parties participated, and which preceded any violence, the three main ethno-national parties won over three quarters of the vote (Bose 2002: 212). The only two parties that were non-ethnic in nature, Ante Markovic’s Union of Reform Forces and the Communist League of Bosnia and Herzegovina, won 5.4% and 7.5%, re-

to a wider audience … The preferential voting system will allow ALL citizens of Republika Srspka to have a meaningful voice in the selection of their president’ (cited in Bose 2002: 222). 39 Article 12.3 of the new election law states as follows: “The candidate from each constituent people receiving the highest number of votes shall be elected. Among these three candidates, one from each constituent people, the candidate receiving the highest number of votes shall be elected President, and the two candidates receiving the second and third highest number of votes shall be elected Vice Presidents”. 40 Bose suggests that AV may in fact have strengthened the radical (SDS) candidate against the moderate. He bases this on the fact that the SDS candidate achieved a significantly larger percentage of the vote from residents of Republika Srspka (60%) than his party achieved in simultaneous elections to Republika Srspka’s parliament and Bosnia’s parliament (44% and 48%, respectively) (Bose 2002: 230). However, there are other possible reasons for the voting discrepancy, including the campaign effectiveness of the main candidates. One could speculate, by contrast, that AV may have provided an incentive for the radical candidate to moderate, as, in practice, it increased the threshold for victory. However, if this was the result, it was not anticipated by supporters of AV. In any case, providing incentives to hardliners to moderate can also be achieved by PR-STV, a preferential but proportional electoral system.

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

spectively.41 Susan Woodward, an American critic of the nationalist parties and of consociationalism, remarked that the election results read “like a census of national identities in the socialist period” (cited in Bose 2002: 212). Social transformationists have responded by pinning responsibility for these results on Tito’s allegedly perverse institutionalization of ethnic identities, his decision to convert Yugoslavia into an ethno-federation in which ethnic rights were entrenched at all levels (Bose 2002: 213; Snyder 2000; Bunce,1999).42 However, Bosnia’s divisions preceded Tito. The first parties to emerge in the region under the Austro-Hungarian empire also reflected national/confessional cleavages.43 They emerged, moreover, under a regime that was profoundly assimilationist in intent: it sought to promote a common Bosnian identity to confront the spread of Serbian nationalism among those of the Orthodox religion. This history suggests that Tito responded to preexisting cleavages, not that he was responsible for creating them (see McGarry and O’Leary 2003). The durability of ethno-national cleavages is even more clear-cut in historic Ulster, and then the Northern Ireland that was carved from it in 1921. Since the extension of the franchise to the male working class in the 1880s, the region has divided consistently into two rival ethno-national blocs, and the divisions have become more pronounced after thirty years of interethnic violence (See McGarry and O’Leary 2004: 303-313). Non-ethnic parties have performed abysmally, hardly ever winning more than 10% of the vote among them. Transformers sometimes respond by dismissing this electoral evidence as misfocused. A concentration on the share of the vote won by ethno-national parties, it is argued, exaggerates the degree of polarization. It is said that citizens abstain from electoral politics, presumably because they are sickened by ethnonational squabbling;44 or that significant support for social transformation is to be found among grassroots civic associations. However, there is not much evidence to support these claims either. Bosnia’s turnout since 1995 has been a little worse than 41 http://www.europeanforum.bot-consult.se/cup/bosnia/develop.htm 42 The blame has also been placed on the fact that the first democratic elections were held at the republican level rather than at the Yugoslav federal level (see Linz and Stepan 1992). This apparently gave ethnic republican-level elites an advantage over their pan-ethnic Yugoslav counterparts. Apparently, had the elections been held first at the federal level, pan-Yugoslav parties would have had the upper hand. The problem with this thinking is that minority nationalist parties also did very well around this time in elections held in unitary states in Eastern Europe , i.e., where there were no prior regional level elections. For a critique of Linz and Stepan’s reasoning, see McGarry and O’Leary 2003. 43 The parties represented in the Bosnian parliament organized under Austro-Hungarian rule in 1910 were the Serb National Organization, the Muslim National Organization, the Croat National Union, and, the smallest of the four, the Croat Catholic Association (Bose 2002: 214). 44 The problem in Bosnia, according to the OSCE, is that “ordinary people are dissatisfied and disillusioned; they thus tend to withdraw from all segments of civic and political life” (Cited Chandler 2000: 137).

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the United Kingdom’s, about the same as Canada’s, and much better than the United States, and none of these other societies have just emerged from civil war or have fairly impotent institutions.45 Northern Ireland’s turnout is consistently higher than any of the cases mentioned (McGarry and O’Leary 2004: 88). As for Bosnia’s transformative associations, the “central problem” in the words of the OSCE officer responsible for developing them was “how to encourage participation” in them(Cited, Chandler 2000: 149). A study of Bosnia’s civic associations concludes: “There seems to be a large gap between the civil society associations funded and supported by the OSCE, and other international institutions, and Bosnian people. For the OSCE and other institutions, this gap demonstrates the lack of a democratic culture in Bosnia. While few people are actively involved in civil society associations, leaving them predominantly middle-class based, the main Nationalist parties still easily attain the majority of the votes in elections” (Chandler 2000: 150). The same can be said for transformative associations in Northern Ireland and in other violently-divided territories (see Cochrane 2001). All this suggests that social transformation may not be a realistic option in the short to medium term. Where it is not, a more immediate strategy is required to ensure that rival communities can live together in peace, and this would seem to entail some form of accommodation among representative leaders. Transformationists are correct to point out that political institutions should be designed so that they do not privilege existing identities and so that they allow for the emergence of new interethnic or non-ethnic identities. This is a point that academic supporters of consociation accept. Consociationalists are also happy to encourage the development of voluntary associations based on different interests and identities. In fact, a period of successful consociational governance should lay the basis for the organic development of normal politics and the related development of such associations around bread and butter issues. III Conclusion The Complex Power-sharing Project provides three lessons for supporters of consociational theory, although others, including supporters of integrative powersharing should also take note. First, outsiders can play a benign role in facilitating and maintaining consociations. This does not mean that all such interventions are benign, or that all well-intentioned interventions are right-headed. Second, if ethno-national conflicts are to be effectively managed, self-determination issues must be squarely grasped and addressed in the new institutions. Third, effective conflict resolution requires not simply a focus on political (legislative, executive, electoral) institutions but also attention to a range of issues connected with peace 45

Bosnia’s electoral turnout rate in the 1990s, when measured as a proportion of the voting age population, i.e., not registered voters, varied between 52% and 58%. During this same period, the United Kingdom’s turnout rate varied between 57% and 69%, Canada’s between 55% and 57%, and the United States’ between 34% and 49%. Data from http://www.idea.int/index.htm.

23  Conclusion – Power-sharing Theory: Lessons from the Complex Power-sharing Project

and security. These include police reform, demilitarization/ decommissioning, and the protection of human rights. A failure to satisfactorily resolve any such issue can destabilize and ultimately destroy political institutions, even if there is widespread support for them. The project also provides three lessons for critics of consociation, including supporters of social transformation and integrative power-sharing. First, it is possible to design liberal consociations, i.e., consociations that do not privilege certain ethnic identities over other ethnic, non-ethnic or trans-ethnic identities, and that are respectful of both individual and group rights. Second, consociation is consistent with strong democratic values. Third, consociation is neither utopian nor primordially pessimistic, as its detractors suggest. Consociationalists do not think that consociations are universally applicable panaceas, nor do they believe that divisions are etched in stone. Rather, they argue that consociations are more likely to be successful under certain conditions than others, that consociation may be the only normatively defensible alternative to partition, and that a successful period of consociational governance can pave the way for the erosion of divisions.

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Biographies

Florian Bieber Florian Bieber is a Senior Non-resident Research Associate of the European Centre for Minority Issues, based in Belgrade, and a recurrent Visiting Professor at the Central European University, Budapest. He also teaches at the Regional Masters Programme for Democracy and Human Rights, Sarajevo. He received his Ph.D. in Political Science from the University of Vienna. He published articles on nationalism and politics in Southeastern Europe and edited Montenegro in Transition. Problems of Identity and Statehood (Baden-Baden: Nomos, 2003); (with Džemal Sokolović) Reconstructing Multiethnic Societies: The Case of Bosnia-Herzegovina (Aldershot: Ashgate, 2001); and (with Židas Daskalovski) Understanding the War in Kosovo (London: Frank Cass, 2003). John Bradley John Bradley is a Professor at the Economic and Social Research Institute (ESRI) in Dublin. His research explores the impact of the Single European Market, regional aid programmes (or Structural Funds), and Economic and Monetary Union on the smaller, less developed peripheral states and regions of the European Union (Greece, Ireland, Portugal, East Germany, Northern Ireland), as well as the transition of former Communist countries of Eastern Europe to EU membership. He has carried out a wide range of international consultancy assignments for the Irish government, the European Commission, and many other international organizations. Paul Cornish Paul Cornish is head of the International Security Programme at Chatham House, and has previously worked at Kings College London and the Centre for International Studies in Cambridge. His areas of specialization include international security and defence, post-conflict reconstruction, and the European security institutions. Professor Cornish’s recent publications include “NATO: the Practice and Politics of Transformation”, International Affairs 80(1) (2004), and, as editor, The Conflict in Iraq 2003 (London: Palgrave Macmillan, 2004).

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Biographies

Farimah Daftary Farimah Daftary is a Senior Non-resident Research Associate of the European Centre for Minority Issues (ECMI) in Flensburg, Germany. She received her Masters of International Affairs (M.I.A.) with a specialization in East Central Europe from the School of International and Public Affairs (SIPA), Columbia University, New York in 1991. As a (Senior) Research Associate at ECMI from 1997 to 2002, her research concerned various aspects of interethnic relations and minority issues in Europe as well as the OSCE’s ‘Human Dimension’. From April 2002 to June 2003 she was affiliated with the EU Accession Monitoring Program (EUMAP) of the Open Society Institute, Budapest, dealing specifically with the reports on minority protection in the EU candidate states of Central and Eastern Europe. She has published a number of articles on Corsica’s autonomy arrangement, powersharing in Macedonia, and language issues in Slovakia. She has also co-edited two books: Nation-building, Ethnicity and Language Politics in Transition Countries (with François Grin) (Budapest: Open Society Institute/LGI, 2003) and Radical Ethnic Movements in Contemporary Europe (with Stefan Troebst) (Oxford/New York: Berghahn Books, 2003). Eben Friedman Employed as Research Associate at the European Centre for Minority Issues (ECMI) in Flensburg, Germany, Eben Friedman completed the Ph.D. programme in political science at the University of California, San Diego in September 2002. His doctoral thesis, entitled “Explaining the Political Integration of Minorities: Roms as a Hard Case”, drew on two years of field research in Slovakia and Macedonia. He also holds an M.A. in Political Science from the Johns Hopkins University, where he specialized in international relations. At ECMI, his activities focus mainly on Macedonia and Roms. Angela Hegarty Angela Hegarty is Senior Lecturer in Law at the University of Ulster at Magee. Born and raised in Derry, she graduated in law from QUB in 1985 and then qualified as a solicitor. She obtained an LLM in Human Rights, Emergency Law and Discrimination, also from QUB, in 1991. She is the Director of the LLB Programme at Magee College, where she teaches Public Law and runs a Clinical Law programme. Her research interests are in human rights, transitional justice, and policing. She is currently engaged in research and writing about truth processes and the Bloody Sunday Inquiry and to that end is a Research Fellow at the Transitional Justice Institute at the University of Ulster. She is a past Chair of the Committee on the Administration of Justice, which won the Council of Europe Human Rights Prize in 1998. She is a board member of a number of human rights NGOs and is also a trustee of the Bloody Sunday Centre. She was previously appointed to the Equal Opportunities Commission for Northern Ireland, the Standing Advisory Commission on Human Rights, and to the Northern Ireland Human Rights Commission.

Biographies

Jennifer Jackson-Preece Jennifer Jackson-Preece is currently Lecturer on Nationalism in Europe at the London School of Economics and Political Science. She has published widely in the area of human and minority rights, including National Minorities and the European Nation-States System (Clarendon Press, 1998); and Minorities and Their Rights (Polity Press, forthcoming). Priit Järve Priit Järve Ph.D. is Senior Research Associate at the European Centre for Minority Issues (ECMI), Flensburg, Germany. Priit Järve graduated from Tartu University, Estonia. From 1989 to 1997, he was the Director of the Institute of International and Social Studies in Tallinn, Estonia, specializing in political science. From 1995 to 1997, he also acted as the Plenipotentiary of the Estonian President to the Estonian Roundtable on Minorities (1995-1997) and edited Estonian Human Development Reports of 1995, 1996, and 1997 under the auspices of the UNDP. Priit Järve joined ECMI in 1997. He has published on democratization of transitional societies, security of small states, multiculturalism, language policies, and interethnic relations in the post-Soviet area in American Studies in Scandinavia, Nationalities Papers, Politiikka, Journal of Baltic Studies and in various ECMI publications. As an ECMI staff member, he has done project work in Moldova, Ukraine, Estonia, Latvia, and in the Kaliningrad oblast of Russia. John McGarry John McGarry is Professor and Canada Research Chair in Nationalism and Democracy in the Department of Political Studies at Queen’s University (Kingston, Ontario). He is the editor, co-editor, and co-author of several books, including Essays on the Northern Ireland Conflict: Consociational Engagements (forthcoming, late 2003); Northern Ireland and the Divided World (2001); Minority Nationalism and the Changing International Order (2001); Explaining Northern Ireland (1995); and The Politics of Ethnic Conflict Regulation (1993). He has also published in journals such as Ethnic and Racial Studies, Government and Opposition, Nationalism and Ethnic Politics, Nations and Nationalism, Political Studies, Parliamentary Affairs, Journal of Conflict Studies, and the Journal of Commonwealth and Comparative Politics. James Mayall James Mayall is the Sir Patrick Sheehy Professor of International Relations and Director of the Centre of International Studies at the University of Cambridge. He is a fellow of Sidney Sussex College and of the British Academy. Amongst his recent publications are (editor and contributor): The New Interventionism, 19911994: United Nations Experience in Cambodia, Former Yugoslavia and Somalia (Cambridge University Press, 1996), World Politics: Progress and Its Limits (Polity Press, 2000); and (editor with Gene Lyons) International Human Rights in the Twenty-first Century: Protecting the Rights of Groups (Rowman and Littlefield, 2003).

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Barbara Metzger Barbara Metzger is currently an Associate at the Centre of International Studies in Cambridge and received her Ph.D. in history from the University of Cambridge in 2001. From 2001 to 2005, she was a Senior Researcher with the Cambridge Carnegie Project on Complex Power-sharing and Self-determination Disputes and has lectured at the University of Cambridge on human rights history, law and institutions in the international arena. More recently, she has been preparing her thesis on the League of Nations and Human Rights for publication. Her research and teaching interests are the history of human rights and international governance. Brendan O’Leary Brendan O’Leary, B.A. (Oxon.), Ph.D. (LSE), is Lauder Professor of Political Science and Director of the Penn Program in Ethnic Conflict. Recent co-authored and co-edited books include Terror, Insugency and the State (2007); The Future of Kurdistan in Iraq (2005); The Northern Ireland Conflict: Consociational Engagements (2004); and Right-Sizing the State: The Politics of Moving Borders (2001). O’Leary has acted as a constitutional and political advisor to governments, parties and international organizations on and in Northern Ireland, Somalia, KwaZulu Natal, Nepal, and Kurdistan. He is presently running a Sawyer-Mellon seminar series on Power-sharing in Deeply Divided Places. Francesco Palermo Francesco Palermo is Associate Professor of Comparative Constitutional Law in the Faculty of Law of the University of Verona. He is also a Lecturer at the University of Trento, Senior Researcher at the European Academy of Bolzano/Bozen and Visiting Professor at Vermont Law School. He obtained his Ph.D. in comparative constitutional law at the University of Innsbruck. Main research fields are comparative, European, and sub-national constitutional law, minority rights, and European integration. Anthony Regan Anthony Regan is a Fellow in the State, Society and Governance in Melanesia Project in the Research School of Pacific and Asian Studies at the Australian National University, Canberra, Australia. His main field of research is the law and politics of constitutions, conflict and reconciliation, and the design of the state as part of post-conflict political settlements. He lived and worked in Papua New Guinea and Uganda from 1981 to 1996, and has been living in Bougainville since August 2002. He has been a constitutional adviser to the governments of Papua New Guinea and Uganda. He has worked in Bougainville since 1981, and advised Bougainvillean parties to the negotiations with the PNG government on the political future of Bougainville (1999–2004). He has had some involvement in the Solomon Islands and Sri Lankan peace processes, and the East Timor constitution-making process.

Biographies

Andrew Reynolds Andrew Reynolds, Associate Professor of Political Science, received his M.A. from the University of Cape Town and his Ph.D. from the University of California, San Diego. Reynolds is interested in democratization, constitutional engineering, and electoral politics and has worked for the United Nations, the International Institute for Democracy and Electoral Assistance (IDEA), the National Democratic Institute (NDI), the International Republican Institute (IRI), the Organization for Security and Co-operation in Europe (OSCE), and has served as a consultant on issues of electoral and constitutional design for Afghanistan, Angola, Burma, Fiji, Guyana, Iraq, Indonesia, Jordan, Kenya, Liberia, Northern Ireland, Sierra Leone, South Africa, the Sudan, and Zimbabwe. He has received research awards from the U.S. Institute of Peace, National Science Foundation, and Institute on Global Conflict. Among his books are Electoral Systems and Democratization in Southern Africa (Oxford, 1999); Election ’99 South Africa: From Mandela to Mbeki (St. Martin’s, 1999); Elections and Conflict Management in Africa (USIP, 1998), coedited with T. Sisk; and the edited book The Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy (Oxford, 2001). Ulrich Schneckener Senior Fellow at the German Institute for International and Security Affairs (Stiftung Wissenschaft und Politik), Berlin, Germany. Research interests: international conflict and crisis management, civil wars, international terrorism, and counter-terrorism. Recent Publications: (ed. with Stefan Wolff ) Managing and Settling Ethnic Conflicts (London: Hurst, 2003). Auswege aus dem Bürgerkrieg (Frankfurt a.M.: Suhrkamp, 2002). Philip Towle Philip Towle is Reader in International Relations in the Centre of International Studies at Cambridge University. He has worked for the Foreign and Commonwealth Office and the Australian National University, and has taught in Cambridge since 1980. His recent books include Enforced Disarmament (Clarendon 1997); and Democracy and Peacemaking (Routledge 2000). Ketevan Tsikhelashvili Ketevan Tsikhelashvili holds a B.A. degree in International Relations from Tbilisi State University (Georgia) and an M.A. degree in International Relations and European Studies from the Central European University, Budapest, Hungary. She has an extensive experience of working with international and local organizations and as a researcher, journalist, and an expert on conflict and ethnic minority issues (NATO Parliamentary Assembly, Brussels, Belgium; European Center on Minority Issues, Flensburg, Germany; and Transitions Online, Prague, Chech Republic). She has also worked as a senior political analyst at the Foreign Policy Research and Analysis Center, Ministry of Foreign Affairs of Georgia.

