Direct Democracy and the splitting up of territories (referendums on selfdetermination

Transcription

1 1 Direct Democracy and the splitting up of territories (referendums on selfdetermination and territorial sovereignty) Panel Discussion during the Global Forum on Direct Democracy, Rome - 28 September 2018 In the last years movements for national self-determination and secession of a given territory from existing nation-states have increased by number and strength in Europa and beyond. The most important mean to pursue self-determination is a popular vote or referendum in order to achieve the strongest possible democratic legitimacy for such a decision. Thus, the regulations concerning direct democracy (popular initiatives) can and in some states do include also such issues, but in terms of constitutional and ordinary legislation a referendum on secession or on redrawing international borders has to be clearly distinguished from the regulation and application of direct democracy on acts of domestic law and other internal political issues. In this paper I briefly highlight the recent use of referendums for self-determination processes around the world and draw some conclusions. 1 Take Scotland in This is a good example for the democratic maturity of the United Kingdom which, after negotiations and consultations with the Scottish government and Parliament, agreed to hold a popular referendum 2 on the sovereignty of Scotland, although no UK constitutional law provides for such a right of a member country of the UK. In the popular vote of 19 September ,3 percent of the Scottish voters rejected the option of secession. After the Brexit-vote held in June 2016 the Scottish National Party announced to envisage a new referendum on independence, but this debate will take off only after the UK has definitely left the EU in The Brexit-vote was not about splitting up a country, but on the UK relationship with the EU. A growing part of the British population was skeptical about the British membership in the EU, and finally it became clear that the majority of the UK electorate was against. Brexit, as so many referendums, was a democratic operation of coming out, clarifying the preferences among the people in that historical moment. In contrast to the Scottish referendum of 2014 the Spanish Constitution does not allow its Autonomous Communities to hold referendums on secession. Unlike the UK the Spanish Constitution stresses the indivisibility of the State and considers democratic efforts for self-determination of smaller nations inside Spain as attacks on the legal constitutional order or even as acts of rebellion. For this reason the Supreme Court already in 2008 banned the Basque Country from holding a referendum on a different political status, and in 2017, after the referendum on independence of Catalonia, the President and the government of Catalonia even have been persecuted under penal law for having organised such a referendum. As we know, a slight majority of the Catalan voters on 1 October 2017 voted YES, but the referendum was declared illegal and invalid by Madrid. 1 This comment draws on three main sources: Markku SUKSI (2016), The Referendum as an Instrument for the Resolution of Territorial Disputes and for the Exercize of Self-Determination, in: Peter Hilpold (Hg. 2016), Autonomie und Selbstbestimmung in Europa und im internationalen Vergleich, Nomos, Baden-Baden, ; Peter HILPOLD (Hg. 2016), Autonomie und Selbstbestimmung in Europa und im internationalen Vergleich, Nomos, Baden-Baden; Thomas Benedikter (2017), Selbstbestimmungsrecht und Volksabstimmungen, POLITiS- Expertise 13/2017, and Thomas Benedikter (2009), The World s Modern Systems of Territorial Autonomy, EURAC Bozen, available for free download. 2 In this text the term plebiscite is avoided as it is generally used to define referendums triggered by an institution from above, whereas popular initiatives and referendums are triggered by citizens. Although most referendums on sovereignty issues are indeed triggered by authorities here I prefer to use the term (popular) referendum. See also the Glossary of direct democracy, in: IRI (2007), Guidebook to Direct Democracy