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Currently, she works with the Center for OSCE Research (CORE) at the University of Hamburg as an external researcher/staff member, as a researcher at the International Center on Conflict and Negotiation (ICCN) in Tbilisi, and as a consultant of Friedrich Naumann Foundation in Georgia. Mark Turner Mark Turner is Professor of Development Policy and Management at the University of Canberra. He has extensive experience of research and consultancy in politics and public sector management in many countries of the Asia-Pacific region, including the Philippines, Vietnam, Laos, Cambodia, Thailand, Vietnam, Indonesia, Kazakhstan, Papua New Guinea, and Vanuatu. His recent books include Decentralisation in Indonesia: Redesigning the State (Canberra: Asia Pacific Press, 2003) and Central-Local Relations in Asia Pacific: Convergence or Divergence? (Houndmills and New York: Macmillan and St Martin’s, 1999). Marc Weller Marc Weller is the Director of the European Centre for Minority Issues, in Flensburg, Germany. His writings mainly focus on conflict management, issues of international law, and minority rights. He has acted as legal advisor to several governments and organizations, and a member of international peace processes. Dr Weller is also a Reader in International Law at the University of Cambridge and a Fellow of the Lauterpacht Research Centre for International Law and Hughes Hall. He is also the Director of the Carnegie Project on Resolving Self-determination Disputes through Complex Power-sharing and of the Cambridge Rockefeller Project on Restoring an International Consensus of the Rules Governing the Use of Force. Stefan Wolff A political scientist by background, Stefan Wolff is Professor of Politics at the University of Nottingham. In his research and consulting work, he specializes in the prevention, management, and settlement of ethnic and religious self-determination conflicts and in post-conflict reconstruction of deeply divided and wartorn societies, with a particular focus on institutional design. He has extensive expertise in Northern Ireland, the Balkans, and the Middle East, and has also worked on a wide range of other conflicts elsewhere, including Central and Eastern Europe, Africa, and Southeast Asia. Wolff ’s publications to date include six books and over twenty journal articles and book chapters. Among his books are Disputed Territories: The Transnational Dynamics of Ethnic Conflict Settlement (2002); The German Question since 1919 (2003); Managing and Settling Ethnic Conflicts (co-edited with Ulrich Schneckener, 2003); and Peace at Last? The Impact of the Good Friday Agreement on Northern Ireland (with a foreword by Lord Alderdice; co-edited with Jörg Neuheiser, 2002). In addition, he is the founding editor of The Global Review of Ethnopolitics (www.ethnopolitics.org), a quarterly, peer-reviewed online journal dedicated to the study of ethnic conflicts and their management around the globe.

Biographies

Nathalie Ubilava Nathalie Ubilava is a freelance consultant focusing on financial services industry and multilateral international donor organizations. Her corporate consulting experience includes strategic marketing and market research both in developed and emerging economies. Nathalie has completed projects ranging from econometric modelling of retail network performance to offer construction for web-based financial portal. While at Corporate Value Associates (Boston, MA, USA), she formulated customer segmentation to support cross-sales and customer acquisitions strategy for a global provider of financial services. Nathalie’s work in emerging markets involves multiple projects in her native Georgia, mainly under the US Agency for International Development. In this respect, while with Booz-Allen & Hamilton Inc., Nathalie designed and executed a survey to qualify and quantify the economic impact of land reform in the Republic of Georgia. The results ultimately informed the drafting of national legislation on land reform. In Georgia, Nathalie has also devised and implemented several surveys and econometric analyses of local real estate markets and transport-generating industries. Niall Johnson After undergraduate studies at Macquarie University and the University of New South Wales (both in Sydney, Australia) and an M.A. from Wilfrid Laurier University (Canada), Niall Johnson completed his Ph.D. at the University of Cambridge.

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763

Index

A Aaland Islands  xiii, 316 Abkhaz  19, 349 n. 7, 350, 351, 352, 389 Abkhazia  41, 347, 348, 349, 350-353, 354, 355, 356-357, 358, 359-361, 363, 366, 374, 377-378, 379, 389-391, 392, 428, 447, 458459, 505, 506, 515-516, 525, 526, 547-548, 612, 628, 638 n. 1, 650 n. 2, 653, 654, 658, 660, 661, 334, 678 accountability  12, 14, 48, 84, 86, 92, 93, 95-97, 105, 116, 189, 190, 419, 442, 443, 449, 452, 491-492, 577, 578, 610, 611, 613, 615-616, 617, 620, 622, 624, 625, 643, 707, 708 Aceh  xiii, 388, 470 affirmative action, see also quotas  53 n. 3, 54, 92, 94, 537, 549-550 Africa(n)  xi, xiii, 9, 10, 11, 12, 27-28, 577, 614, 616, 619, 702 American  638 African National Congress (ANC)  472 African Union (formerly  Organization of African States)  10, 27, 470 Albania(n), see also Albanian population in Bosnia and Herzegovina, Albanian population in Kosovo, Albanian population in Macedonia  266 n. 4, 270, 393, 423, 585, 676, 678, 679 n. 19 Greater  266, 268, 301, 518, 588, 589 diaspora  467-468 apartheid  6, 24, 468

America/n, see also United States of America  6, 14, 15, 47, 50, 63, 68, 70, 93, 114, 161, 162-163, 166, 189, 191, 219, 468, 495, 619, 621, 636, 691, 692, 694, 717 Latin  57 South  9 Spanish  27 Argentina  9, 568, 611 American Convention on Human Rights  631 ASEAN (Association of Southeast Asian Nations)  166, 168, 181, 470, 534, 550 Asia(n)  8, 10, 168 Asian Development Bank  174, 473 assimilate  5, 57, 67, 604 assimilation(ist)  10, 15, 47, 48, 58, 67, 97, 109, 126, 156, 351, 643, 652, 691, 717 association (with a/other state/s)  xvi, 21, 28, 29, 33, 49, 55, 136, 237, 391, 394, 445 partial  27, 49 Australia/n  34, 127, 129, 133-135, 144-145, 149-150, 413, 472-473, 476, 477, 479, 481, 482, 496-497, 534, 564, 569, 620, 693-694 Austria/n  50, 72 n. 7, 335 n. 22, 373, 568, 667, 670, 674, 676, 681, 691, 692, 693, 696 authoritarian  9, 202 autonomy  ix, x, xiii, xiv-xv, xvi, xvii, 5, 34, 43, 45, 49, 51, 52, 54-55, 56, 64, 72, 106, 116, 117, 125, 128, 136, 141, 142, 144, 145, 146, 147, 155, 156, 157, 159, 161, 164, 167, 168, 180, 203, 205, 209, 214, 221, 239, 244, 247, 256, 257, 260, 263, 307, 308, 310, 311,

766

Index 312, 313, 314, 315-316, 317, 318-319, 320, 323, 327, 329, 331, 334, 335-336, 341, 343, 349, 350, 391, 392, 396, 399, 403, 412, 413, 418-419, 423, 427, 428, 432, 434, 440 n. 3, 441, 444, 446, 448, 449, 464, 481, 489, 520, 538, 557, 563, 568, 581, 583, 587, 602, 629, 630, 633, 634-635, 638, 642, 651, 664, 665, 668, 670, 675, 683, 697, 698, 699, 700 n. 24, 701, 702, 706, 710, 714 n. 37 agreement/arrangements/settlements  x, xiii, xiv, xvi-xvii, 33 n. 7, 41, 125, 136, 137-138, 140, 143, 144, 145, 147, 150, 151, 152, 155, 157, 158, 159, 245, 313, 316, 317, 319-320, 326, 341, 388, 391, 405, 417, 423, 440 n. 3, 633, 642, 664, 665, 683, 699, 703, 706, 722 asymmetrical  xiii, 125, 388, 697, 700 communal  97-98 constitutional(ly entrenched)  56, 101-102 corporate legal  55 cultural  21, 203, 209, 407 de facto  128 dominion  64 economic  328, 538 educational  505 ethnic  196, 232, 238, 239 federal  239 fiscal  171, 173, 509, 511 group  56, 287 institutional  673 law-making  101 local/municipal  188, 319, 434, 679 non-territorial  55, 209 operational  144 personal  55, 423, 440, 441, 633 policy  539, 549, 552, 553 political  21, 551, 583 regional  539, 551 religious  209 n. 14 right of  645 segmental  203, 205, 285, 287-288, 412 symmetrical  125 territorial  21, 29, 55, 125, 126, 137, 138, 155, 156, 157, 158, 195, 196, 208, 283, 285, 287, 309, 311, 313, 316-317, 318, 335-336,

391, 393, 408, 423, 440 n. 3, 441, 448, 633, 704 autonomous, see also autonomous government  xiii, xiv, xvi, 8, 23, 32, 33 n.7, 36, 43, 49, 55, 56, 101, 136, 137, 138, 139, 142-143,144, 146, 148, 149, 150, 151, 152, 154, 165, 168, 169, 170, 173, 174, 175, 177, 178, 182, 183, 195, 198, 208, 214, 244, 256, 263, 273 n. 18, 308, 311, 313, 316, 317, 318, 319, 320, 322, 323, 325, 326, 328, 329, 331, 332, 333, 334, 335, 336, 338, 339, 341, 342, 343, 349, 351, 360, 391, 392, 402, 413, 414, 415, 416, 417, 418, 421, 422, 423, 426, 434, 436, 437, 440, 441, 442, 443, 444, 446, 447, 448, 473, 484, 505, 506, 508, 513, 521, 526, 542, 548, 551, 563, 568, 581, 582, 583, 584, 602, 608, 610, 633, 635, 640, 642, 644, 645, 652, 665, 682, 683, 684 n. 27, 685, 697, 703 B Badinter Arbitration Commission  28, 29, 35, 36, 38, 39-40, 197, 198-199, 278, 388, 389, 395 n. 20 Balkans  19, 355, 455, 475, 479, 480, 495, 496, 540, 541, 544-546, 584, 595, 610, 619, 686, 726 Baltic  8, 546 Republics  33, 38, 395, 396 Bangladesh  9, 12, 30, 40, 166, 568, 642 Banthustans  24 Basque(s)  29, 112, 316, 696 Belgium  50, 53, 54, 55, 57, 203, 468, 674, 681, 691, 692, 693, 696 Biafra  12, 18, 24, 30 blocking mechanism/powers/rights, see also veto  xiv, 50, 51, 54, 55-56, 262, 263, 400, 401, 487 border(s), see also frontier  6, 10, 43, 61, 64, 110, 134, 143, 199, 200, 206, 240, 266, 268, 295, 304, 319, 321, 332, 339, 365, 369, 370, 371, 414, 415, 423, 429, 467, 484, 547, 566, 579, 586, 587, 541, 654, 667, 668-672, 673-674, 676, 678, 687, 688 colonial  12

Index cross-/trans-  82, 93, 101, 105, 106, 107, 111, 121, 142-143, 152, 225, 236-237, 268, 274, 326, 332, 352, 362, 369, 377, 408, 467, 468, 479, 531, 537, 554, 555, 556, 667, 668-669, 670-672, 673, 674, 675, 676, 678, 679, 680, 681, 682, 683, 684, 687, 698-699, 700 external  218 control/guard/patrol  207, 218, 229, 234, 254, 256, 266, 268, 274, 369, 390, 542, 565, 567, 571, 572, 574, 580, 586, 588, 592 internal  10 international  8, 10, 175, 467, 468, 565 internationally recognized  10, 365, 396 Bosnia and Herzegovina (BiH)  xiii, xiv, 14, 19, 23, 31, 41, 51, 58, 167, 193-241, 244, 245, 249, 254, 255, 263, 282, 292, 389, 393, 394, 395, 396, 408, 409-413, 424, 430, 431, 432, 433, 434, 435, 437, 438, 439, 440, 443, 444, 445, 446, 449, 452, 454, 455, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 468, 470, 473-474, 475, 476, 477, 478, 479, 480, 483, 484, 486, 487, 488, 489, 491, 492, 493, 494, 495, 496, 497, 499, 505, 506, 518-520, 522, 525, 526, 528, 529, 532, 534, 540, 541, 542, 543 n. 9, 544, 560, 566-568, 572, 575 n. 1, 577, 579-581, 586, 596, 601, 603, 604, 607, 608, 609, 611, 612, 613, 621, 623, 633, 641, 642, 643, 645, 646, 647, 648, 650, 651, 652, 653, 658, 660, 663, 678, 680681, 685, 694, 695, 697-698, 699, 702, 704, 710, 711, 712, 713, 716, 717, 718 Albanian population in  xiv Croat population in  194-202, 205, 207, 208, 209, 210, 212, 213, 214, 216, 220, 221, 223, 226, 227, 228, 232, 233, 235, 237, 239, 240, 394, 409, 410, 411, 412, 434, 447, 448, 449, 455, 458, 459, 473, 483, 486, 519, 566, 579, 580, 678, 681, 697, 704, 717 n. 43 “Dayton Agreement/Peace Accords” (General Framework Agreement for Peace in Bosnia and Herzegovina) 1995  xiv, 41, 194, 198, 199, 201-238, 240, 245, 250, 254, 394, 369, 410, 412, 431, 455, 474, 486, 488, 518, 519, 542, 566-567, 579, 586, 601, 604 n. 11, 605, 607 n. 23, 613 n. 47, 633, 640, 641, 644, 646, 647, 648, 658,

660, 694, 695 n. 96, 697, 698, 702, 704, 710, 711 Muslim population in BiH  195, 196, 198, 199, 200, 209 n. 14, 409, 486, 566, 717 n. 43 Serb population in  193, 194-202, 205, 207, 208, 209, 210, 212-214, 215, 220, 222, 226, 227, 228, 230, 232, 237, 239, 240, 245, 409-410, 455, 458, 459, 483, 488, 566, 580, 652, 678, 681, 697, 702, 704, 715-716, 717 Vance-Owen Plan 1993  199-200, 220, 473, 483, 579 Bosniak  200, 201, 202, 205, 206, 208, 209, 210, 212, 213, 214, 222, 226, 228, 233, 237, 261, 282 n. 31, 295, 300, 455, 458, 459, 519, 579, 697, 704, 715-716 Bougainville  xiii, xvi, 29, 43, 125-159, 399, 408, 413-416, 420, 423, 426, 430, 431, 432, 433, 435-436, 437, 438, 439, 440, 443, 445, 446-447, 448, 449, 452, 458, 460, 462, 463, 464, 466, 468, 472-473, 473 n. 9, 476, 477, 478, 479, 481, 482, 485, 493, 494, 495, 496, 497, 505, 506, 507-509, 523, 525, 526, 532, 534, 540, 550, 551, 563-564, 569, 572, 581-582, 596, 597, 601, 602, 607, 608, 610, 612, 628, 633, 638, 640, 642, 643, 645, 650, 658, 659, 661, 665, 682-684, 693-694, 697, 698-700, 701, 702, 703, 709 Bougainville Peace Agreement 2001  43, 125, 132, 135-150, 399, 414, 416, 423, 440, 485, 508, 563, 582, 602, 608, 610, 614 n. 49, 633, 638, 640, 642, 644, 645, 647, 658, 659, 661, 665, 682, 699-700, 702, 709 British  14, 62-67, 69-111, 114-115, 119, 121-124, 127, 375, 401, 408, 419-420, 438, 439, 446, 471-472, 477, 482, 552, 554, 561, 568, 591-593, 603, 611, 615, 623, 639, 645, 651, 684-685, 694, 695, 696, 698, 702, 703, 708, 709 n. 31, 711, 712, 713, 714 Bulgaria/n  270, 309 n. 4, 310, 316, 327, 427, 540, 547, 568 Burma/Myanmar  xi, 9, 19, 29 C Cameroon  10

767

768

Index Canada  xv, 9, 13, 39, 50, 53, 54, 57, 636, 650, 652, 708, 718 Catholic/s  52, 63, 65, 67, 68, 70, 74, 93, 95, 96, 97, 100, 284, 295, 296, 456, 463, 465, 523-524, 543 n. 10, 560-561, 568, 591, 618, 640, 645, 661, 662, 696, 705, 717 n. 43 Caucasus  19, 347, 353 n. 14, 355, 360, 366, 369 n. 39, 429, 547, 594 ceasefire  37, 43, 67, 70, 71, 89, 100, 111, 112, 113, 115, 116, 118, 119, 130, 133, 182, 201, 215, 219, 222, 253, 256, 274, 277, 278, 279, 311, 345, 348, 350, 353, 356, 358, 362, 363, 367, 409, 429, 440, 477, 484, 485, 490, 580, 585, 586, 587, 588, 592, 593, 594, 701, 711 Chechens  29, 42, 389, 397, 696 Chechnya  xii, 8, 24, 25, 31, 36-37, 38-39, 42, 388 n. 1, 389, 397, 429, 653, 696 China  8, 41, 256 Christianity  72, 162 Christian/s  53, 54, 55, 97, 162, 163-164, 165, 167, 169, 171, 182, 184, 186, 191, 309, 398, 416, 512, 527, 550, 590, 661, 705 citizens  7, 12, 14, 17, 18, 48, 51, 53, 57, 67, 92, 97, 107, 113, 175, 176, 201, 208, 218, 229, 232, 236, 239, 250, 261, 270 n. 12, 271, 276, 280, 283, 285, 289, 295, 296, 298, 299, 301, 304, 305, 310, 320, 321, 327, 335, 410, 428, 430, 434, 440, 503, 504, 526, 561, 562, 577, 579, 621, 629, 633, 634, 636, 644, 645, 646, 648, 653, 660, 663, 687, 704, 705, 716 n. 38, 717 citizenship  170, 270 n. 12, 299, 320 n. 13, 417, 503, 524, 527, 528, 634, 637, 643, 646 coalition  15, 48, 51, 64, 72 n. 6, 73 n. 8, 74, 78, 83, 84, 85, 87, 90, 91, 93, 109, 117, 130, 131, 132, 139, 171, 194, 195, 204 n. 9, 208, 220, 223, 228, 230, 262, 273, 274, 275, 294, 300, 311, 655 n. 20, 433, 434, 448, 456, 459, 470, 487, 492, 694, 707, 708, 709, 714 Cold War  xiii, 8, 9, 12, 13, 16, 19, 41, 45, 533, 573, 577, 630, 636, 669, 670, 693, 696, 703 colonial  xii, xvi, 8, 10, 12, 25, 26, 27, 28, 29, 30, 40, 44, 49, 62, 63, 127, 128, 161, 162, 163, 164, 166, 405, 588, 615

anti-  9, 30 entity  xii, 24-26 post-  xvi, 9, 10, 50, 405, 620 self-determination  xii, 23, 24-26, 28, 29, 31, 33, 40, 42 colonialism  xii, 12, 13, 25, 26, 29, 30, 44, 61, 65, 128, 163-164, 620 communism/t  167, 194-195, 197 n. 5, 234235, 244, 270 n. 11, 273, 307, 312, 318, 329, 333, 335-336, 338, 339, 342, 532-534, 540, 541, 542, 546, 548, 710 n. 32, 716 community/ies  xiv, xvi, 13, 15, 32, 34, 43, 47, 49, 50, 51, 52, 53, 54, 55-56, 58, 61, 72, 84, 92, 93, 94, 97-98, 110, 114, 119, 120, 122 n. 31, 131, 149, 161, 163, 178, 180, 184, 185, 190, 197, 198, 202, 203, 204, 205, 208, 210, 212, 222, 228-230, 233, 237, 238, 240, 251, 259-260, 261, 263, 280, 284, 285, 286, 287, 293, 295, 296, 304 n. 68, 323, 325, 349, 350, 352, 354, 355, 357, 377, 393, 407, 419, 421, 424, 434, 443, 444, 445, 454, 455, 456, 460, 463, 464, 467, 468, 470, 476, 480, 490, 510, 511, 517, 521, 525, 527, 530, 531, 539, 544, 555, 556, 559, 560, 561, 562, 564, 566, 569, 573, 582, 588, 591, 592, 595, 608, 615, 627, 633, 634, 635, 636, 638, 639, 640, 641, 642, 648, 649, 670, 674, 678, 679-680, 682, 684, 685, 698, 699, 707, 711, 718 autonomous  635 civic  634, 637, 644, 653 cross-  50, 51, 55-56, 72, 73, 74, 75, 79, 80, 83, 85, 86, 90 n. 21, 103, 106, 107, 119, 463, 479, 545, 705 cultural  49, 169, 171, 175, 176, 177, 459, 512, 631, 641 ethnic  xiv, 48, 49, 61, 73, 87, 208, 243, 263, 272, 276, 283, 287, 288, 289, 290, 300, 375, 434, 441, 455, 484, 522, 528, 569, 588, 634, 635, 637, 641, 643-644, 653, 697, 698, 705, 706, 713 imagined  7 indigenous  171, 176, 177, 178, 459, 512 international  xv, xvi, 35, 37, 39, 40, 125, 132, 135, 143, 144, 149, 150, 157, 159, 193, 198, 199, 201, 203, 204, 207, 214-220, 221, 222, 223, 224, 228, 229, 233, 235, 238, 246, 252, 266, 267, 268, 270, 276, 277,

Index 289, 291, 292, 293, 300-301, 303, 304, 305, 313, 317, 355 n. 19, 378 n. 55, 402, 424, 429, 436, 437, 438, 439, 443, 444, 467, 468, 473, 474, 479, 480, 483, 484, 487, 496, 508, 541, 543, 569, 579, 588, 590, 662, 681, 704 linguistic  49, 639, 696 local  127, 170, 191, 362, 408, 418, 423, 427, 441, 448, 562, 565, 569, 671 minority  261, 262, 265, 267, 269, 274, 280, 281-283, 285, 286, 294, 303, 448, 449, 454, 560, 562, 568, 589, 629, 630, 631, 637, 638 majority  11, 53, 265, 272, 285, 560 national  48, 49, 97, 98, 100, 205, 208, 210, 212, 248, 249, 250-251, 255, 272, 403, 539, 565, 640, 643, 678-679, 696, 697, 699 of states  13 political  41, 539 religious  48, 73, 209, 233, 284, 295-296, 441, 661 rural  128 self-government  52, 72 territorial  671 tribal  171, 178, 441, 512, 608 Comores and Mayotte  28 complex power-sharing, see also powersharing and consociational powersharing  xiii, ix, xiv, xvii, 5, 13, 61-124, 125-159, 161-192, 239, 285-288, 346, 347, 361, 363, 364, 376, 377, 378, 379, 387, 388, 405, 408, 409-429, 430, 431, 434, 436, 437, 442-445, 449, 451-466, 477, 531-557, 569, 571, 572, 596, 597, 627-665, 676, 692, 701, 705, 713 agreements  387, 504, 569, 599-626, 627, 628, 630, 635, 637, 638, 639, 641, 643, 645, 646, 652, 653, 676-686 arrangements  xvi, 156, 157, 203, 346, 388, 396, 401-402, 429-447, 453, 464, 568, 569, 571-597, 653 confederal  16 federal  16 settlements  ix, 19, 447

compliance  xiv, 148, 172, 173, 191, 252 n. 6, 253, 254, 412, 443, 449, 484, 485, 513, 519, 563, 585, 586, 632, 646, 648, 649-652, 659, 662, 663, 703 confederal  16, 37, 56, 61-124, 139, 392, 431, 446, 698 confederation/s  39, 56, 106, 108, 109, 315, 389, 399, 445, 532 conflict/s, see also dispute/s, ethnic conflict, self-determination conflict  x, xi, xii, xiii, xv, xvi, 5, 8, 12, 14, 15, 16, 18-19, 27, 29, 37, 42, 45, 47, 48, 49, 57, 58, 61, 64-67, 72, 88, 89 n. 20, 92, 96, 99, 100, 104, 111, 115, 123, 124, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 151, 152, 153, 154, 155, 156, 157, 159, 161-166, 167, 173, 174, 176, 186, 188, 191, 193, 194, 196, 198, 199, 200, 201, 202, 208, 215, 216, 234, 239, 244, 245, 253, 258, 265, 266, 267, 268-279, 280, 289, 290, 297, 298, 301-302, 303, 304, 308, 309, 310, 311, 312, 313, 315, 316, 336, 341, 345381, 387, 388, 390, 396, 398, 403, 404, 407, 408, 409, 410, 413, 414, 416, 419, 421, 424, 427, 428, 429, 433, 436, 438, 439, 440, 444, 447, 451, 465, 467, 468, 469, 470, 471, 472, 473, 474, 475, 477, 478, 480, 481, 483 n. 22, 484, 488, 493, 494-495, 496, 497, 498, 499, 503, 504, 505, 508, 509, 513, 515, 518, 523, 525, 526, 527, 530, 531, 532, 533, 534, 535-539, 540-551, 559, 560, 562, 563, 564, 565, 566, 575, 578, 579, 580, 581, 582, 583, 584-585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 599, 600, 602, 604, 609, 610, 611, 613, 616, 621, 622, 623, 624, 627, 628, 630, 632-635, 639, 641, 645, 647, 653, 659, 662, 663, 664, 665, 669, 677, 680, 683, 686, 696, 698, 700, 701, 704, 711, 715, 718 armed  xi, 29, 30, 92, 111, 163, 174, 186, 191, 194, 201, 224, 239, 243, 269 n. 8, 279, 289, 308 n. 2, 309, 310, 311, 313, 314, 315, 342, 468, 503, 471, 592, 596 internal  ix, xi, 30, 129, 156, 343, 413, 416, 532, 533, 535, 547, 559, 610 international  29, 30, 469 n. 1 management  67-69, 378, 397, 445, 454, 474 n. 12, 475, 709

769

770

Index post-  xiv, 144, 153, 154, 193-241, 317, 347, 351, 356, 363, 379, 406, 414, 438, 444, 453, 474, 479, 486, 497, 503-504, 507, 522, 523, 526, 527, 529, 530, 533, 535, 544, 556, 571-572, 577, 578, 579, 589, 596, 597, 676, 687, 701 prevention  238, 276, 588, 647 regulation  351, 357, 360, 365, 448, 628, 635, 692, 693 resolution  11, 168, 291, 304, 307, 346, 347, 358, 379, 445, 449, 468, 469, 470, 534, 535, 537, 539, 541, 551, 571, 578, 585, 647, 677, 678, 710, 718 secessionist  ix, xvii, 37, 151, 413, 468 separatist  467 settlement  ix, 346, 363-366, 377, 378, 419, 442, 444, 449, 477, 579, 670, 676, 677, 678, 683, 684 violent  18, 50, 125, 127, 132, 408, 532, 545, 595, 700 Congo  12, 19, 468, 713 consociation  47-58, 61-124, 408, 445, 455, 572, 592, 633, 692, 696, 697, 703, 704, 706, 707, 709, 710, 711, 712, 713, 716, 718, 719 consociational  15, 16, 49, 50, 51, 52, 54, 55, 56, 57, 68, 69, 70, 72, 73, 79 n. 12, 83, 87, 88, 90, 97, 100, 109, 110, 114, 378, 394, 407, 453, 628, 635, 684 n. 28, 691, 692, 693, 694, 696-718 agreement  87, 693, 704, 711 n. 34 arrangements  52, 58, 86, 120, 124, 203, 267, 700, 705, 708 decision-making  51, 57, 123 democracy  50, 205, 285, 287, 684 n. 28 executive  51, 707-708 institution  51, 705 power-sharing, see also power-sharing and complex power-sharing  16, 51, 204, 408, 713 settlement  56, 68, 693, 708 consociationalism/t  ix, xiv, xvii, 203, 204, 263, 454, 456, 459, 469, 691, 692-703, 704, 706, 707, 708, 709-718, 719 constitution  xv, xvi, 5, 14, 16, 22, 23, 31, 32, 33, 34, 36, 38, 39, 42, 53, 54, 56, 65, 100,

105, 108, 109, 117, 121, 136, 138, 139, 140146, 147, 150, 151, 152, 154, 165, 177, 179, 189, 195, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 219, 224, 228, 229, 230, 232, 240, 244, 246, 247, 250, 258, 259, 261, 263, 265, 270, 271, 280, 283, 284, 287 n. 37, 290 n. 40, 294, 295-296, 310, 311, 318, 319-320, 322, 323-325, 333, 334, 335, 336, 337, 341, 343, 349 n. 4, 388, 389, 390, 391, 394, 396, 398, 399, 413, 414, 416, 423, 424, 426, 430, 433, 438, 440, 482, 488, 491, 516, 518, 548, 560, 583, 599, 600, 601, 602-604, 605, 607, 614 n. 49, 617, 621, 624, 627, 632, 633, 638, 639, 644, 648, 658, 664, 668 n. 1, 675, 677, 679 n. 20, 680, 681, 699, 704 n. 28 constitutional, see also constitutional self-determination  39, 48, 51, 55, 56, 57, 64, 67, 71, 73, 79, 85, 89, 97, 100-102, 104, 105, 107, 111, 118, 121, 125, 126, 128, 129, 136, 137, 139, 147, 151, 152, 157, 158, 171, 197 n. 4, 198, 203, 207, 208 n. 13, 210, 211, 213, 214, 229, 237, 240, 243-263, 265 n. 1, 271 n. 14, 279, 280, 282, 284, 288, 291, 292, 293, 294, 301, 303, 305, 323, 333, 335, 341, 343, 364, 365, 389, 394, 395, 399, 404, 409, 412, 414, 419, 420, 423, 424, 427, 432, 439, 440, 445, 446, 447, 448, 449, 451, 452, 479 n. 16, 490, 516, 521, 522, 539, 552, 566, 583, 600, 601, 602, 603, 605, 621, 627, 633, 638, 639, 640-641, 646, 647, 648, 658, 659, 660, 665, 669, 671, 674-676, 685, 699, 700, 706, 711, 714 amendment/s  51, 213, 280, 282, 284, 288, 291, 292, 293, 294, 295, 296, 481 n. 20, 614 n. 50, 638, 639, 641, 648, 679 arrangement/s  xv, 15, 31, 53, 55, 146-147, 205, 568, 580, 588, 593, 604 court  211-212, 213, 214, 218-219, 223, 229, 231, 235, 236, 248, 249, 250, 271 n. 13, 283, 322, 338, 341, 391, 392, 393, 411, 427, 487, 488, 489, 600, 606, 607, 612, 675, 685 law  32, 37, 139, 141, 147, 148, 150, 151, 152, 153, 414, 668 reform  12 settlement(s)  18, 44, 88, un-  103, 213, 229, 376, 595 Corsica/n  29, 388

Index Council of Europe  232, 240 n. 27, 313, 315, 316, 318, 325, 331, 335, 396, 474, 475, 477, 481, 488, 489, 520, 583, 617, 620, 631, 639, 641, 643, 670-671, 672, 695 n. 6, Committee of Ministers  218, 231, 649, 671 n. 2 Parliamentary Assembly (PACE)  336, 338 n. 28, 343, 642 Croatia  14, 23, 34-36, 45, 194-198, 200, 201, 202, 209, 218, 220, 221, 223, 224, 225, 228, 232, 233, 237, 244, 245, 395, 396, 409, 486, 495, 567, 579, 642, 652, 680, 681 n. 24, 698 Croatian Declaration of Independence  14 Serb population in  14, 29, 198 Cypriot  53, 705 Cyprus  24, 38 n. 12, 53, 54, 55, 58, 388389, 469, 470, 495, 699, 705, 713 Annan Plan  38, 695, 699 Constitution 1960  53-54, 705 Greek Cypriots  54, 705 Turkish Cypriots  53, 54 Czech/ Republic  9, 22, 547, 642, 668, 670, 676 Czechoslovak/ia  22, 654 D decision-making  xiv, 51, 54, 57, 79, 81, 123, 128, 137, 173, 194, 204 n. 7, 210, 217, 228, 283, 343, 365, 371, 372, 374, 394, 407, 424, 429, 431, 443, 449, 464, 476, 537, 628, 638, 680, 681, 700 decolonization, see also colonial  9, 10, 11, 13, 14, 19, 25, 26, 29, 44, 193 demilitarisation  94, 104, 111, 113, 117, 122, 125, 136, 147-149, 255, 257, 368, 404, 586, 587, 592, 593, 594, 701, 702, 703, 712, 719 democracy/ies  9, 13, 14-15, 43, 50, 58, 69 n. 3, 204, 205, 222, 265, 279, 285, 287, 342, 343, 419, 443, 449, 451, 454, 464, 481 n. 20, 543, 599, 600, 603, 617, 619, 620, 621, 622, 630, 643, 663, 684 n. 28, 692, 695, 700, 707-709

democratic  xii, xv, 7, 8, 9, 10, 11, 13, 15, 20, 22, 28, 39, 50, 51, 56, 58, 66, 70, 71, 79, 83, 87, 91, 92, 93, 95, 116, 118, 119, 147, 157, 186, 194, 195, 202, 216, 217, 220, 221, 234, 238, 239, 246, 247, 249, 256, 257, 259, 266, 273, 275, 283, 285, 308, 318, 338 n. 28, 339, 340, 357, 376, 377, 388, 389, 404, 422, 443, 449, 451, 452, 453, 455, 459, 465, 492, 539, 573, 577, 592, 595, 599, 602, 610, 620, 621, 622, 640, 642, 643, 644, 649, 652, 662, 687, 692, 707-709, 714, 715, 717 n. 42, 718, 719 democratize/ation  7, 13, 58, 63, 123, 217, 235, 237, 238, 454, 455, 489, 616, 618, 619, 620, 622, 669, 686, 714 n. 36 devolution  68, 69 n. 3, 73, 77 n. 11, 80, 92 n. 22, 101, 117, 120, 121, 122, 179, 316, 400, 408, 410, 412, 416, 433, 434, 435, 448, 518, 529, 534 n. 3, 538, 550 diplomacy  65, 114, 161, 168, 265, 276, 348, 356, 357, 363, 375, 378 n. 55, 482, 486-487, 491, 493, 496, 579 disenfranchise  10, 18, 20, 23, 25, 26, 27, 29, 30, 244, 405 disintegrate/ion  xi, 11, 194, 198, 307, 312, 409, 444, 578 dispute/s, see also conflict, self-determination dispute  5, 11, 28, 49, 70, 102 n. 24, 126-128, 130, 145, 146, 156, 168, 196, 198, 199, 212, 239, 240, 249, 250, 286, 298, 302, 305, 311, 317, 343, 347, 367, 414, 416, 426, 427, 428, 436, 438, 468, 491, 507, 508, 516, 518, 531, 532, 542, 551, 560, 564, 571, 581, 582, 583, 584, 585, 587, 588, 589, 592, 594, 595, 601, 618, 623, 645, 649, 653, 669670, 675, 703, 712 armed  350 internal  413, 532, resolution  394, 683 secessionist  126 settlement  ix, 136, 145-146, 149, 172, 249, 346, 359, 379, 391, 393, 399, 400, 527, 584, 593, 676, 684 n. 27, 685, 686 dissolution  xvi, 10, 22, 28, 31, 32, 34, 35, 36, 38-39, 40, 41, 117, 119, 193, 194, 195, 291, 309, 395, 421, 428, 446, 468, 517, 550, 642, 701

771

772

Index E East Bengal  12 East Timor  8, 10, 13, 25, 26, 135, 150, 193, 559, 572 economic, see also economic autonomy, economic rights  xvii, 11, 13, 15, 20, 44, 65, 66 n. 1, 126, 127, 130, 131, 140, 143, 144, 153, 154, 155, 165, 166, 168, 169, 172, 173, 174, 181, 198, 219, 226, 228, 234, 235, 272 n. 17, 297, 305, 307, 312, 314, 319, 320, 328, 329, 331, 332, 334, 337, 342, 343, 349, 350, 351, 352 n. 13, 357-358, 360, 361, 362, 364 n. 27, 365, 367, 368-369, 371, 373, 374, 375 n. 51, 376, 378 n. 55, 390, 393, 397, 413, 428, 429, 467, 468, 470, 471, 475, 479, 486, 495, 496, 497, 498, 506-507, 510, 514, 515, 528, 529, 531-557, 644-645, 664, 667, 669, 672, 681 n. 24, 682, 684, 687, 699 development  73, 107, 154, 166, 174, 183, 184, 185, 194, 283, 288, 296, 320, 324, 326, 417, 420, 427, 439, 489, 507, 258, 534, 541, 542, 545, 546, 553, 555, 591, 596, 670, 673, 674, 679 n.20 growth  174, 181, 504, 514, 534, 536, 537, 542, 556 in/equality  114, 129, 130, 347, 644, 710 exploitation  xii, 25, 645 institutions  54 opportunities  128, 163, 228, 530, 543, 644 policy/ies  78, 82, 153-154, 174-176, 234235, 328-330, 374, 422, 424, 491, 531-557, 669 reconstruction  193, 218, 488, 489, 490, 491, 542, 670 reform  219, 220, 234, 480, 572 resources  xiv, 129 socio-  163, 165, 169, 183, 185, 271-272, 289, 334, 351, 504-507, 525, 532, 534, 535, 543, 545, 551, 556, 563, 590 Economic Community of West African States (ECOWAS)  470 economy/ies  11-12, 107, 127, 174, 235, 236, 272, 287, 321, 324, 326, 328, 331, 334, 335, 342, 362, 364, 370, 377, 453, 490, 504, 507, 508, 523, 525, 528, 532-533, 534, 536, 537, 538, 539, 540, 541, 542, 544, 545, 546, 547,

549, 550, 551, 552, 553, 555, 556, 557, 578, 621, 667, 682, 687 education, see also right to education  15, 16, 52, 54, 55, 68, 73, 81-83, 97, 98, 105 n. 26, 106, 138, 153, 162, 163, 169, 170, 172-174, 178, 190, 191, 203, 209 n. 14, 225, 232-234, 250, 251, 260, 271-272, 282, 283, 285, 286, 287, 288, 296, 310, 321, 325, 326-327, 332, 334, 338, 375, 377, 393, 410, 412, 417, 419, 420, 422, 424, 427, 440 n. 3, 476, 489, 490, 503-530, 531, 538, 539, 543 n. 10, 544, 545, 546, 548, 550, 555, 563, 569, 590, 596, 625, 631, 632, 635, 639, 660, 661, 662, 663, 681 n. 24, 684, 698, 699 election(s)  xvi, 14, 43, 47-48, 71, 74, 75, 76, 77, 78 n. 12, 81, 83, 84, 85, 86, 87, 89, 90, 91, 103, 106, 114, 116, 119, 122, 123, 137, 139, 148, 150, 164, 165, 170, 179, 180, 181, 182, 186, 188, 189, 194, 195, 196, 204, 208 n. 13, 210 n. 16, 213, 217-218, 219, 220, 221, 222, 223, 224, 228, 234, 239, 248, 249, 253, 255, 256, 258, 259, 260, 262, 273, 274, 275, 278, 282, 283, 284 n. 33, 285, 286, 287, 290, 291, 298, 299-300, 302, 303, 304, 311, 314, 317, 318, 321, 325-326, 331, 332, 333, 334, 336, 337, 338, 349, 354, 368, 376 n. 53, 399, 422, 425, 426, 452-456, 459, 461-465, 466, 484, 485, 488, 489, 490, 491, 499, 548, 554, 578, 620, 621, 630, 663, 694, 695, 705, 706, 707, 709, 712, 713, 715-718 electoral  52, 65, 89, 99, 109, 110, 114, 115, 118, 119, 122, 136, 169, 188, 195, 218, 222, 224, 274, 284, 298, 321, 325-326, 340, 433, 444, 451, 452, 456, 464-465, 695, 705, 708, 717, 718 arrangements  451-466 commission  87 n. 15, 318, 339, 465, 466 competition  52 defeat  14 support  68, 89 systems  52-54, 86-91, 109, 204, 287, 300, 317, 326, 333, 407, 434, 451-454, 457-464, 627, 628, 692, 700, 704, 705-706, 708, 713-714, 715, 716 n. 40 emigration  65 enfranchise, see also disenfranchise  18, 23, 29