2 2 This kind of process will work much better in France, where later in 2018 a referendum on selfdetermination will be held in one of the autonomous overseas-territories of the French state. This is New Caledonia in Oceania, a collecitivité sui generis or also Pays d Outre Mér with territorial autonomy. As enshrined in the agreement of Nouméa of 1998 New Caledonia is entitled to decide freely whether to keep being a part of France as an autonomous entity or become an independent country. This kind of legal and democratic process can be regarded as the last step of a process of decolonisation kicked off in 1998, thus no traumatic event. Other French overseas-territories have repeatedly used the means of referendums to determine their political status (see p.2 below). IN Europe there are some more movements for national self-determination, but not many, as in Flanders (Belgium), in Greenland (DK), in the Basque Country, in the Republika Srpska of Bosnia- Herzegovina, in the Eastern part of Ukraine and in my own region of South Tyrol in Northern Italy. In three European regions secession has de facto already happened, but not by constitutional methods, but violent means with military support from neighbouring countries or kin-states : Northern Cyprus in 1974, now the Turkish Republic of Northern Cyprus, in Transnistria in 1994, formerly a part of Moldavia, and in 2014 in the autonomous Region of Crimea, part of the Ukraine, later annexed by Russia after the March 2014 illegal referendum on self-determination. De facto it also happened in the so called Republic of Luhansk and Donezk in Eastern Ukraine, a still open conflict. In the 1990ies two formerly autonomous regions of Georgia split away (South Ossetia and Abkhazia) and also Artsach from Azerbaijan. All those entities held referendums recording huge majorities in favour of secession. Nevertheless all of those self-declared republics did not succeed in gaining international recognition. In other parts of the world some 20 referendums on the political status of territories have occurred since Without dealing in depth with the political legitimacy of such self-determination claims, struggles and efforts in various parts of the world, hereafter I just offer a brief overview on such referendums held in the last 25 years and draw some conclusions on how such processes should be regulated. Referendums are the classical method to decide on the political legitimacy of a decision on the political status of territories in the framework of a state with rule of law and a democratic system. Such referendums not only are a must when it comes to the constitution of a new sovereign state, but also when a decision is requested on changes of the political status of parts of its territory such as regions and federated entities: autonomy, free association, a federated entity within a federal setting or other forms of vertical power sharing within this state or outright secession from this state are on stake. In this context we cannot deal extensively with the right to self-determination as a collective right of peoples enshrined in various international covenants such as the ICCPR, the ICESR, the UN-Friendly Relations Act of 1970, the Declaration on the Rights of Indigenous Peoples of However, the exercise of the right of self-determination entails the right to decide in a free and democratic referendum or through a freely elected representative assembly on the constitution of a sovereign State as a subject of international law, the aggregation to another existing state or a different status of international law. The exercise of self-determination requires a regulation of such a legal procedure in domestic or constitutional law of the concerned state, as it happened in Scotland in 2013 to ensure the referendum on secession of September A popular referendum is one of three possible methods to apply the right of self-determination, as stated by the International Court of Justice. The other methods are the election of an assembly of representatives entitled to such a decision, or a decision taken by the General Assembly of the United Nations.

3 3 Current international law does not allow unilateral secessions. But on the other hand there is no explicit prohibition to hold referendums on secession. Various territories have held such referendums, but most of such entities later have not been recognized by almost anyone existing sovereign state. In other words: although referendums on the secession and sovereignty of a given territory, part of an existing State are not mandatory by international law, in the political practice especially in the framework of peace treaties and in order to solve centre-region-conflicts they are quite often provided, its preparation procedures are therefore regulated in domestic ordinary or constitutional law. On contrary, informal referendums organized in a unilateral and constitutionally not regulated way by territorial entities willing to secede almost never gain recognition, and thus also the results, mostly declarations of independence, later are not recognized by anyone. Such entities continue to exist for decades as de-facto-states, just recognized by one or two kin-states on which they fully depend on (Transnistria, Abkhazia, South Ossetia, Northern Cyprus, Artsach). Three kinds of solutions have been the options of ballot decisions of that kind since 1994: 1. The constitution of a new independent State ( : 16 cases) 2. The free association or integration in an existing State ( : 10 cases) 3. The establishment of a different political status ( : 29 cases) Thus, worldwide from 1994 to such referendums have been registered, the majority not concerning full fledged independence, but a different status of power sharing within that state. 1. Referendums on the constitution of an independent state 1995: referendum on secession of the province of Québec from Canada (not approved) 1998: referendum on the secession of Nevis from the state of St. Kitts and Nevis (2/3 majority not achieved, independence rejected). 1999: referendum on the independence of East Timor (Timor Leste) (independence approved) 1999: referendum on independence of the Bermudas (UK dep. territory, independence rejected) 2001: referendum in Somaliland (independence approved) 2006: referendum in Montenegro (independence approved) 2006: Nagorni Karabach (Artsach, independence approved) 2006: South Ossetia (Georgia, independence approved) 2006: Transnistria (Moldavia, independence approved) 2006: referendum on independence of Tokelau (New Zealand, independence rejected) 2008: referendum on new autonomy statute of Greenland which contains a provision for a procedure on self-determination, based on a double referendum (approved). 2011: referendum in South Sudan (independence approved) 2014: secession for the Autonomous Region of Crimea and annexation to Russia (approved) 2014: referendum in Scotland (secession from the UK rejected) 2017: referendum on independence of Catalonia (independence approved, but not recognized)