Index equality  37, 49, 66, 71, 72, 78, 83, 95, 9798, 106, 114, 117, 209 n. 14, 244, 280, 320, 397, 423, 599, 600, 604 n. 15, 620, 644, 647 in-  xi, xii, 129, 130, 347, 513, 645, 646 Eritrea  13, 22-23, 29, 42, 396 Ethiopia  xv, 13, 22-23, 29, 32, 42 ethnic(ally)  xvi, xvii, 10, 13, 14, 15, 26, 27, 28, 29, 32, 42, 51, 52, 53, 54, 55, 56, 57, 58, 63 , 69 n. 3, 98, 130, 134, 138, 165, 178, 185, 193, 196, 197, 199, 200, 204, 205, 207, 208, 210, 212, 213, 214, 218, 221, 224, 226, 232, 233, 238, 239, 240, 244, 245, 246, 248, 249, 250, 258, 259, 262, 263, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 307, 309, 312, 320 n. 13, 342, 346, 347, 348, 349, 350, 351, 352, 353, 354, 360, 368, 393, 394, 403, 405, 407, 412, 413, 416, 419, 421, 426, 427, 428, 433, 434, 440 n. 3, 442, 448, 453, 454, 456, 460, 462, 464, 504, 516, 517, 518, 519, 526, 527, 531, 532, 533, 540, 543, 545, 548, 550, 559, 560, 564, 566, 568, 569, 572, 582, 584, 588, 589, 590, 603, 624, 628, 634, 643, 644, 653, 664, 668, 669, 670, 675, 677, 679, 680, 681, 684, 687, 691, 704, 706, 707, 709, 710, 713, 714 n. 37, 715, 716, 717 cleansing  14, 24, 40, 130, 138, 197, 200, 221, 224, 225, 240, 278, 352, 579, 584, 628, 641, 704 communities/groups, see also ethnic minorities  iv, 7, 20, 27, 48, 49, 61, 73, 87, 138, 162, 208, 243, 245, 248, 249, 259, 263, 270, 272, 274, 276, 283, 286, 287, 288, 289, 290, 293, 300, 307, 311, 312, 313, 33, 342, 351, 375, 434, 440 n. 3, 441, 453, 455, 456, 459, 464, 484, 505, 522, 528, 530, 543, 559, 562, 567, 569, 572, 588, 612, 618, 627, 634, 635, 637, 643, 644, 647, 653, 667, 669, 674, 679 n. 20, 681, 698, 704, 705, 706, 713, 715 conflict/dispute  7, 58, 89 n. 20, 377, 413, 424, 530, 532, 541, 542, 560, 568, 610, 627-628, 632, 635, 641, 645, 646, 647, 653, 668, 669-670, 688

cross-/trans-  2, 88, 204, 286, 463, 464 704, 706, 713, 715, 719 expulsion  48 identity  125, 127, 172, 193, 260, 413, 455, 456, 504, 510, 528, 551, 581, 638, 672, 704, 717, 718, 719 inter-  88, 213, 216, 217, 219, 222, 234, 235, 238, 240, 241, 266, 267, 269, 270-272, 274, 276, 300, 303-304, 309, 310, 317, 342, 350, 351, 355, 397, 412, 423, 437, 444, 448, 463, 474, 475, 476, 484, 530, 532, 662, 676, 692, 693, 707, 711 n. 34, 713, 715, 716, 717, 718 multi-  37, 48, 88 n. 18, 193, 195, 238, 265, 280, 304, 307, 313, 455, 456, 457, 459, 464, 567, 587 peoples  xi parties  52, 88, 89 n. 20, 243, 258, 259, 262, 272, 275, 277, 278, 285, 288, 293 n. 44, 295, 302, 303, 426, 433, 434, 463, 589, 705, 710, 716, 717 politics  xvii, 240, 241, 249, 522 rights  98, 717 self-determination  19, 348 violence  xv, 134, 274, 424, 541, 551, 559569, 663 ethnicity  7, 57, 194, 199-200, 204, 213, 307, 348, 353, 376, 464, 515, 516, 517, 596, 608, 615, 630, 710 ethnocentric/ism  668, 692, 704, 710, 715 cultural  307, 345 n. 1, 348, 360, 377, 631, 641 national  66, 68, 72 n. 4, 78, 87, 88, 89, 96, 99, 100, 111, 115, 217, 307, 492 n. 30, 515, 548, 583, 696, 697, 716, 718 political  19, 307, 308, 309, 312, 313, 348, 678 territorial  xiv, 19 Europe/an  6, 8, 9, 36, 41, 50, 66, 73 n. 8, 89 n. 19, 104, 108, 121, 127, 161, 214, 215, 229, 240-241, 307, 316, 317, 496, 516, 517, 525, 537, 540, 544, 550, 553, 556, 567, 591, 639, 669, 670-674, 675, 696, 700 Central  7, 19, 311, 426, 545, 546-547, 548, 577, 609, 672

773

774

Index East/ern  7, 10, 19, 199, 270 n. 11, 271, 311, 320 n. 13, 426, 459, 465, 479, 480 n. 18, 518, 522, 545, 546-547, 548, 577, 603, 609, 613, 616, 672, 686, 694, 717 n. 42 West/ern  467, 523, 566, 667, 692 European Charter for Regional or Minority Languages  232, 271 n. 14, 631, 633, 649, 659 European Convention on Human Rights (ECHR)  73, 94, 98, 250, 251, 599, 603604, 606, 609, 612, 617, 631, 642, 644, 649, 651, 658, 659, 662 European Court of Human Rights  13 n. 3, 212, 218, 250-251, 474, 477, 487-489, 617, 698 n. 6 European Framework Convention on the Protection of National Minorities (FCNM)  98-99, 232, 271 n. 14, 331, 631, 633, 641, 644, 649, 658, 659, 662, 672, 687 n. 31 European Union (EU), formerly European Community  5, 28, 35, 37, 51, 73, 78, 105, 106, 107, 108, 110, 121, 199, 214, 218, 229, 255, 256, 263, 267, 276, 278, 280, 291, 294, 295, 299, 300-301, 302, 303, 305 n. 69, 355, 357-358, 365, 372-374, 379, 394, 395 n. 20, 369, 399, 400, 427, 440, 470, 473, 475, 474, 477, 478, 479-480, 482, 483, 485 n. 25, 486, 488, 489, 490-491, 496, 497, 514, 520, 528, 534, 535, 538, 540, 541 n. 7, 542, 543, 544-545, 547-548, 550, 553, 554-555, 556, 562, 577, 589, 595, 618, 620, 668, 673-674, 687, 693, 694, 699 European Commission  301, 370 European Court of Justice  439 European Parliament  73 n. 8, 80, 89 n. 19, 122 executive, see also executive power-sharing  47, 51, 53, 54, 55, 56, 57, 73, 76-80, 83, 84-86, 87 n. 16, 92 n. 22, 93, 94, 102, 104, 105, 106, 107, 111, 112, 116-117, 120, 123, 165, 167, 171, 179, 181, 183, 208, 217, 258, 285, 316, 322, 324-325, 326, 331, 334, 340-341, 343, 368 n. 36, 372, 374, 392, 394, 409, 410, 411, 415, 416, 417, 418, 420, 421, 422, 425-426, 427, 437, 446, 452, 456, 459460, 464, 488, 489, 490, 513, 549, 554, 559,

574, 583, 628, 662, 682, 700, 706, 707-708, 709, 712, 713, 714, 718 F Falklands  9 federal/ative  xvi, 16, 22, 32, 33, 34, 35, 36, 37, 38, 39, 43, 45, 49, 53, 55, 56, 57, 73, 101, 102, 105, 108, 109, 110, 124, 136, 146, 193, 194, 207, 209, 212, 239, 244, 316, 341, 347, 348, 349, 359, 366, 371, 388, 389, 392, 394, 399, 402, 407, 423, 431, 434, 446, 538, 542, 543, 580, 581, 584, 628, 642, 668, 674, 679, 681, 704, 707, 713, 717 n. 42 federalism/t  47, 108, 204, 205, 283, 445, 446, 549, 668, 687 federacy/tion  8, 10, 19, 22, 33, 34, 35, 36, 38, 39, 40, 47-58, 61-124, 196, 198, 200201, 203, 205, 206, 208, 209, 210, 211, 212, 213, 214, 219, 221, 223, 225, 228, 231, 232 233, 235, 236, 237, 238, 245, 247 n. 2, 255, 263, 273 n. 18, 341, 407, 412, 423, 433, 445-447, 534, 540, 541 n. 7, 636, 668, 697, 702, 717 integrative  56-57 pluralist  49, 56, 57-58 Finland  xiii, 650, 652 Flemish  53, 55 fragmentation  13, 28, 50, 87 n. 15, 89, 193, 204, 460, 464, 518, 540 n. 5 France  10, 12, 199, 388, 470 n. 4, 483, 533, 681 n. 24, 682 freedom  xiii, 13, 65 of assembly  628 of association  12, 628, 636, 637, 697 of speech  12 French  6, 11, 53, 55, 197 n. 4, 198, 276, 278, 456, 483, 693 frontier  27, 35, 638, 646, 672, 698 n. 14 G Gabon  12 Gagauzia/n  xvi, 32, 43-44, 307-343, 391, 400, 408, 412, 418, 419, 420, 421-423, 426, 430, 431, 432, 434, 435, 437, 438, 439, 440,

Index 441, 442, 444, 445, 446, 447, 449, 452, 459, 464, 475, 476, 477, 478, 479, 481, 482, 483, 484, 493, 494, 495, 496, 497, 505, 506, 513-514, 523, 526, 528, 548, 549, 550, 568, 572, 582-584, 596, 602, 603, 628, 641, 650, 651, 658, 660, 664, 681, 682, 694, 697, 699 Law on the Special Legal Status of Gagauzia 1994  xv-xvi, 32, 43, 311, 31433, 335, 337, 339, 343, 391, 400, 568, 583, 633, 638, 639, 641, 644, 658, 660, 681, 682, 699 Gagauz/es  xvi, 32, 308, 309-310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 325, 326, 327, 328, 329, 331, 332, 333, 334, 335, 336, 337, 338, 339, 341, 391, 414, 421, 422 , 423, 433, 448 genocide  12, 14, 24, 40, 48, 58, 164, 209 n. 15, 358 Georgia/n  x, xiii, 19, 41, 345 n. 1, 346-379, 388, 389, 390-391, 426, 429, 438, 447, 452, 454, 457, 458, 459, 460, 462, 464, 465, 466, 468, 475, 478, 479, 481, 483 n. 22, 484, 490-491, 495, 505, 506, 515, 526, 532, 534, 540, 546 n. 11, 547, 548, 594-595, 604, 609, 612, 629, 658, 659, 664, 665, 678 Germany  22, 199, 302, 404, 454, 470 n. 4, 553, 652, 670, 674, 676 n. 14, 681 Gibraltar  9, 21 Goa  8 governance/government autonomous  xvi, 43, 56, 101, 143, 144, 146, 148, 149, 151, 154, 183, 392, 415, 416, 442, 508, 610, 635, 665, 682, 683 central, see also central state  xi, xii, xiii, xiv, xvi, 18, 19, 22, 23, 24, 30, 32, 35, 37, 39, 40, 43, 44, 45, 47, 56, 102, 126, 128, 130, 138, 155, 165, 170, 171, 173, 176, 178, 180, 184, 185, 190, 195, 200, 202, 205, 263, 280, 281, 287, 308, 309, 311, 317, 328, 331, 332, 333, 337, 341, 342, 347, 393, 395 n. 18, 396, 397, 400, 405, 407, 408, 412, 415, 419, 420, 422, 428, 430, 432, 435, 437, 443, 445, 446, 447, 467, 468, 496, 498, 509, 510, 513, 522, 538, 539, 549, 590, 672, 675, 677, 680, 681, 686, 687, 697, 698 coalition  78, 83, 110, 230, 262, 273, 274, 294, 311, 433, 434

co-  xiv, 45, 114, 243, 244, 246, democratic  10, 20, 28, 247, 644 devolved  69, 70, 108, 449, 684 domestic  67 federal  57, 101, 347, 349, 359, 407, 580, 707 good  xiii, xvi, 12, 43, 137, 139, 262, 399, 424, 615, 620, 624, 627, 628, 646, 659, 700 effective  xv, 40, 41 interim  44, 243-263, 392, 397, 581, 713 international  x, 36 local  47, 82, 89, 93, 94, 114, 122, 127, 131, 132, 140, 145, 169, 170-171, 172, 176, 179180, 181-182, 188, 191, 271 n. 13, 282, 283, 287, 288, 299, 338, 407, 415, 416, 418, 419, 423, 430, 431, 441, 543, 679 minority  24 multi-ethnic  2, 8 multi-national  205 multi-party  51 municipal  281, 297, 413 national  129, 130, 131, 133, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 155, 156, 157, 158, 159, 170, 171, 173, 178, 191, 308, 389, 393, 398, 399, 414, 415, 416, 417, 418419, 427, 428, 430, 433, 437, 440, 447, 479, 508, 509, 511, 512, 514, 518, 539, 549, 550, 551, 555, 563, 582, 590, 596, 608, 682 n. 26, 683 parliamentary  51, 67 provincial  128-129, 132 n. 7, 138, 144, 146, 151, 152, 153, 154, 170, 171, 174, 414, 418, 508, 551 regional  170-172, 173, 174, 175-176, 177, 178, 190-191, 430, 433, 440, 441, 443, 509, 510, 511, 512, 513, 553, 555, 590 representative  47-48, 205, 653 self-  xiii, xiii, xiv, xvi, 16, 25, 42, 43, 45, 49, 50, 52, 54-55, 56, 57, 68, 72, 73, 76, 115, 168, 214, 221, 223, 240, 243, 247, 248, 256, 257, 258, 259, 260, 261, 262, 271, 280, 281, 283, 284, 286, 287, 296-297, 299, 349, 356, 364, 388, 389, 392, 393, 402, 403-404, 405, 419, 423, 424, 428,

775

776

Index 434, 441, 464, 489, 490, 517, 521, 543, 551, 630, 633, 635, 638, 639, 640, 641, 642, 646, 652, 653, 674, 679 n. 20, 680, 686, 700 n. 24, 703 territorial  49, 56, 672 governmental  ix, xiv, 52, 65, 72, 108, 346, 410, 439, 650 inter-  61-124, 136, 145, 158, 171, 190, 346, 359, 374-375, 429, 471, 478, 698, 710 non-  167, 238, 251, 266, 272, 373, 375, 410, 439, 628, 650, 672, 679 Great Britain/Britain, see also United Kingdom  10, 43, 63-67, 100-102, 108, 121, 124, 199, 400, 414, 419, 430, 464, 470, 552, 591-592, 593, 594 n. 4, 696 Greece  270, 305, 427, 469, 541 n. 7, 544, 545, 699 Greek  54, 388, 705 H human rights, see also freedom, minority rights, and rights  ix, xii, xiii, xvii, 11, 12, 13, 20, 30, 31, 37, 44, 68, 71, 92, 93, 94, 99, 117, 120, 138, 141, 143, 144, 145-146, 150, 151, 152, 157, 158, 177, 178-179, 198, 206, 207, 218, 219, 230-231, 232, 235, 245, 250251, 257, 272, 276, 288, 291, 317, 326, 357, 362, 390, 394, 396, 397, 398, 400, 425, 471, 474, 476, 484, 488, 489, 503, 504, 521, 525, 531, 560, 561, 564, 567, 574, 578, 579, 582, 599-600, 601, 603, 604, 606, 609, 610, 611, 612, 615-618, 619-620, 621, 622, 623, 624, 625, 627-665, 687, 692, 694, 695, 701, 702, 703, 719 humanitarian  19, 29, 30, 31, 36, 37, 40, 44, 45, 154, 245, 253, 255, 257, 299, 340, 352 n. 12, 358, 362, 379, 397, 470, 471, 473, 474, 479, 480, 485, 489, 490, 491, 542, 578, 585, 606, 610, 612, 646, 647 I Iceland  34, 395 n. 15 identity  6, 7, 10, 18, 20, 26, 32, 45, 56, 65, 97, 98, 100, 123, 127, 128, 155, 156, 162, 244, 261, 283, 392, 393, 397, 399, 405, 455, 456,

528, 530, 555, 584, 631, 636, 638-639, 643, 660, 680, 699, 704-707, 710, 717 community  283 cultural  21 ethnic  125, 172, 193, 413, 455, 504, 510, 528, 551, 581 group  21 legal  39, 41, 43, 243, 392, 400, 403 national  6, 10, 193, 320, 428, 679 political  7, 13, 100 regional  555 religious  672 territorial  28 imperial  8, 10, 15 imperialism/t  xii, 25, 64, 162, 551 India/n  xiii, 8, 9, 12, 14, 19, 29, 30, 40, 55, 72 n. 7, 146, 708 Muslim population in  14, 55 indigenous  363, 495, 508, 546, 559, 578, 602, 609, 624 indigenous people(s)/population  xii, 21, 161, 171, 172, 176, 177, 178, 179, 416, 459, 512, 622, 631, 640, 642 Indonesia(n)  8, 10, 13, 26, 164, 166, 167168, 175, 187, 388, 468, 473, 476, 477, 481, 550 insecurity  150, 167, 225, 231, 276, 305, 351 insurgency/ies  16, 19, 270-272, 591 insurgent(s)  67, 269 n. 7, 360, 370, 416, 525, 560, 562, 563, 565, 568, 588 integration  28, 29, 47, 48, 49, 54, 58, 63, 67, 68, 97, 123, 126, 127, 132, 136, 137, 138, 139, 142, 155, 156, 157, 158, 169, 185, 215, 240, 241, 263, 277, 285, 305, 348, 354, 373, 391, 392, 400, 413, 455, 479, 480, 504, 522, 526, 530, 537, 540, 545, 581, 607, 611, 612, 640, 661, 667, 670, 687, 692, 695, 701, 710 dis-  xi, 194, 198, 312, 409, 444 re-  12, 221, 232, 234, 352, 363, 373, 426, 480 n. 19, 485, 525, 575, 578, 703 integrationism/t  xvii, 48, 89, 155, 157, 378, 628, 635, 691, 692, 697, 703, 704, 706, 709-718 integrative  x, xiii, xvii, 57, 204, 238, 239, 240, 285, 398, 528, 681, 692, 703-718, 719

Index international, see also international involvement actor(s)/agents  xi, xiii, xvi, 19, 35, 42, 134, 183, 204, 222, 240, 293, 299-300, 315-317, 334, 341, 353, 356, 358, 378, 379, 405, 438, 439, 468, 469, 484, 488, 489, 490, 491, 492, 493, 494, 495, 497, 498, 499, 543, 636 agency/ies  38, 41, 204 n. 9, 216, 217, 219, 228, 520, 535, 609, 681, 682, 683 agreement/s  143, 146, 260, 425, 614, 628, 681 assistance  xiii, 304, 336, 343, 520 body  164, 180, 481, 488 borders  8, 10, 175, 467, 468, 565 community  xv, xvi, 35, 37, 39, 40, 125, 132, 135, 143, 144, 149, 150, 157, 159, 193, 198, 199, 201, 203, 204, 207, 214-220, 221, 222, 223, 224, 228, 229, 233, 235, 238, 246, 252, 266, 267, 268, 270, 276, 277, 289, 291, 292, 293, 300-301, 303, 304, 305, 313, 317, 355 n. 19, 378 n. 55, 402, 424, 429, 436, 437, 438, 439, 443, 444, 467, 468, 473, 474, 479, 480, 483, 484, 487, 496, 508, 541, 543, 569, 579, 588, 590, 662, 681, 704 humanitarian law  29, 30, 253, 352, 578, 585, 606, 610, 612 institutions  203, 207, 214, 218, 443, 542, 569, 718 law  xii, 17, 21, 23, 24, 27, 28, 31, 40, 42, 65, 104, 313, 317, 356, 359, 390, 392, 396, 397, 405, 483, 609, 610, 617, 621, 630, 638, 642, 645, 653, 654, 668, 669, 671, 673, 679 legal personality  22, 30, 38, 389, 397, mediation/or  199, 200, 278, 379, 398, 429, 474, 498 norms  24, 58, 94, 392, 467, 599, 603 obligation/s  143, 206, 207, 317, 414, 484, 680 n. 23 observers  149, 253, 325, 326, 354 n. 17, 464, 472, 585 organizations  58, 203, 214, 216, 217, 218, 219, 230, 233, 238, 240 n. 27, 256, 265, 302 n. 63, 355, 340, 348, 355 n. 20, 356, 363, 365, 370, 378, 379, 437, 439, 468,

470, 471, 474, 475, 476, 485, 496, 497, 498, 560, 584, 586, 588, 639, 693, 694 recognition  8, 9, 12, 14, 24, 131, 197, 198, 200 relations  6, 7, 34, 140, 206, 516, 542, 668, 673, 677, 679, 681, 682, 683 society  5-6, 7, 12, 14, 16 support  30, 129, 135, 150, 183, 197, 299, 304-305, 363, 530 system  xii, xiii, 17-18, 22, 29, 35, 45, 646 International Labour Organization (ILO)  631 Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries  21, 631, 640 intervention  30, 31, 40, 58, 67, 134, 145, 201, 203, 217, 219, 220 n. 20, 240, 292, 427, 429, 436, 438, 442, 443, 453, 468, 469, 482, 487, 491, 492 n. 30, 494, 496, 498, 533, 536, 557, 575, 578, 584, 591, 635, 681, 693-695, 696, 703, 718 armed/military  31, 36, 41, 485, 585, 694, 699 international  193, 204, 217, 218, 222, 238, 695, 703, 710-711 non-  xii, 18, 30, 31, 44 interventionism/ist  58, 193, 217, 358 involvement  xiii, 30, 74, 129, 133, 134, 135, 146, 168, 176, 179, 219, 232, 255, 259, 290, 292, 298, 299 n. 57, 319, 347, 352, 355, 359, 360, 362, 363, 378, 390, 391, 397, 419, 438, 449, 498, 542, 568, 578, 581, 583, 584, 589, 590, 591, 595, 596, 597, 632, 673, 694 international  x, xiv, xvii, 42, 45, 125, 126, 134, 159, 180, 198, 214, 234, 237, 245, 315, 318, 356, 358, 360, 388, 393-394, 396, 439, 444, 447, 495, 496, 497, 498, 533, 590, 677, 678 third-party  467-499 Iraq  5, 31, 40, 58, 571, 578, 579, 694, 707, 713 Ireland, see also Northern Ireland  xv, 43, 61, 62, 63, 64, 65, 66, 67, 68, 70, 72, 74, 90 n. 21, 100, 101, 104, 105-106, 107, 108, 109, 110, 120, 121, 124, 400, 401, 408, 414, 419, 420, 438, 446, 449, 470, 479, 538, 544,

777

778

Index 552-553, 554, 555, 592, 603, 614, 621, 642, 649, 684, 694 n. 4, 696, 698, 700, 708-709 irredenta/ism/t  8, 9, 11, 58, 65, 420 Israel  50, 225, 468, 470, 610, 708, Italy  xiii, 199, 334, 470 n. 4, 553, 568, 674 n. 12, 681 n. 24, 682 Ivory Coast  12 J Jews  50, 213, 296, 708 judicial/ry  17, 47, 54, 56, 57, 92, 99, 107, 131 n. 6, 138, 140, 141, 142, 151, 152, 155, 177, 220, 235, 236, 245, 246, 248, 249, 250, 250, 279, 330, 393, 409, 416, 417, 419, 421, 422, 424, 426, 427, 436, 437, 441, 452, 484, 489, 572, 573, 574, 599, 600, 604, 606, 608, 609, 612, 613, 614, 617, 618, 619, 620, 624, 627, 632, 640, 648, 652, 662, 663, 669, 683, 685, 686, 699 jurisdiction  5, 22, 33 n. 8, 55, 73, 84, 86, 97, 100, 101, 102 n. 24, 103, 104, 105, 106, 109, 114, 120, 175, 177, 212, 245, 247, 288, 297, 319 n. 10, 371, 390, 399, 414, 422, 428, 539, 549, 550, 554, 555, 567, 601, 606, 608, 634, 637, 642, 653, 659, 668, 669, 674, 683 K Kashmir  29, 470 Katanga  12, 19, 24, 387 Kenya  398, 456-457, 568 kin state  27, 204, 244, 310, 313, 319, 419, 420, 467, 470, 496, 610, 668, 678, 683, 699 Kosovars/ns  29, 247, 250, 251, 455, 489490, 491, 521, 522, 646 Kosovo  x, xiv, xv, xvi, 11, 19, 25, 31, 34, 35, 36, 38, 39, 40, 42, 193, 196, 229, 243-263, 266, 268-270, 277, 292, 297, 299, 304, 305 n. 69, 393, 397, 402-405, 408, 410, 412, 413, 423-426, 427, 430, 431, 432, 433, 434, 435, 437, 438, 439, 440, 443, 444, 445, 446, 447, 448, 449, 452, 454, 455, 456, 457, 458, 460, 461, 462, 463, 464, 465, 466, 468, 470, 474, 475, 476, 477, 478, 479, 483, 484-485, 486-487, 488, 489-490, 491, 492, 493, 494, 495, 496, 497, 505, 506, 520-523,

525, 526, 528, 532, 534, 540, 541, 542-543, 544, 559, 560, 565-566, 568, 569, 572, 584588, 589, 596, 602, 603, 604, 607, 608, 609, 612, 613, 614, 621, 633, 635, 636, 638, 639, 640-641, 643, 645, 646, 647, 648, 649, 650, 651, 652, 653, 658, 659, 660, 661, 662, 678, 679, 680, 694, 695, 698, 699 Albanian population in  11, 42, 243, 244, 245-246, 248, 249, 258-259, 261, 263, 266, 268, 269 n. 7, 299, 393, 422-423, 463-464, 483, 491, 495, 520, 522-523, 526, 565-566, 584, 587, 636, 646, 655, 660, 678, 679 n. 19 Constitutional Framework for Provisional Self-government in Kosovo 2001  229, 258, 260, 262, 263, 424, 490, 521, 522, 566, 605, 633, 635, 638, 639, 640, 641, 646, 647, 648, 658, 660 Muslim population in  248, 566 Rambouillet Interim Agreement for Peace and Self-Government in Kosovo 1999  xv, 42, 243-263, 402, 403, 404, 486, 585, 586, 678, 699 Serb population in  244, 248, 249, 250, 258-259, 261, 262, 263, 403, 423-424, 434, 448, 455, 456, 458, 463-464, 489, 491, 520, 522, 526, 565-566, 584, 586, 587, 636, 660, 662 Kurdish/s  5, 31, 40, 696 Kurd/s  5, 696 L Laos  550 Latin America  57 Latvia  34, 38, 395, 547 n. 12, 642 Lebanon  50, 55, 115, 468, 693, 705 Muslim population in  53, 54, 705 League of Nations  8, 584 legislative  47, 51, 52, 56, 72, 73, 74, 81, 83, 87 n. 15, 92, 99, 102, 103, 104, 108, 129, 152, 171, 179, 186, 217, 248, 249, 258, 261, 263, 284, 293, 299, 311, 315, 316, 322, 326, 333, 334, 336, 341, 374, 391, 392, 394, 409, 410, 412, 421, 453, 454, 455, 457, 458, 488, 489, 535 n. 4, 574, 601, 628, 640, 677, 705, 707, 708, 718

Index legislature  xiv, 53, 54, 56, 57, 105, 136, 144, 147, 157, 167, 170, 249, 322, 407, 411, 416, 417, 421, 422, 434, 452, 453, 454, 457, 459, 460, 461, 464, 574, 604, 615, 698, 700, 704, 705, 706, 707, 708, 714 n. 37 legitimate  xii, 5, 7, 10, 13, 54, 71, 89, 180, 183, 268, 289, 329, 412, 413, 440, 445, 447, 465, 591, 633, 638, 641, 709 n. 13 il-  30 legitimacy  xii 12, 15, 17, 18, 39, 43, 134, 168, 194, 197, 268-269, 290-291, 302, 307, 352, 360, 376, 377, 400, 443, 444, 449, 459, 464, 465, 496, 498, 503, 555, 615, 630, 646 Liechtenstein  32 Lithuania  33, 395, 547 n. 12, 642 loyalist/s  66, 67, 68, 70, 71, 86, 89, 96, 111, 113, 114, 118, 119, 524, 591, 592, 662, 711, M Macedonia, Former Yugoslav Republic of  ix, xiv, 42, 58, 193, 196, 244, 265-305, 389, 393-394, 395, 396, 407, 408, 412, 426428, 430, 431, 432, 433, 434, 435, 437, 438, 439, 440, 444, 445, 446, 447, 448, 449, 452, 454, 457, 458, 459, 460, 461, 462, 464, 465, 466, 468, 474-475, 476, 477, 478, 479, 480, 482, 483, 484, 485, 487 n. 26, 492, 493, 494, 495, 496, 497, 505, 506, 516-518, 525, 526, 528, 532, 534, 540, 541, 543-544, 561-563, 566, 568, 572, 585, 588-590, 596, 603, 607, 608, 609, 612, 613, 614 n. 50, 633, 638, 639-640, 641, 642, 645, 646, 648, 649, 650, 651, 658, 660, 661, 663, 678, 679-680, 693, 694, 698, 699, 700, 710, 711, 712, 713 Albanian population in  265, 266, 267, 268-281,282-284, 285-291, 292-299, 300, 301-302, 303-304, 305, 393, 426-427, 433, 434, 444, 448, 475, 485, 516-518, 526, 543, 561-562, 568, 587, 588-590, 678, 679 n. 19, 700 n. 24 Muslim population in  274, 284, 295 Ohrid Framework Agreement 2001  42, 267, 273 n. 19, 277-305, 393-394, 426427, 434, 475, 479 n. 16, 483, 516-517, 543-544, 562, 589-590, 633, 638-639,

640-641, 644, 647, 648, 658, 660, 661, 679-680, 693, 699 Serb population in  270, 295, 300 majoritarian  51, 56, 57, 65, 88, 89, 279, 419, 449, 457, 458, 461, 543, 696, 697 n. 12, 700 n. 22, 708 majorities  47, 48, 54, 55, 56, 67, 70, 73, 74, 77, 88, 110, 281-282, 286, 287, 296, 307, 442, 451, 453, 458, 705, 707 n. 30, 708 majority  11, 14, 15, 21, 33, 43, 53, 54, 56, 64, 65, 67, 68, 70, 71, 72, 74, 75, 76, 77, 80, 91, 94, 95, 97, 99, 100, 101, 103, 104, 109, 114, 116, 119, 120, 124, 135, 147, 155, 163, 167, 169, 171, 186, 191, 197, 206, 207, 208 n. 13, 210, 211, 212, 213, 225, 227, 239, 246, 249, 258, 261, 262, 263, 265, 266, 268, 269, 271, 273, 277, 281, 282, 283, 285, 286, 287, 288, 293, 294, 295, 296, 298, 300, 303, 320, 321, 323, 324, 336, 339, 341, 343, 351, 388, 400, 401, 407, 409, 412, 414, 416, 419, 420, 423, 454, 456, 457, 459, 460, 464, 465, 466, 488, 512, 516, 517, 519, 560, 561, 562, 591, 599, 622, 630, 635, 636, 639, 641, 644, 654, 667, 676, 679 n. 20, 682, 683, 693, 705, 707, 708, 709, 712, 713, 715, 716, 718 Malaysia/n  9, 22, 40, 72 n. 7, 146, 164, 166, 175, 183, 187-188, 189, 191, 468, 473, 477, 481, 550 Mali  40, 188, 388 Maori  53 Mauritania  9 military  xiv, 11, 19, 29, 30, 31, 36, 47, 64, 65, 66, 70, 92, 111, 114, 130, 131, 134, 137, 161, 162, 164, 167, 176, 182, 183, 187, 189, 191, 193, 197, 198, 201, 202, 203, 214-216, 219, 222, 224, 240, 245, 253, 254, 255, 256, 266, 269 n. 7, 274, 275, 276, 279, 302, 303, 349, 352, 353, 357, 358, 362, 364, 367, 376, 378, 397, 400, 428, 429, 467, 471, 474, 476, 477, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 494, 496, 531, 559, 566, 567, 571-597, 694, 699 Mindanao  161-192, 408, 412, 413, 414, 416-419, 422, 430, 431, 432, 433, 435, 436, 437, 438, 439, 440, 441, 442, 444, 445, 446, 447, 448, 448, 449, 452, 458, 459, 460, 462, 464, 466, 473, 476, 477, 478, 479, 480 n. 19, 481, 485, 492, 493, 494, 495,

779

780

Index 496, 497, 505, 506, 507, 509-513, 523, 525, 526, 527, 528, 529, 530, 532, 534, 540, 550551, 563, 572, 590-591, 596, 602, 604, 608, 612, 613, 628, 633, 638 Mindanao Peace Agreement 1996  166189, 191, 447, 509-510, 512, 527, 528, 590-591, 606, 633, 677 Muslim population in/Moro  33 n. 7, 161165, 167, 169, 171, 176, 177, 181-182, 183, 188, 189, 191, 416-417, 418, 422, 431, 433, 441, 447, 448, 449, 459, 473, 481, 483, 494, 496, 505, 506, 507, 509-512, 525, 527, 528, 550-551, 536, 590, 608, 639, 651, 652, 653, 661, 663, 648, 650, 651, 652, 653, 658, 665, 677, 694, 697, 699, 701 minority/ies  xii, xiv, 5, 10, 11, 14, 15, 2021, 24, 47, 53, 54, 55, 56, 58, 64, 65, 66, 67, 70, 72, 88, 97, 99, 109, 110, 120, 125, 138, 155, 157, 158, 163, 165, 178, 200, 208, 225, 227, 229, 232, 233, 236, 239, 244, 245-246, 261, 262, 263, 265, 266, 267, 268, 270, 271, 272, 280, 281, 282, 283, 286, 287, 288, 289, 290, 294, 299, 300, 303, 313, 315, 328, 331, 351-352, 396, 403, 416, 419, 426, 434, 438, 441, 442, 448, 449, 451, 452, 453, 454, 455, 456, 458, 459, 463, 464, 465, 466, 489, 491, 494, 512, 514, 516, 517, 519, 520, 526, 527, 560, 561, 562, 568, 589, 606, 608, 612, 618, 624, 629, 630, 631, 634, 635-637, 638, 639, 641, 642, 643, 644, 645, 647, 648, 652, 653, 654, 667-688, 694, 695, 696, 697, 698, 699, 700, 701, 706, 708, 717 n. 42 cultural  65, 100 disenfranchised  8 ethnic  20, 47, 138, 272, 282, 291, 309, 316, 342, 516, 560, 562, 567, 618, 630, 631, 637, 651, 651, 652, 662, 663, 696, 697, 703 language  271, 280-281, 283, 296, 310, 332, 526, 638, 662 linguistic  20, 631, 637 national  20, 21, 47, 58, 67, 98, 99, 100, 231, 313, 317, 318, 332, 642, 672, 696, 697 n. 11, 704 protection  54, 55, 99, 143, 198, 232, 396, 639, 641, 673 religion  639, 640 religious  20, 100, 639, 664

returns  225, 231 rights  ix, xiv, 8, 13, 20-21, 35, 67, 72, 98, 99, 125, 143-144, 152, 158, 231, 232, 238, 239, 245, 259, 266, 268, 270, 271, 272, 274, 277, 280, 285, 288, 291, 300, 317, 326, 332, 377, 390, 396, 476, 484, 486, 490, 491, 525, 526, 531, 543, 588, 618, 627665, 672, 678, 694, 700 Moldova  x, xiii, xvi, 19, 32-33, 41, 43, 307343, 388, 389, 391-392, 400, 418, 421-423, 433, 434, 435, 437, 438, 440, 441, 444, 447 n. 5, 448, 449, 452, 457, 458, 459, 460, 461, 462, 464, 465, 466, 468, 475, 478, 479, 481 n. 20, 484, 495, 505, 506, 513, 514, 526, 532, 534, 540, 547, 548-550, 551, 568, 582-584, 607, 633, 641, 643, 651, 658, 659, 660, 664, 665, 681, 682, 699 Morocco  9, 26 Montenegro, see also Union of Serbia and Montenegro  22, 23, 196, 197, 244, 399, 400, 447, 560 municipal  170, 172, 177, 179, 258, 260, 271, 278, 281, 284, 296-297, 300, 330, 408, 410, 411, 412, 413, 417, 418, 419, 425, 426, 427, 428, 434, 435, 448, 454, 464, 518, 522, 562, 568, 635, 679, 700 n. 24 municipality/ies  xv, 32, 174, 179, 182, 190, 225 n. 23, 232, 259, 260, 263, 281, 282, 283, 287, 288, 290, 296-297, 300, 321, 323, 393, 410, 411, 425, 426, 427, 428, 522, 529, 672 Muslim/s, see also Muslim population in Bosnia and Herzegovina, Muslim population in India, Muslim population in Lebanon, Muslim population in Macedonia, Muslim population in Mindanao, Muslim population in Sudan  14, 53, 54, 55, 163, 392, 394 Muslim League  14 N nation/s  xv, 6, 7, 8, 15, 28, 32, 33, 34, 39, 42, 48, 49, 57, 61, 63, 98, 109, 156, 162, 172, 187, 193, 195, 199, 203, 205, 208, 209, 210, 211, 212, 213, 216, 232, 233, 234, 237, 239, 240, 244, 270, 312, 348, 349, 390, 395 n. 20, 451, 488, 514, 546, 619, 696, 697 n. 11, 699