4 4 2017: referendum on independence of Iraqi Kurdistan (approved, but rejected by Iraq government) Also the referendums in Puerto Rico and Curacao embraced full independence as one of the options on which the electorate was called to express themselves. It has been recalled that in the aftermath of the dissolution of the USSR and Yugoslavia in the 1990ies several popular referendums in member states of these Federations have been applied, which almost all ended with approving the independence. On the other hand it should be recalled that in several cases of referendums since 1994, where full fledged independence was on stake, at the end the voters preferred a different status, namely territorial autonomy, a federated entity, free association (Scotland, Québec, Tokelau, Nevis, Curacao, Puerto Rico). 2. Referendums on free association, autonomy and the integration in an existing State In order to solve conflicts between a central State and a sub-state entity (region, associated or federated state or province) in some 10 referendums have been held in several countries. After World War I and World War II, in order to apply the principle of self-determination of peoples enshrined in the UN-declaration of human rights and the UN-Declaration on decolonisation, many referendums have been held on sovereignty and independence. Referendums also have been used to solve contentious issues and conflicts between sovereign states. But generally it has to be stressed that the most important UN-covenants such as the 1970 UN-Friendly Relations Act recognize both the right of States on the integrity of their territory and the respect of sovereignty and the right to self-determination of peoples which are not titular-nations of an existing state: 1998: referendums in Scotland, Northern Ireland, Wales on the devolution within the UK (approved) 2002: Gibraltar, referendum on a new constitution (approved) 2004: referendum in Cyprus on the Annan plan of reunification (rejected in the Republic of Cyprus, approved in the Turkish Republic of Northern Cyprus). 2010: referendum in Slovenia on a border conflict with Croatia (approved) 2011: referendum in Wales to enlarge the existing autonomy (approved) 2013: referendum on Falkland Islands on political status (99,8 percent confirmed the status quo) 3. Referendums for the constitution of new political status within an existing state In the period most referendums concerning the political status were held on the question of redefining the political position of a territory within the existing state (29 referendums): 1998: New Caledonia (France), majority supports the Nouméa agreement with autonomy. 1998: referendum on autonomy of the Cordillera Region (Philippines). The non-indigenous majority population rejected such a solution : Guadeloupe (France); 2000 and 2009: Mayotte (France); 2003 and 2010: Martinique (France); 2003: Corsica (enlarged autonomy rejected). 3 In such referendums it has to be carefully analysed whether the rights of the indigenous peoples living in the concerned area are preserved. In several cases the central state has managed to create a new majority of members of the titular nation of the State by changing the demographic composition of the population entitled to vote (e.g. Morocco and the Western Sahara, Indonesia and West Papua, Bangladesh and Chittagong Hill Tracts). In such cases such referendums, even if carried out in a free and fair manner, wouldn t respect the right to self-determination of the original (indigenous) inhabitants of that region.