Index -building  63, 65, 456 -state  6, 15, 48, 62, 105, 212, 214, 280, 295, 456, 534, 538, 539, 553, 667, 668, 696, 697 national, see also ethno-national, national government, national minorities, national self-determination  6, 7, 8, 47, 48, 49, 51, 52, 54, 56, 57, 58, 65, 76, 98, 100, 108, 126, 129, 132 n. 7, 135, 136, 137, 138, 139, 140, 142, 144, 145-146, 147 n. 17, 148, 150, 151, 155, 156, 158, 159, 164, 165, 167, 169, 170, 171, 172, 173, 174, 176, 177, 178, 180, 183, 184, 191, 194, 195, 199, 201, 206, 208, 209, 210, 212, 213, 214, 228, 231, 233, 236, 249, 251, 259, 273 n. 18, 275, 276, 278, 280, 281 n. 30, 290, 295, 300, 301, 303, 308, 310, 311 n. 6, 312, 319, 320, 322, 324, 325, 326, 327, 331, 333, 336, 337, 339, 343, 349 n. 5, 354 n. 18, 391, 393, 395, 398, 399, 411, 413, 414, 415, 417, 418, 419, 426, 433, 434, 435, 437, 440, 441, 444, 447, 448, 449, 452, 455, 456, 457, 459, 464, 468, 489, 503, 506, 507, 508, 509, 510, 512, 513, 514, 517, 519, 538, 539, 549, 550, 551, 553, 556, 561, 562, 563, 564, 567, 569, 571, 574, 582, 589, 590, 600, 602, 608, 611 n. 40, 617, 630, 633, 635, 638, 640, 641, 645, 648, 658, 660, 672, 675, 682, 683, 685, 693, 698, 699, 700, 704, 705, 717 n. 43 community/ies  48, 49, 73, 97, 98, 100, 110, 205, 208, 210, 212, 248, 249, 250, 251, 255, 403, 539, 565, 640, 643, 660, 678, 679, 697, 699 culture  6, 15, 50, 251, 320, 638 identity  6, 10, 98, 193, 251, 320, 428, 531, 678, 679, 699, 706, 717 liberation  xi, xii, 29-30, 33 n. 7, 34, 65, 164-166, 266, 416, 427, 473, 533, 563, 588, 590, 628, 663 security  11, 418, 574, 583, 590, 622, 645, 683, 685 sovereignty  9, 135, 581, 582, 667 sub-  136, 447, 458-459, 509, 517, 519, 549550, 635, 667-688 nationalism  xi, 5-16, 63, 83, 123, 172, 197 n. 5, 269 n. 8, 308, 513, 518, 539, 548, 705, 717 ultra-  9

nationalist  xi, 6, 7, 11, 14, 16, 61, 63-72, 74-79, 81-83, 87, 88, 90-92, 95-100, 104106, 108-111, 113-121, 123, 163, 194, 195-196, 203, 204, 205, 208 n. 13, 215, 217, 220, 221, 222, 223, 224, 227, 228, 230, 231, 234, 235, 237, 240, 307, 314, 347, 348, 349, 350, 353, 354, 360, 419, 455, 456, 472 n 6, 474, 482, 518, 519, 528, 555, 580, 609, 694, 695, 696, 698, 700 n. 22, 702, 705, 707, 713, 717, 718 nationality/ies  xv, 14, 32, 34, 42, 49, 57, 244, 249, 271, 280, 287, 294, 295, 309, 320, 327, 333, 336 n. 24, 347, 348-349, 397, 514, 516, 519, 527, 628, 643, 646, 654 negotiation  xiv, xv, 31, 34, 37, 39, 43, 67, 69-71, 72 n. 5, 73 n. 8, 76, 79 n. 12, 82, 83, 89, 103, 104, 111, 112, 114, 117, 119, 126, 129, 132-133, 134, 135, 139, 140, 141, 143, 145, 146, 150, 154, 155, 157, 166-168, 182, 186, 187, 189, 198, 199, 200, 202, 207 n. 12, 213, 220, 237, 240, 246, 255, 257, 262, 267, 277, 279, 289, 290, 302, 303, 314, 315, 317-318, 335, 338, 341, 345, 348, 352, 354, 356, 357, 360, 361, 362, 363, 364, 366, 371, 372, 373, 375, 378, 388, 396, 398, 404, 405, 414, 416, 419, 421, 427, 436, 439, 445, 469, 470, 472, 474, 476, 478, 480, 481, 482, 483, 486, 488, 494, 495, 496, 498, 515, 526, 544, 555, 580, 583, 585, 586, 589, 590, 591, 592, 593, 594, 595, 596, 602, 603, 614, 621, 623, 624, 627, 633, 624, 665, 682, 683, 694, 702, 707, 711, 712, 713, 714 Netherlands  49, 50, 55, 468, 691, 692, 693, 696 New Zealand  53, 133-134, 145 n. 16, 149, 413, 454, 470, 472, 473, 477, 479, 481, 482, 496, 497, 534, 564, 569, 693, 694 Nigeria  9, 19, 456, 457, 576 Norway  9, 470 North Atlantic Treaty Organization (NATO)  36, 201, 214, 218, 243, 244, 245, 254-255, 257, 268, 276, 277, 278, 290, 291, 292, 293, 294, 295, 301, 302, 304, 605 n. 69, 335, 403, 409, 470, 474, 475, 477, 478, 482, 485, 486, 487, 488, 489, 490, 497, 577, 584, 585, 586, 589, 590, 594 Northern Ireland, see also Ireland  xiii, xiv, xv, 31, 42, 43, 54, 55, 56, 58, 61-124, 203, 400-402, 407, 408, 410, 413, 414,

781

782

Index 419-421, 426, 430, 431, 432, 433, 453, 436, 437, 438, 439, 440, 443, 445, 446-447, 448, 449, 452, 456, 458, 459, 460, 461, 462, 464-465, 466, 468, 470, 471-472, 476, 477, 478, 479, 481, 482, 483, 485, 494, 495, 496, 497, 498, 505, 506, 523-524, 525, 526, 527, 528, 529, 531, 532, 535, 537, 538, 541, 543, 550, 551-556, 560-561, 562, 568, 572, 591-593, 596, 597, 601, 602, 603, 064, 607, 608-610, 611, 612, 613, 614, 615, 618, 621622, 623, 628, 633, 641, 643, 649, 651, 658, 660, 662, 684, 685, 693-694, 695, 696, 698, 701, 702-703, 705, 708-709, 710, 711, 712-713, 714, 717, 718 Anglo-Irish Agreement 1985  69, 72, 110111, 113-114, 121, 471, 479, 684, 698 Good Friday (Belfast) Peace Agreement 1998  xiv, xv, 43, 69-121, 400402, 419, 471, 482, 495, 535 n. 4, 543, 551-556, 592, 603, 609, 614, 618, 633, 639, 640, 641, 644, 647, 648, 649, 660, 684, 685, 694, 695, 700, 705, 707 O opposition  14, 15, 18, 22, 24, 32, 50, 51, 65, 84, 115, 131, 135, 156, 162, 165, 167, 175, 181-183, 186, 217, 221, 239, 240, 245, 253, 262, 273, 293, 295, 312, 318, 336, 339, 341, 354, 396, 487, 492, 524, 550, 593, 663, 692, 707, 708 Organization for Security and Cooperation in Europe (OSCE)  19, 214, 217218, 233, 246, 254, 255, 265, 266, 267, 271, 276-277, 278, 295, 299, 302, 310, 313 n. 8, 316, 317, 320 n. 12, 325, 328, 333, 334, 335, 336, 339, 340, 341, 352 n. 12, 355, 356-358, 364, 365-366, 367-368, 372, 373, 375, 376 n. 53, 379, 390, 391, 392, 397, 428, 249, 440, 465, 466, 470, 474-475, 477, 478, 481, 483, 484-485, 488, 489, 490, 491, 496, 497, 520, 548, 562, 565, 567, 569, 583, 584-585, 586, 589, 595, 617, 618, 620, 631, 638, 641, 643, 648, 649, 658, 661, 662, 663, 664, 665, 693, 695 n. 6, 715, 717 n. 44, 718 High Commissioner on National Minorities (HCNM)  271, 276, 277, 313 n. 8, 316-318, 333, 340, 475, 477, 483, 649, 663

P Palestine/ian  25, 225, 468, 470, 653, 696 Pakistan  12, 14, 19, 29, 30 Papua New Guinea  xvi, 125-159, 399, 413-415, 430, 435, 438, 449, 452, 457, 459, 461, 462, 463, 465, 472, 505, 506, 507, 534, 541, 546 n. 11, 551, 563, 581, 596, 602, 608, 682, 699-700, 701, 703, 709 Paraguay  9 paramilitary/ies  65, 66, 67, 68, 70, 77, 80, 96, 100, 111, 112, 113, 118, 119, 121, 197, 224, 245, 253, 268, 269 n. 7, 302, 312, 314, 353, 485, 487, 495, 531, 535 n. 4, 550, 552, 572, 573, 574, 476, 582, 584, 586, 587, 589, 591, 592-593, 597, 610, 613, 651, 662, 694, 695, 701-703, 711 partition  12, 14-15, 48, 58, 64, 65, 114, 121, 292, 389, 419, 434, 538, 711, 719 party/ies (political)  5, 15, 48, 51, 52, 65, 66, 68, 70, 71, 74, 75, 78, 79, 80, 81, 82, 84, 86, 87, 88, 89, 90, 91, 92, 95, 102, 104, 114, 119, 120, 121, 171, 181, 194-196, 200, 210 n. 16, 218, 220-221, 223, 234, 246, 261, 262, 269 n. 9, 273-274, 275, 282, 285, 288, 294, 300, 302, 312, 318, 329, 333, 335, 336, 349, 357, 397, 433, 454, 455, 456, 460, 461, 462, 463, 464, 548, 575, 592, 593, 594 n. 4, 695, 705, 706, 707, 708, 710 n. 32, 712, 716 list  52, 87-88, 90, 298, 454, 457, 461 multi-  51, 67, 72 n. 5, 114, 222, 342, 454, 462, 693 n. 1 system  52, 87, 88, 89, 407, 433, 434, 448, 451, 454, 461, 463, 464, 693 n. 1 peace  xiii, 5, 13, 16, 18, 24, 37, 45, 111, 119, 136, 146, 162, 165, 166, 168, 169, 180, 181, 182, 183, 184, 186, 187, 188, 191, 192, 194201, 202, 203, 215, 216, 235, 236, 257, 275, 297, 301-304, 345, 347, 348, 352, 354, 355, 356, 362, 363, 367, 369, 376, 378, 392, 410, 413, 416, 439, 453, 455, 467, 468, 472, 473, 474, 476, 478, 479, 481, 482, 483, 485, 486, 493, 494, 497, 504, 510, 515, 518, 521, 526, 527, 530, 551, 559, 560, 568, 569, 571, 579, 584, 587, 603, 623, 624, 627, 694 n. 4, 700703, 704, 710, 711, 718 agreement, see also Bougainville Peace Agreement, Dayton Peace Agreement,

Index Good Friday (Belfast) Peace Agreement, Mindanao Peace Agreement, Sudan Peace Agreement  439, 525, 526, 661 process  61-124, 125, 132-135, 137, 139, 146, 149-150, 151, 156, 157, 159, 167, 183, 185, 186, 187, 211, 216, 219, 221, 237, 239, 240, 348, 353, 356, 357, 358, 360, 364, 365, 366, 367, 379, 443, 475, 478, 482, 484, 486, 488, 493, 494, 495, 497, 548, 552, 568, 664, 685, 701, 702, 711, 712, 714 settlement  24, 111, 187, 193, 216, 453, 560, 565, 568, 587, 693, 698 peaceful  35, 36, 37, 49, 65, 70, 71, 83, 109, 120, 164, 172, 177, 188, 189, 245, 257, 259, 301, 304, 307, 311, 335, 336, 342, 347, 350, 354, 355, 376, 377, 416, 426, 479, 480, 496, 532, 543, 551, 559, 563, 584, 592, 594, 667, 672, 684, 700 peacekeeping  12, 19, 26, 193, 214, 215, 255, 308 n. 2, 311, 356, 357, 358-359, 361, 363, 365, 367, 409, 429, 439, 472, 473, 475, 478, 486, 487, 491, 559, 567-568, 569, 594, 694 people/s  xii, xv, xvi, 6, 7-8, 11, 12, 14, 15, 17, 18, 21-22, 25, 26, 27, 28, 32, 33, 34, 39, 42, 43, 44, 49, 53, 57, 58, 61-64, 66, 83, 84, 97, 98, 100, 101, 109, 121, 123, 125, 128, 129, 130, 131, 137, 138, 151, 152, 154, 161, 164, 165, 170, 173, 174, 176, 177, 178, 179, 182, 183, 184, 185, 186, 187, 188, 189, 195, 197, 206, 207, 209, 210, 212, 213, 225, 228, 232, 239, 252, 257, 259, 270, 272, 275, 278, 280, 290, 295, 303, 305, 309, 311, 312, 313, 314, 317, 318, 319, 320, 321, 322-332, 333, 337, 338-341, 343, 348, 349, 352 n. 13, 397, 391, 392, 395, 398, 400, 401, 402, 403, 404, 411, 413, 414, 416, 417, 420, 421, 422, 426, 428, 440, 443, 445, 450, 452, 458, 509, 513, 524, 527, 529, 548, 549, 550, 551, 555, 556, 559, 560, 561, 564, 565, 568, 581, 583, 587, 594, 613, 628, 631, 640, 641, 643, 653, 654, 660, 661, 664, 669, 681, 699, 700, 708, 710, 711, 716, 718 colonial  29 ethnic  xi, 37 indigenous  xii, 21, 631, 640, 642

rights of  20, 21, 26, 27, 32, 65, 100, 397, 629-630 self-determination of  20, 21-22, 23, 26, 27-28, 32, 37, 65, 100, 387, 397, 629-630 Philippines  iii, 9, 33 n. 7, 161-192, 392, 416, 417, 418, 435, 437, 438, 444, 447, 452, 454, 457, 458, 459, 460, 462, 464, 465, 466, 468, 473, 505, 506, 507, 509, 511, 529, 534, 541, 546 n. 11, 550-551, 563, 590, 602, 607, 608, 612, 640, 641, 645, 651, 653, 658, 665 plebisicite, see also referendum/a  7, 21, 33 n. 7, 165, 170, 171, 186, 188, 376, 392, 642 plurality  51, 53, 459, 460, 706, 708 polls/ters  15, 115, 182, 196, 268 population/s  xi, xv, xvi, 5, 6, 8, 9, 10, 11, 12, 17, 20, 21, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 37, 40, 41, 42, 43, 45, 53, 54, 64, 65, 67, 93, 97, 125, 131, 132, 137, 138, 155, 156, 157, 162, 163, 167, 172, 174, 178, 182, 186, 189, 197, 201, 225, 228, 232, 238, 239, 240, 244, 245, 248, 262, 263, 266, 268, 269, 270, 271, 272, 273 n. 19, 274, 275-276, 277, 278, 280, 281, 282, 284, 286, 287, 288, 289, 290-291, 292, 293, 295, 297, 298, 300, 301, 302, 303, 304, 307, 309, 310, 311, 319, 320, 323, 326, 327, 334, 343, 349, 351, 352, 353, 369, 370, 388, 389, 392, 400, 401, 405, 409, 412, 413, 416, 420, 421, 426, 440-442, 455, 492, 504, 505, 507, 508, 509, 510, 513, 514, 516, 520, 522, 523, 525, 527, 528, 529, 539, 541 n. 6, 543 n. 10, 544, 550, 551, 560, 565, 569, 581, 584, 587, 588, 591, 594, 622, 623, 629, 640, 643, 645, 646, 651, 660, 670, 676, 693 n. 1, 697, 702, 705, 715, 716, 718 n. 45 Portugal  9, 25, 26, 544, 545 power, see also power-sharing  xii, xiii, 6, 14, 15, 30, 47-49, 56, 57, 65, 66, 67, 71, 76, 85, 89, 93, 95, 97, 98, 99, 102, 103, 104, 105, 115, 116, 117, 129, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 151, 152, 163, 165, 174, 179, 187, 199, 203, 204, 205, 207, 210, 211, 213, 216, 219, 222, 223, 224, 228, 229, 230, 235, 240, 248, 249, 251, 258, 260, 263, 278, 284, 286, 288, 297, 307, 315, 316, 321, 322, 323, 326, 329, 333, 342, 348

783

784

Index n. 2, 349, 350, 352, 353, 354, 356, 360, 362, 377, 389, 392, 396, 398, 407, 410, 412, 415, 416, 419, 425, 433, 434, 435-436, 440, 444, 446, 447, 448, 449, 452, 453, 487, 488, 491, 492, 515, 520, 529, 542, 547, 550, 554, 561, 568, 572, 580, 584, 588, 597, 599, 611, 615, 619, 621, 622, 628, 640, 643, 645, 663, 674676, 677, 680, 681, 682, 683, 684 n. 27, 685, 696, 697, 702 n. 26, 710 balance of  113-114, 215, 412, 432 colonial  xii, 127, 615 competition for  47-48, 50, 57 division of  47-48, 320-323, 412, 418 economic  342 executive  93, 208 imperial  10 military  47, 358, 582, 590, 596 political  47, 50, 54, 244, 259, 342, 440, 686 public  xiv, 157, 244, 206, 263, 391 power-sharing, see also complex powersharing, consociational power-sharing  xiv, 45, 47-58, 66, 67, 68, 69, 83, 85, 86, 122, 123, 137, 157, 158, 168-179, 193-241, 244, 263, 265-305, 308, 311, 335, 336-341, 342, 343, 346, 347, 361, 363, 364, 371, 372, 373, 376, 377, 379, 397, 407-450, 452-453, 454, 458, 468-469, 474, 475, 476, 487, 488, 490, 491, 492, 498, 499, 515, 517, 530, 533, 548, 551-556, 572, 588, 594, 597, 599, 652, 654, 691, 692, 693, 696, 697, 700, 701, 703, 712, 714 agreements  138, 195, 262, 289, 314-318, 319, 342, 343, 476, 483, 530, 584, 599, 631, 632, 633, 637, 638, 644, 647, 648, 649, 659, 660, 661, 668 arrangement(s)  126, 137, 158, 159, 193, 203-220, 238, 239, 240, 259, 263, 285, 286, 287, 288, 291, 293, 304, 305, 308, 311, 312, 319-334, 342, 346, 352, 355, 361375, 378, 390, 398, 433, 452, 454, 469, 492, 493, 499, 530, 535, 542, 543, 548, 569, 572, 582, 583, 589, 594, 595, 596, 567, 631, 633, 637, 650, 683, 693 n. 2, 705, 711, 713 devices/mechanisms  xv, 41, 63 n. 8, 204, 211, 212, 287, 378, 419, 441, 668

executive  ix, 50, 51, 55, 72, 76-86, 285, 287, 288, 407, 418, 421, 454, 482 federative  49 formal  288, 365, 390, 407, 434, 447, 448 governmental  xiv horizontal  348, 363, 376, 377, 379, 407, 408, 409, 412, 432-434, 438, 439, 441, 447, 448, 449 informal  274, 285, 287, 288, 345, 346, 355, 376, 390, 407 institutions  240, 408, 410, 419, 420, 431, 435, 436, 437, 439, 440, 442, 443, 446, 447, 448, 448, 449, 535 n. 4, 541, 543, 714 integrative  204, 692, 703-718, 719 internal  71, 543, 696 local  68, 491 mandatory  433 national  433, 434, 448 regional  332, 433, 434, 435, 447, 448, 698 settlements  ix, 370, 376, 387, 390, 451, 456, 469, 685, 692-696 territorial  56, 58 theory  211, 238-239, 346, 691-719 vertical  408, 409, 432-434, 438, 439, 441 voluntary  68 presence civil/ian  193, 240, 256, 257, 584, 586, 587, 588 EU  299 international  xiv, 19, 193, 214, 215, 218, 219, 232, 240, 256, 302, 439, 444, 485, 581, 586, 587, 596 military/security  xiv, 19, 67, 131, 214, 215, 216, 240, 256, 303, 358, 439, 587, 588, 711 NATO  301, 302, 304, 487 n. 26, 580, 581, 584, 711 OSCE  391, 397 UN  214, 215, 218, 243, 389, 584 presidency/ies  35, 36, 37, 51, 57, 78, 167, 181, 187, 194, 195, 199, 207, 208-209, 211, 212, 213, 216, 221, 228, 229, 244, 249, 261, 262, 411, 473, 704, 705, 706, 713, 715 president/s  12, 34, 50, 54, 56, 93, 133, 164, 166-168, 169, 170, 171, 176, 177, 178, 179, 180, 181, 182, 186, 187, 188, 190, 191, 195,

Index 197 n. 4, 198, 202, 208, 212, 213, 216, 221, 248, 249, 250, 261, 262, 273, 275, 276, 277, 278, 279, 286, 287 n. 37, 289, 292, 294, 297, 302-303, 309, 310, 311, 312, 317, 319, 322, 323, 329, 330, 335, 337, 338, 339, 340, 341, 343, 347 n. 2, 353, 354, 355 n. 20, 359 n. 23, 370 n. 43, 372, 391, 392, 395, 397, 398, 400, 405, 411, 418, 422, 425, 426, 427, 456, 457, 459, 460, 471, 472, 479 n. 17, 486, 585, 691, 694 n. 4, 705, 715, 716 presidential  51, 76, 179, 181, 188, 208, 220, 258, 274, 354, 376 n. 53, 42, 460, 574 principality  xv, 32 Protestant/s  52, 63, 65, 66, 67, 74, 94, 97, 100, 113, 115, 456, 463, 524, 560, 561, 591, 618, 645, 696, 705 public  13, 54, 55, 84, 97, 98, 104, 106, 113, 119, 121, 128, 167, 171, 173, 174, 179, 182, 185, 204 n. 9, 229, 251, 275, 282, 283, 284, 286, 287, 288, 294, 303, 310, 321, 323, 324, 325, 327, 328, 336, 352, 354, 356, 357, 361, 363, 370, 375, 376, 377, 378, 424, 425, 427, 441, 464, 510, 512, 513, 539, 542, 543, 546, 549, 550, 565, 566, 574, 604, 607, 610, 611, 612, 613, 618, 621, 623, 630, 638, 639, 668 n. 1, 669, 670, 672, 674, 676 n. 14, 699, 708, 709 n. 31 authority/ies, see also public power  xiv, 98, 158, 243, 259-261, 393, 398, 409, 411, 412, 414, 415, 416, 418, 419-420, 421, 422, 423, 424, 425, 427, 428, 435, 437, 476, 484, 635, 648, 651 expenditure  54, 538, 544, 550, 552 funds  54, 343 institutions  229, 251, 648, 650-651 life  20, 54, 283, 296, 419, 639 officials  47, 121, 262, 647 opinion  15, 115, 222, 420 order  325, 334, 468, 491, 583, 645 policy  48, 69, 74, 108, 260, 422, 424, 503, 538, 583, 628, 650, 706 safety/security  82, 83, 177, 253, 256, 587 sector  54, 72, 86, 92-97, 138, 153, 503, 541 n. 6, 543, 545, 546, 552 services  xiv, 55, 92, 138, 140, 141, 142, 151, 155, 283, 288, 296, 427, 543, 552, 589, 609

Q Quebec  13, 39 Quebecois  53, 636, 652 quota/s, see also affirmative action  53, 54, 86, 88, 89, 95, 115, 185, 261, 262, 272, 333, 461, 516, 517, 608, 618 R racist  25, 49 rebel/s  xii, 18, 23, 30, 42, 130, 167, 191, 416, 481, 562, 696, 701, 702 rebellion  12, 18, 30, 75, 178, 189, 590 recognition, see also international recognition  5, 7, 11, 21, 24, 28, 30, 34, 38, 41, 48, 57, 64, 100, 101, 113, 115, 131, 167, 198199, 206 n. 10, 212, 232, 233, 239, 270, 277, 393, 401, 454, 456, 498, 518, 544, 573, 613 n. 47, 627, 628, 630, 636, 637, 638, 640, 642, 643, 647, 652, 661, 670, 678, 679, 681, 699, 700 referendum/a, see also plebiscite  xv, xvi, 10, 17, 23, 25, 26, 33, 35, 39, 42, 43, 44, 70, 72, 73, 79, 100, 101, 102, 103, 104, 108, 112, 115, 117, 119, 125, 126, 135-137, 145, 146-147, 149, 150, 157, 158-159, 197, 198, 202, 220, 252, 293-294, 311, 318, 321, 323, 325, 332, 333, 338, 339-340, 343, 389, 396, 397, 398, 399, 400, 401, 403, 404, 413-414, 416, 417, 420, 422, 423, 424, 426, 434, 436, 441, 445, 446, 448, 449, 538, 603, 614, 642, 694, 698, 699-700, 708, 709 refugee/s  131, 164, 206, 215, 219, 220, 221, 224, 225-228, 230, 231, 233, 240, 257, 266, 269 n. 7, 276, 299, 301, 350, 351, 352 n. 13, 355, 362, 363, 364, 374, 375, 416, 452, 470, 474, 475, 488, 489, 490, 491, 567, 587, 606, 607, 612, 613, 637, 645-647, 651, 652, 660, 662, 663, 664, 665, 695 n. 6, 711 n. 33, 712 representation  52-54, 57, 76, 79 n. 12, 87, 88, 139-140, 155, 178, 183, 188, 200, 202, 208, 209-210, 212, 236, 238, 244, 245-246, 248-249, 251, 261-262, 263, 272, 282-283, 284, 287, 294, 303, 332, 336, 357, 358, 362, 377, 392, 393, 394, 400, 407, 434, 437, 448, 452, 453, 454, 457, 458, 460, 461, 463, 464,

785

786

Index 485, 511, 562, 589, 608, 648, 649, 661, 664, 679, 706 effective  40 federal  36 over-  53, 54, 454, 463, 464 parliamentary  xiv, 139 political  199, 213, 226, 245 proportional  51, 53, 54, 56, 80, 86, 203, 214, 286, 288, 296, 298, 595, 628, 705 regional  xiv under-  54, 88, 517, 662 repress/ion  xii, 18, 29, 30, 36, 63, 66, 244, 424, 587, 599, 600, 622, 623-624 repressive  245, 376, 609 Republic Srpska  24, 194, 195, 197, 201, 220, 223, 232 n. 26, 233, 394, 410, 412, 447, 455, 488, 518-520, 542, 580, 608 n. 32, 647, 651, 653, 663, 680, 697, 698, 704 republican  43, 64, 65, 66, 68, 70, 71, 92, 104, 111, 112, 113, 114, 115, 117, 118, 119, 123, 194, 423, 472, 552, 592, 694, 695, 696, 700 n. 22, 703, 711, 717 n. 42 right(s), see also human rights and minority rights autonomy  313, 316, 350, 440 n. 3, 645 citizens’  250, 320, 327, 634, 635 civil  65, 68, 97, 325, 397, 611, 617, 621, 625, 628, 629, 630-631, 632, 636, 637, 641, 643-644 collective  15, 98, 99, 110, 272, 642 consultation  69, 248 cultural  5, 97, 98, 271, 334, 503, 621, 624, 629, 631-631, 632, 637-643 community  1, 55, 178, 203, 251, 260, 261, 300, 393, 490, 521, 525, 631, 635, 640, 648, 649, 680 democratic governance  20 economic  98, 503, 621, 624, 629, 630631, 632, 636, 637, 639, 644-645 electoral  99, 630 equal  98, 213, 248, 285, 419, 636-637, 645 ethnic  98, 300, 313, 634, 717 fishing  415 fundamental  14, 178, 249 n. 5, 599, 623, 653

group  20-21, 109, 232, 313, 629-630, 635, 719 indigenous  21, 172, 177, 178 individual  109, 110, 629-630, 635, 642 land  21 language  5, 271 n. 13, 280-281, 327, 332, 334, 393, 526, 637-638, 639 media  271 of consultation  69 of due process  618, 623 of free association  14 of free speech  14, 623 of return (refugees)  211, 225, 232, 254, 613, 637, 646-647, 712 of women  172, 178 political  97, 231, 503, 617, 621, 629, 630631, 632, 636, 637, 641, 643-644 pre-state  35, 40 property  225, 324, 351, 537, 538, 629, 630, 632, 647 religious  231, 631, 639-640 social  97, 98, 362, 621, 624, 629, 631-631, 632, 636, 637, 639, 644-645 to a fair trial  618, 623, 630 to education  271, 327, 332, 393, 516, 526, 625, 631, 632 to health care  625, 631 to housing  625, 631, 632 to legislative initiative  332, 325 to legislative power  332 to liberty  630 to life  630, 632 to participation  xii, 20, 140, 630, 672 to privacy  630 to secede/ssion  9, 13, 20, 23, 31, 32, 33, 34, 36, 57, 100, 323, 394-395, 399, 423, 699-700 to security of the person  630 to self-determination  xii, xv, xvi, 5, 6, 8, 9, 13, 17, 20-31, 32, 33, 34, 36, 37, 38, 40, 42, 43, 44, 65, 100-101, 109, 161, 195, 196, 244, 246, 315, 318, 320, 335, 349 n. 4, 387, 390, 391, 394-395, 397, 398, 400-401, 405, 467, 629, 630, 641-643, 653, 654, 682, 699-700

Index to social security  631 to territorial integrity  35, 246 to use force  45 to work  631 veto  xiv, 56, 72, 86, 99, 203, 210-211, 212, 214, 228, 285, 286, 287, 606, 612 voting  49 regimes  ix Roma  213, 244, 261, 266, 270, 272, 280, 282, 286, 289, 294, 299-300, 303, 309 n. 4, 426, 455, 458, 566, 584, 636, 662 Romania/n  xvi, 32, 43, 277, 309, 310, 311, 315, 318, 320, 335, 338, 400, 421, 449, 513, 540, 547, 548, 682, 699 rule (government)  xiii, 10, 12, 14, 16, 63, 64, 66, 68, 96, 127, 129, 197, 273, 339, 347, 348, 349, 354, 421, 423, 518, 543 n. 9, 696, 717 n. 43 authoritarian  9 civilian  11 colonial  44 democratic  9, 11, 599 home  63-64 majority  15, 56, 68, 74, 599, 707 n. 30 minority  55 of law   43, 219, 235-236, 340, 342, 437, 484, 490, 491, 565, 599-626, 652, 662, 675, 687 right of governments to  12 self-  315-316, 422 Russia/n Federation, see also USSR  xii, 8, 22, 25, 36-37, 38-39, 42, 199, 254, 262, 308 n. 2, 310-311, 312, 316, 320 n. 12, 332, 334, 335, 336, 347, 348, 350, 355-357, 358360, 362, 636-364, 365, 366-367, 369, 374 n. 50, 389-390, 391, 392, 397, 405, 421, 428-429, 470 n. 4, 474, 475, 476, 477, 483, 486, 490, 534, 540, 547, 548, 568, 594-595, 678 Russian  254, 309, 310, 312, 318, 326, 327, 335, 336, 338, 350, 353, 354, 355 n. 20, 358, 359, 360, 364, 365, 366, 369, 370, 374-375, 389, 396, 429, 438, 475, 478, 487, 491, 494, 513, 514, 540, 586, 594-595, 660 Rwanda  11, 14, 577, 610, 616

S Sabah  9, 164 Scotland  xv, 39, 108, 419, 538, 552, 709 secede, see also right to secede  19, 23, 24, 35, 39, 42, 193, 205, 265 n. 1, 337, 449 secession, see also right to secession  xi, xii, xv, xvi, 9, 10, 13, 15, 16, 18, 19, 22, 23, 24, 28, 31, 32, 33, 34, 35, 38, 39, 40, 41, 45, 57, 58, 125, 126 secessionism/t   ix, xi, xii, xiii, xiv, xvii, 5, 9, 12, 13, 18, 19, 30, 31, 37, 38, 41, 125, 126 security  xiv, 10, 11, 13, 56, 66, 73, 95, 113, 122, 148, 149, 170, 172, 178, 192, 203, 210, 218, 222, 224, 227, 228, 253, 255, 256, 263, 276, 279, 286, 287, 294, 301, 302-303, 304, 322, 324, 330, 332, 339, 340, 351, 355, 357, 362, 364, 367-368, 389, 390, 393, 417, 429, 441, 467, 471, 474, 475, 486, 491, 497, 531, 452, 561, 564, 572-577, 579-581, 585, 587588, 590-592, 594-596, 621, 630, 662, 664, 684, 695, 701, 702, 703, 707, 711, 719 force/s  66, 177, 266, 268, 292, 413, 424, 475, 573, 574, 577, 585, 588, 590, 651, 662, 701, 702, 711 n. 34 institutions  54 national  11, 574, 583, 590, 622, 645, 683, 685 policies  68, 578, 592 sector  xvii, 54, 571-597, 701 self-determination, see also right to selfdetermination  xi-xvii, 5-16, 17- 45, 64, 74, 100, 102, 104, 109, 125, 135, 137, 147, 155, 158, 193, 196, 197, 201, 239-241, 245, 246, 311, 320, 346, 349, 387, 390, 391, 392, 394, 396, 402, 403, 405, 407-409, 468, 531, 551, 558, 623, 638, 641-643, 653, 669, 670, 694, 697, 700, 703, 704, 706, 711, 718 agreement  61-124 classical  xii, 19, 20-31, 33, 42 colonial  xii, 10, 12, 13, 24, 25-26, 28, 29, 33, 42 conditional  xv-xvi, 32-33, 43 conflict/struggle, see also self-determination disputes  ix, xi, xiii, xv, 18, 19, 29, 30, 31, 42, 44, 45, 156, 159, 244, 346,

787

788

Index 405, 407, 408, 417, 419, 423, 431, 434, 436, 437, 438, 442, 443, 444, 447, 449, 467-499, 531, 532, 533, 534, 541, 545 n. 11, 547, 556, 557, 571, 584, 602, 629, 647 constitutional  xv, 19, 23, 25, 26, 28 n. 4, 29, 31-40, 42, 45, 388, 394, 396, 401, 402 disputes  5, 13, 17- 45, 68, 125-159, 161192, 193, 194, 196, 197, 238, 308-311, 347, 348, 387-406, 413, 414, 416, 438, 531-557, 572, 581, 582, 592, 616, 628, 630, 633, 635, 637, 643, 644, 646, 647, 649, 650, 652, 654, 667-688, 696-700, 703 entity/unit  xi, xv, 24, 26, 28 n. 4, 29, 42, 43, 64, 259, 387, 400, 401, 405 external  xvi, 20, 21-22, 28, 32, 33 n., 7, 42, 43, 268, 318, 320, 335, 388, 389, 391, 393, 641, 654, 660, 676, 682, 699 internal  20, 28, 642, 652, 697 movements  xi, xii, 19, 421 national  6, 9, 48, 65, 68, 73, 101, 121, 334, 696 settlements  ix, xiii-xiv, 19, 42, 73, 100104, 388 separation (of a state)  9, 13, 22-23, 45, 126, 128, 156, 163, 221, 543, 587, 635, 678 separatism/t  10, 18, 309, 310, 347, 467, 468, 495, 498, 548, 652, 653, 654 Serbia/n, see also Serb population in BiH, Serb population in Croatia, Serb population in Kosovo, Serb population in Macedonia, Union of Serbia and Montenegro  11, 19, 22, 25, 34, 36, 194, 195, 196, 197, 198, 200, 202, 220, 224, 237, 243, 244, 246, 247, 249, 251, 254, 255, 258, 262, 263, 266 n. 4, 268, 269, 292, 396, 399, 402, 403, 404, 405, 409, 423, 424, 447, 467, 486, 495, 496, 520, 534, 541, 542, 543, 565, 566, 579, 585, 586, 636, 678, 680 Greater  197 Serbia and Montenegro, Union of  19, 22, 42, 243, 396, 399-400, 426, 540 n. 5, 567, 641, 642, 658, 659 Serb/s  29, 195-198, 200-202, 208, 209 n. 15, 213-214, 215, 220, 222, 226, 227, 228, 230, 232, 237, 240 n. 27, 245-250, 254-255, 258-259, 261, 262, 263, 403, 455, 458, 459, 463, 464, 489, 491, 496, 520, 532, 565, 579,

584, 585, 586, 587, 622, 704, 715-716, 717 n. 43 settlement/s, see also conflict settlement, consociational settlement, dispute settlement, power-sharing settlement, self-determination settlement  ix, x, xiii, xiv, xvi, xvii, 14, 19, 24, 31, 37, 38, 42, 43, 44, 45, 49, 63, 65, 67, 68, 69, 70, 71, 80, 89, 90 n. 21, 106, 111, 112, 114, 115, 116, 120, 123, 125, 126, 130, 132, 133, 138, 178, 182, 187, 193, 200, 216, 225, 236, 238, 243, 257, 305, 308, 313, 317, 319, 331, 332, 345, 346, 351, 354, 356, 361, 366, 368, 376, 378, 379, 387, 388, 389, 391, 392, 393, 394, 396, 397, 398, 399, 400, 402, 403, 404, 406, 409, 427, 429, 437, 441, 442, 444, 447, 448, 450, 453, 468, 471, 472, 473, 474, 476, 477, 478, 480, 481, 482, 484, 486, 494, 495-496, 497, 498, 499, 527, 548, 559, 560, 562, 563, 565, 568, 571, 581, 584, 585, 586, 587-588, 590, 592, 593, 594-595, 596, 597, 618, 623, 653, 664, 669, 686, 693, 694, 695, 697, 698, 701, 702, 706-707, 709 autonomy  x, xiv, xvi, 33 n. 7, 41, 391, 405, 706 constitutional  18, 44, 88 final  xv, 243, 252, 256, 262, 367, 402-403, 428, 444, 472, 491, 713 interim  xvii, 246, 247, 404, 694 internationalised  41-44, 396 political  67, 69, 111, 114, 116, 125, 132, 133, 135 n. 12, 151, 245, 256, 317, 346, 362, 363, 364, 366, 367, 377, 389, 390, 483 n. 22, 492, 498, 602, 613, 694, 711 status  31, 431, 445 Singapore  9, 22, 40, 550 Slovak Republic  9, 22, 281 n. 30, 547, 642 Slovenia/n  23, 34-36, 38, 45, 194, 198, 244, 395, 541 n. 7, 547, 642, 667, 670 Somalia  11, 29, 166 Somaliland  24, 29, 40 sovereignty, see also sovereign states  xvi, 3, 4, 5, 6, 7, 11, 13, 33, 36, 37, 38, 41, 49, 55, 63, 65, 67, 70, 73, 98, 101, 104, 108, 110, 121, 123, 129, 135, 143, 157, 162, 197, 203, 206, 237, 246-247, 256, 257, 279, 310, 340, 388, 389, 392, 393, 394, 395 n. 16, 401, 402,