5 : several referendums in the Netherlands Antilles (Sint Eustatius, Curacao, Bonaire, Saba, Sint Maarten) (different results). 2006: national referendum in Bolivia about territorial autonomy for all regions (rejected). Separate regional referendums in Beni, Panda, Tarija, Santa Cruz (autonomy approved, later not applied). 2009: referendum in Curacao (majority for a territory freely associated with the Netherlands) 2010: French Guyana (all referendums on the transformation of these territories in Pays d Outre Mér or Departments d Outre Mér). 2012: Puerto Rico (majority favours to shift to status of US-member state). In 2017 again 97,2 percent support Puerto Rico as the 51th state of the US, but Washington does not accept it. Summing it up, France, Denmark, the Netherlands and the UK have applied referendums to clarify the political status of various territories under their sovereignty. Thus referendums on such issues cannot be classified just as extreme exceptions or traumatic events of splitting up a country, but as settling the relationship between some regions and population sand the central state in a democratic manner. In many cases the electorate entitled to vote for such referendums can even hardly be qualified as a people in an ethnic sense or as a nation in a historical and political sense. In not a few cases the electorate voted clearly against independence and even against an enlarged autonomy status of the concerned region. On the other hand what counts most is the clearly drawn legal framework within which the democratic process of self-determination has been and has to be carried out in order to settle the conflict peacefully. An extremely interesting process of such a kind can be found again in the cradle of direct democracy, Switzerland. It is the case of the internal secession of the Canton Jura from the Canton Berne which lasted for more than 20 years. 4 Conclusion With a popular referendum the sovereign electorate legally residing in a given territory expresses its political will by a democratic procedure. Such a referendum can have a legally binding and decisive effect or can be of consultative nature. Referendums can be considered as the classical method to exercise the collective right on self-determination within democracies. But by far not all such referendums on self-determination are carried out in a free and fair manner, in the framework of a working democracy and the rule of law, eventually under international observation. In the period this kind of decision-making has been applied in 55 cases all over the world. 16 cases concerned the establishment of a new independent state, having as alternatives the status quo or an enlarged autonomy of a territory in an existing state, whereas in 29 cases a new kind of political status within the existing state borders were put on the ballot vote. Referendums on selfdetermination can also be repeated in certain intervals whenever the concerned population claims it (example: Puerto Rico held referendums in 1967, 1993, 1998, 2012 and 2017). Generally the international law, in spite of the fundamental recognition of the right to selfdetermination of peoples, does not define precisely the conditions of its application and is very restrictive on a subsequent right to secession of a territory from an existing state. But although unilateral secession is not allowed, it has to be recalled that also democracy is a supreme value of the international community which in most states in enshrined in their constitution. Thus states, by an 4 See IRI (2007), Jura: democracy, not nationalism, in: Guidebook to Direct Democracy in Switzerland and beyond,2007 edition, p.57-63

6 6 amendment of their constitution, are always free to allow the application of procedures of selfdetermination. By these means the population of a region or contested territory as a democratic subject may freely and democratically express its will and achieve a different political status in accordance with the preferences of the majority of the voters. In some cases this process can be restricted, requesting a qualified majority (St. Kitts and Nevis, Montenegro), in some cases the right to vote might be limited to an electorate with a minimum duration of legal residency in that region, in order to protect the indigenous population of such a region. Other regulations have been applied in order to ensure full or greater compliance with constitutional and international rules. As alternative, the decision on sovereignty and independence can also be taken by a representative directly elected assembly or regional Parliament. Nevertheless a referendum appears as the best solution as it provides for immediate democratic legitimacy and it offers the chance for participation to each legal inhabitant of the concerned area. Most independent States in their constitutions do not allow the right for secession of a part of their territory and thus do not provide for the right to hold referendums in such issues. Even if popular initiatives and referendums are enshrined on national and regional level they almost never embrace the issue of secession. This kind of issue forms a separate category of referendums. On the other hand, most constitutions contain provisions to preserve and defend the territorial integrity and indivisibility of the nation. Unilateral secession, claimed by referendum held without the consensus of the central state, in most states is considered simply illegal if not an act of treason or rebellion. This kind of democratic expression of the political will of the population of a contested area often can be decisive to solve long lasting violent conflicts and to re-establish peace. A good example for a fair regulation of the application of the right to self-determination is the current statute of selfgovernment of Greenland. The Greenlanders - within the autonomy statute of are recognized as a people entitled to self-determination. The main procedural steps are regulated in the new autonomy statute of 2009 (section 8). After a first referendum in order to kick off the selfdetermination process, negotiations shall be held between Greenland and Denmark. After having achieved an agreement a second referendum will be held on this agreement offering also other options of the future political status of Greenland. But how to assess and judge such political developments as we could observe in autumn 2017 in Catalonia, with a harsh conflict between the democratic aspirations and will of an entire people and the constitutional constraints given by Spain s constitution, which rules out any unilateral decision of an Autonomous Community on secession and independence? Generally, whenever the referendum on self-determination has occurred in a constitutionally correct framework and in a free and fair manner neither the concerned state nor the international community had any problem to recognize the newly constituted juridical subject. If the process of secession is pushed forward in fully unilateral manner or even by violent or military means, the situation is quite different. The independence movement of Catalonia ever since acted as a peaceful and democratic movement. Nevertheless it did not achieve to change the constitutional barriers for a self-determination process first. The international community as a club of States will always have difficulties to recognize such processes as acts which undermine their very sovereignty and the integrity of their territories. However, let s clearly distinguish popular votes of all kinds of political issues on all levels of governance from referendums on self-determination of the political sovereign status of a territory. Thomas Benedikter, POLITiS - South Tyrol s Centre for Political Studies,