Index 403, 404, 413, 422, 423, 467, 547, 580, 581, 582, 586, 589, 602, 603, 619, 628, 639, 641, 651, 665, 660, 667, 678, 680, 685, 695, 696 n. 14, 697, 698 South Africa/n  8, 25, 44, 71, 72 n. 7, 453, 468-469, 472, 578, 611, 706, 708 South Ossetia  19, 345-381, 389-390, 408, 413, 426, 428-429, 430, 432, 433, 435, 437, 438, 439, 440, 444, 445, 446, 447, 452, 464, 475, 476, 477, 478, 479, 481, 482, 483, 484, 487, 490-491, 495, 505, 506, 515-516, 528, 547-548, 572, 594-595, 596, 605, 628, 638 n. 1, 650 n. 2, 658, 660, 661, 664, 678 South Tyrol  xiii, 10, 203, 316, 468, 676 Southern Rhodesia  24 Soviet  8, 12, 310, 312, 314-315, 321, 327, 329, 332 n. 19, 347, 348-349, 351, 353, 358 n. 21 post-  307, 320 n. 13, 335, 347, 360, 377, 378, 421, 428, 429, 515, 532 n. 1, 548, 582, 583-584, 631 Soviet Union see also USSR  xiii, 8, 10, 22, 33, 199, 308, 311, 312, 314, 347, 348 n. 3, 349, 355, 421, 428, 513, 515, 550, 582, 594, 616, 673 Spain/Spanish  9, 21, 25, 26, 27, 112, 161162, 316, 544, 682, 696 Sri Lanka  x, xi, 9, 28, 29, 31, 388, 456 stability  ii, xvi, 9, 18, 27, 44, 45, 49, 58, 68, 69, 120, 134, 237, 265, 266, 304, 305, 343, 355, 358, 359, 366 n. 30, 368, 405, 441, 442-445, 464, 467, 470, 479, 489, 492, 496, 534, 550, 551, 556, 569, 571, 573, 576, 580, 585, 588, 591, 594, 595, 596, 597, 600, 602, 613, 615, 619, 624, 627, 646, 669, 687, 691, 701, 702, 703, 713, 714, 715 in-  31, 116, 134, 427, 429, 585, 712 standards  12, 43, 94, 137, 139, 142, 171, 173, 191, 198, 251, 262, 326, 438, 492, 508, 512-513, 515, 517, 519, 532, 550, 562, 563, 564, 566, 567, 569, 576, 577, 593, 596, 599, 600, 604, 610, 617, 618, 619, 620, 622, 647648, 650, 651, 659, 695 n. 6 European  516, 522 international  232, 251, 253, 600, 604, 609, 610, 611, 612, 616, 617, 619, 622, 628, 633, 644, 646

national  144, 173, 327 state/s, see also nation/s  ix, xii, 17-18, 19, 20, 21, 22, 24- 27, 29-39, 40, 44, 45, 48, 49, 51, 52, 55, 57, 58, 61, 63, 65-68, 73, 89 n. 20, 96, 98, 100, 101, 108, 110-111, 117, 121, 124, 126, 127, 128, 130, 134, 140, 146, 150, 155, 156, 161, 163, 164, 173, 182, 186, 187, 193, 194, 195, 196, 197, 199, 200, 203, 205, 206, 207, 208, 209, 210-211, 212, 213, 215, 218, 219, 221-222, 223, 224, 227, 228, 229-230, 234-235, 236-237, 238, 239, 240, 251, 254, 256, 260, 265, 266, 268, 270, 271, 272, 275, 278, 280-281, 283, 284, 285, 286, 287, 290, 291, 298, 300, 304, 307, 309, 310, 315, 316, 320, 321, 326, 327, 328, 329, 332, 336, 337, 338, 341, 342, 359 n. 22, 365, 366, 367, 374, 377, 387, 388, 391, 392, 393, 394, 396, 397, 398, 399-400, 403, 405, 407, 409, 410, 412, 413, 414, 421, 423, 426, 427, 428, 429, 431, 432, 438, 440, 441, 442, 443, 444, 445, 446, 452, 453, 454, 457, 458, 463, 465, 467, 468, 470-471, 473, 474, 476, 487, 488, 495, 503, 506, 511, 516, 517, 518, 529, 534 n. 3, 535, 538, 539, 540, 541, 543, 544, 545, 546, 547, 548, 551, 553, 556, 557, 560, 565, 567, 568, 569, 571, 572, 573, 577, 578, 580, 584, 588, 592, 593, 596, 610, 611, 615, 616, 618, 619, 621, 622, 623, 624, 627, 628, 629, 630, 631, 632, 633, 634, 637-638, 639, 640, 641, 642, 643, 644, 645, 646, 649, 650, 651, 652, 653, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 680, 681, 682, 683, 684, 685, 686, 687-688, 692, 693, 694, 695, 696, 697, 698, 699, 700, 704, 715, 717 n. 42 central, see also central government  xii, xv, 18, 19 23, 30, 42, 207, 436, 513, 676, 678, 680, 687 civic  285, 295, 303 collapse  xi consent  22-23 construction  x, 403, 407, 408, 423, 431, 436, 438, 443, 444, 445 independent/ce  8, 28, 32, 36, 43, 44, 197, 239, 263, 313, 320, 389, 391, 396, 405, 532, 540, 541 n. 6, 631, 642, 659 institutions  110-111, 196, 205, 207, 210211, 213, 223, 229, 230, 238, 240, 270,

789

790

Index 286, 288, 294, 307, 342, 409, 410, 415, 422, 434, 435, 511, 548, 579, 680, 681 kin-  27, 204, 221, 244, 310, 313, 319, 419, 420, 467, 470, 496, 497, 498, 610, 621, 668, 678, 683, 699 practice  35, 40 sovereign, see also sovereignty  6, 8, 17, 28, 37, 39, 61, 69, 108, 389, 398, 540, 695, 698 successor  10, 41, 399, 673 weak  150, 155, 208, 307-308, 342 statehood  xii, 18, 19, 24, 37, 38, 40, 41, 216, 239, 258, 394, 394, 413, 642 status (geopolitical)  xv, xvi, 10, 20, 21, 22, 23, 24, 26, 29, 30, 31, 39, 40, 41, 42, 43, 44, 45, 55, 56, 73, 100, 104, 111, 114, 118-121, 125, 137, 149, 168, 189-192, 195, 197, 238241, 244, 245, 246-248, 259-261, 262, 263, 308, 313, 315, 318, 320, 323, 325, 329, 334342, 343, 348, 349, 361, 364, 376, 388, 389, 390, 391, 392, 399, 400, 401, 402, 403-404, 405, 419, 423, 426, 428, 443, 445, 446-447, 483 n. 22, 498, 513, 543, 548, 551, 583, 602, 605, 641-642, 643, 652, 678, 699 dual  36 express self-determination  32-38 federal  36, 38, 39, 45 final  251-253, 262, 404-405, 408, 413, 426, 430, 445, 491 future  xv, 5, 43, 256, 259, 365, 398, 404, 421, 430, 434, 447 implied self-determination  32, 39 self-determination  20, 28 n. 4, 39-40, 42, 391, 396, 400 sovereign  37 special  xiii, xvi, 43, 156, 311, 313, 315-318, 319-320, 332-333, 337, 341, 391, 568, 583, 592, 633, 636, 638, 639, 641, 642, 644, 652, 658, 660, 681-682, 697, 699 Sweden  9, 470, 650, 681 n. 24 Switzerland  7, 50, 51, 57, 468, 470, 568, 674, 681, 691, 692, 693, 696 subsidiarity  54, 204, 412, 448, 687 n. 30 Sudan  x, xi, xiii, xvi, 9, 10, 29, 31, 44, 388 n. 1, 397-399, 700 n. 23

Comprehensive Peace Agreement 2005  398 Machakos Protocol 2002  44, 397, 399 Muslim population in  397-398 Surinam  50 T Taiwan  9, 41 Tanzania  12 terrorism/t  xi, xii, 5, 30, 42, 71, 122, 163, 164, 183, 189, 191, 219, 245, 266, 268, 274, 289, 397, 468, 492, 495, 512, 560, 567, 584, 586, 587, 588, 591, 593, 609, 610 n. 35, 662, 663, 679 n. 19, 696, 702 territorial  xiv, 7, 8, 9, 11, 12, 17, 18, 20, 22, 26, 27, 30, 33, 43, 49, 53, 55, 56, 58, 93, 143, 170, 184, 191, 196, 197, 199, 200-201, 208-209, 211, 212, 259, 268, 271, 285, 287, 288, 292, 308, 321, 329, 338, 341, 348, 365, 368, 390-391, 393, 401, 407, 416, 417, 422, 423, 426, 427, 432, 434, 440-442, 444, 448, 459, 548, 588, 633, 636, 642, 668, 669, 670-671, 672, 674, 678, 679, 680, 682, 696, 697 n. 11 autonomy  29, 55, 125, 126, 137, 138, 155, 156, 157, 158, 195, 196, 199, 205, 209, 283, 285, 287, 307, 309, 311, 313, 316, 318, 320, 322, 323, 391, 393, 396, 408, 423, 426, 440, 441, 448, 467, 633, 685, 704 integrity  ix, xii, 19, 23, 28, 31, 35, 37, 40, 41, 42, 44, 182, 198, 206, 228, 237, 243, 245, 246-247, 256, 257, 274, 277, 279, 313, 315, 354, 364, 366, 371, 379, 388, 389, 390, 392, 393, 394, 402, 403-404, 428, 589, 601, 627, 641, 643, 659, 698 n. 15, 699 unity  5-16, 18, 19, 20, 23, 25, 28, 34, 35, 36, 39, 40, 41, 44, 246, 392, 403, 405 territory/ies  xi, xvi, 5, 8, 9, 10, 11, 17, 2123, 24, 25, 26, 27, 28, 30, 32, 33, 36, 37, 39, 40, 41, 43, 47, 48, 56, 61-64, 65, 101, 105, 108, 109, 123, 143, 145, 162, 165, 168, 170, 179, 188, 189, 190, 191, 195, 196, 197, 198, 199, 200-201, 202, 212, 213, 215, 221, 243, 244, 245, 260, 263, 266, 274, 292, 297, 309, 310, 311, 314, 316, 319-320, 321, 324, 325, 328, 329, 331, 337, 339, 345 n. 1, 350, 368, 388, 390, 397, 399, 403, 409, 421, 423, 429,

Index 434, 439, 440-442, 448, 455, 503, 506, 508, 515, 517, 523, 525, 526, 528, 529, 546 n. 11, 549, 559-569, 579, 583, 584, 634, 635, 638, 642, 645, 659, 669, 670, 672, 673, 675, 677, 678, 679, 680, 682, 685, 686, 688, 700, 701, 703, 716, 718 Tibet  8 Togo  10 Transdniestria/n  19, 43, 44, 308-311, 313316, 321, 332, 335-341, 343, 360, 361 n. 25, 391-392, 400, 423, 447 n. 5, 582-584, 628, 638 n. 1, 644, 650, 658, 659, 661, 665, 681 transparent/cy  xv, 217, 342, 361, 372, 376-377, 443, 553, 577, 578 Turkey  5, 317, 319, 325, 327, 332, 334, 340, 469, 479, 568, 681, 699 U Ulster  9, 61-67, 80, 89, 91, 93, 95, 97, 102, 106, 266, 543, 560-561, 568, 592, 660, 717 unification  57, 65, 66, 67, 87 n. 16, 104, 105, 109-110, 114, 124, 310, 320, 335, 360, 367 n. 32, 409, 420, 449, 678, 684 unify/ied  26, 88, 100, 110, 132, 156, 162, 167, 181, 188, 196, 233, 275, 276-277, 469 n. 1, 510, 588 n. 4 Union of Soviet Socialist Republics (USSR), see also Soviet Union  33-34, 36, 38, 41, 58, 309, 347, 394, 395, 532, 534, 540, 546-550 unionists  61, 62, 64-72, 74-77, 78 n. 12, 79-83, 87, 88, 89 n. 19, 91-92, 94-96, 99106, 108-111, 113-121, 123-124, 311, 401, 419 United Arab Republic  40 United Kingdom (UK), see also Great Britain  xv, 9, 21, 39, 43, 61-68, 70-74, 76, 78, 79-80, 83, 85, 91, 94-104, 108, 110, 112, 113, 116-118, 120-124, 400-402, 414, 419, 420, 430, 439, 440, 446, 466, 469, 505, 506, 523, 532, 535, 538, 541, 549, 552553, 555, 573, 574, 577, 591, 599, 603, 609, 611, 618, 620-622 633, 649, 658, 684, 694, 696, 698 n. 14, 700, 709, 718 United Nations (UN)  8, 12-13, 19, 20, 25 n. 2, 28, 36, 133, 135, 150, 168, 184, 198-199, 201, 214, 218, 243-263, 266, 291, 303, 313, 352 n. 12, 355 n. 20, 356-357, 371, 375, 379,

389, 392, 395, 399, 403-405, 409, 413, 424, 426, 454, 465, 466, 469, 470, 472-474, 477, 478, 482-483, 487, 488, 489, 490, 496-497, 515, 543, 567, 569, 571, 572, 582, 584, 587, 588, 605, 606, 609, 610, 617, 620, 622, 638, 642, 643, 693, 695, 699 Development Programme (UNDP)  180, 183, 185, 334, 355, 358, 371-373, 375 n. 52, 440, 470, 473, 475, 477, 479, 488, 489, 490, 491, 528, 595 General Assembly  28, 40, 149, 600 High Commissioner for Human Rights (UNHCHR)  652, 662 High Commissioner for Refugees (UNHCR)  225, 355, 358, 364, 375, 440, 470, 474, 475, 477, 488, 489, 490, 491, 548, 595, 645, 651, 662, 663 International Court of Justice  26-27, 209 n. 15 Mission in Bosnia and Herzegovina (UNMIBH)  567 Mission in Kosovo (UNMIK)  243, 258, 259, 262, 263, 404, 474, 478, 487, 489491, 521-522, 542, 565-566, 652, 653, 659, 662, 678 n. 16 Secretary General  12-13, 14, 256, 258, 303, 410, 424, 425, 474, 566 Observer Mission on Bougainville (UNOMB)  133, 413, 439, 472, 497 Security Council (UNSC)  xv, 12, 36, 42, 171, 243, 246, 253-254, 256-257, 263, 303, 352 n. 12, 390, 392, 394, 402, 403, 424, 430, 439, 469, 474, 486-487, 489, 521, 585-586 UN Charter  7-8, 28, 179, 256, 390, 467, 604, 642, 679 UN Declaration on the Rights of Indigenous Peoples  179 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Linguistic or Religious Minorities  631, 640, 641 UN Framework for Strengthening the Rule of Law  617 UN International Covenant on Civil and Political Rights (ICCPR)  28, 327, 467, 604, 617, 629, 658

791

792

Index Human Rights Committee (HRC)  617 UN International Covenant on Social, Economic and Cultural Rights (ICESCR)  604, 629 United States of America (US/A), see also American/n  5, 6, 8, 12, 15, 31, 57, 65, 70-71, 80, 93, 163, 189, 199, 200, 202, 213, 215, 219, 245, 252, 258, 267, 268, 275, 276, 277, 278, 280, 291, 299, 319, 375, 398, 403, 427, 468, 470, 471-472, 473-477, 479, 482, 483, 486, 496-497, 562, 566, 576, 577, 585, 584, 585, 589, 620, 621, 624, 636, 674, 693, 694, 704, 711 n. 33, 718 unity, see also territorial unity  xvi, 28, 38, 44, 100, 133, 139, 156, 188, 244, 322, 398, 399, 402, 675 national  273, 275, 276, 278 state  xiv, 18, 19, 37 Universal Declaration of Human Rights  7-8, 179, 629 use of force  9, 15, 24, 31, 34, 35, 41, 243, 253, 364, 469, 486, 487, 492, 585 uti possidetis  9,10, 13, 27-28, 29, 44, 193, 405 V veto/es, see also blocking powers and veto rights  ix, xiv, 56, 78 n. 12, 79, 80, 95, 96, 202, 205, 210-211, 228-229, 237, 246, 248249, 261-262, 277, 278, 285, 286, 303 n. 66, 393, 394, 453, 455, 499, 700 violence  xi, xiii, xv, 16, 31, 35, 36, 43, 66, 67, 113, 114, 116, 117, 122, 125, 130, 177, 178, 194, 220, 231, 240, 245, 276, 279, 295, 297, 302, 314, 334, 349, 352, 419, 421, 424, 427, 428, 445, 453, 463, 467, 472 n. 6, 474, 477, 486, 487, 493, 494, 495, 498, 523, 533, 535 n. 4, 536, 541 n. 7, 543, 550-551, 562-563, 566, 568-569, 576, 583, 584, 587, 591, 594, 595, 613, 647, 651, 654, 660, 662, 663, 664, 665, 703, 711, 714, 716 ethnic  xv, 134, 266-267, 274, 424, 451, 551, 559-569, 663, 717 political  66, 189, 711 renunciation of  43, 255, 586

violent, see also violent conflict  18, 29, 39, 100, 122, 151, 176, 178, 182-183, 194, 267, 276, 312, 413, 417, 427, 428, 429, 450, 455, 468, 471, 494, 509, 527, 542, 562, 572, 582, 589, 591, 652, 662, 701, 718 vote/s  6, 7, 39, 48, 52, 68, 75, 76, 78-91, 99, 104, 107, 109, 114, 115, 120, 123, 136-137, 147, 150, 159, 165, 179, 181, 186, 188, 194, 196-197, 204, 210, 212, 217, 223, 249, 256, 261, 274, 281, 282-283, 286-287, 290, 293, 301, 311, 319, 321, 323, 324, 336, 339, 377, 398, 441, 443, 452, 456-457, 460, 461, 463465, 488, 692, 705, 706, 708, 710, 714 n. 37, 715-718 voter/s  51, 52, 74, 87 n. 16, 88, 89, 90-91, 113 n. 28, 115, 139, 188, 197, 290, 294, 295, 296, 298, 321, 325, 340, 449, 454-456, 462465, 695, 705, 706, 715-716, 718 n. 45 voting, see also voting rights  ix, 72, 74, 77, 85, 88, 99, 113 n. 28, 158, 210, 261, 293, 398, 401, 407, 412, 451, 455, 456, 459, 462, 463-464, 706, 707, 716, 718 n. 45 W Wales  xv, 97, 108, 419, 538, 552, 709 war/s, see also Cold War, conflict/s, dispute/s  5, 6, 9, 11, 14, 16, 34, 41, 48, 53, 64, 67, 112, 114, 123, 132, 156, 162, 164, 168, 182, 184, 193, 194-201, 202, 203, 204, 205, 207, 211, 214, 215, 216, 217, 219, 221, 222, 224, 225, 226, 227, 228, 232, 233, 234, 237, 238, 239, 240, 266, 269 n. 9, 274, 276, 350, 351, 353, 354, 355 n. 19, 358, 359, 362, 368, 409-410, 473, 474, 483, 484, 504, 507, 509, 520, 538, 542, 556, 559-569, 565, 566, 567, 578, 579, 581, 591, 595, 601, 610, 663, 700703, 704 civil  15, 29, 48 n.1, 53, 65, 131, 267, 275, 289, 416, 455, 468, 496, 610, 705, 711, 718 crime(s)/criminal(s)  202, 215, 224, 231, 294, 368, 471 First World  6, 7, 9, 64, 532, 546, 547 guerrilla  65, 130, 131 prisoners of  29, 30 Second World  9, 45, 148, 421, 423, 516, 532, 546, 547, 616, 645, 667, 670, 676 n. 14

Index warfare  xi, 30, 65, 352-353, 467, 486, 492, 567 West Irian  8 Western Sahara  17, 25, 26 Westphalia  11 Y Yemen  40 Yugoslav  xvi, 10, 19, 34-35, 37, 195-197, 201, 208, 220, 235, 237, 244-245, 268, 304, 402-403, 423-424, 465, 485, 487, 532, 540-542, 565, 579, 580, 586, 681 n. 24, 698, 717 n. 42

Yugoslavia (the former Socialist Federal Republic of )  xiii, xvi, 10, 14, 28, 29, 31, 34, 36, 41, 45, 58, 194-199, 202, 208-209, 218, 220-221, 223, 225, 228, 232-234, 237, 239, 243-247, 248 n. 2, 253, 255-257, 265266, 268, 271-272, 292, 355 n. 19, 395-396, 403-404, 409, 423, 426-427, 455, 486, 518, 520, 532 n. 1, 534, 540, 541-546, 584, 586-587, 612, 613, 616, 628, 641, 652, 679, 717 Z Zambia  12 Zimbabwe  xi

793