International Dispute Settlement Mechanisms for Territorial Autonomies?

Sia Spiliopoulou Åkermark

Åbo Akademi University

Methods of dispute settlement mechanisms in the relations between central state and territorial autonomy deserve much more attention and require deeper thinking today. Such attention and debate should stretch across the domestic – international divide and explore new avenues of legitimacy and dispute settlement between polities and multi-level actors. This means that when addressing the matter, we need to examine both domestic and international law, thus necessitating cooperation between legal sub-disciplines. In what follows I argue why this is the case.

Territorial autonomy is a tool of governance granting the inhabitants of a region legislative and administrative power to manage a range of issues of particular importance to that region. While territorial autonomy solutions are globally much more common than generally thought, until recently there has been poor engagement with the comparative lessons and common issues of such territorial autonomies across time and place.

Until now, important and promising arguments have come mainly from the field of comparative constitutional law. Constitutional scholars study the institutions of territorial autonomy, the distribution of competences between the autonomous region and the central state, how autonomous regions and their institutions handle international affairs and also specific fields such as the position and management of human rights or environmental rules in territorial autonomies.

International law as an academic discipline has been rather cautious in matters of territorial autonomy, with the exception perhaps of indigenous autonomy. Emphasis among international law scholars has been mainly on the issue of whether there exists a legal right to autonomy, i.e. a legitimate legal claim to territorial autonomy or not. Such analyses and debates often emphasise the link between (ethnic, national, linguistic, religious, cultural) identity and territory. Recently the UN Special Rapporteur on National Minorities has presented a Proposal for a Draft Global Convention on the Rights of Minorities which includes a ‘right to autonomy or self-government’. Interest in international law has also been directed towards the use of territorial autonomy as a resource in conflict resolution.

All this is good, necessary, and highly relevant. But it is not enough. 

To start with, territorial autonomy arrangements often have a strong international character.   Territorial autonomy, when it is introduced by whatever methods and with various justifications, often has a strong international dimension. Here are some examples of how this international dimension is expressed. It may be created through international agreements; territorial autonomy arrangements may be embedded in international regimes, such as international organisations and networks of agreements, norms and practices, such as is the case in the Åland Islands; territorial autonomy may concern cross-border situations, including borders as such, but also involving cross-border populations, minorities or indigenous people; territorial autonomy may be introduced at a period of state formation processes, such as dissolution of and fusion into new state(s) or other transitional justice situations; territorial autonomy may be the result of an effort to prevent or address international or internationalised conflict; and several territorial autonomies spring out of and carry with them colonial experiences.

How should this international dimension be reflected in the way territorial autonomy is designed and managed, without downplaying the importance of the principle of non-interference in the internal affairs of countries and respect for the territorial integrity of states? At the same time, why should an autonomous region with an internationally recognised polity and with a strong international dimension be kept outside the realm of regional integration processes (such as discussed in the lively debate about regions with legislative power in the European Union) and other international instances, including human rights monitoring?

It is hereby argued that it is not enough for us to study the way territorial autonomies deal with the international obligations incurred by the state or enter themselves into international agreements, or how territorial autonomies participate in international organisations. Nor is it enough to study the functioning of de facto territorial autonomies in frozen conflicts which are sometimes also called ‘grey zones’ or ‘places that do not exist’. By so doing, we miss the relational elements and dynamics of how territorial autonomy functions, i.e. how autonomous regions and their multiple institutions interact both with the central state and with international actors. We also miss the international dimensions of processes that ensure legitimacy (or, conversely, may undermine such legitimacy) to the layers of law applicable in autonomous regions and the central state. The adjudication of disputes is one such field that infuses legitimacy. Problems of legitimacy deficit are particularly acute when the impartiality of domestic justice may be questioned or when the domestic courts do not attend to the international dimensions of autonomous arrangements.

Since international law aims at preventing conflict and war, the protection of territorial integrity of states and at the same time the prevention of grave violations of human rights, engaging in the exploration of the modes and conditions of dispute settlement between autonomous regions and the central state, especially when the international elements of autonomous arrangements are strong,  may be an efficient and smart way to do that. In the cases where territorial autonomy has strong international dimensions, engaging in the ways available for handling such disputes contributes also to the wider maintenance and development of the international and national rule of law. After all, with examples such as Sudan in the early 1980s when the central government curtailed the autonomous rights in the south, Kosovo in 1989 as ethnic tensions were stoked by the Milosevic regime and autonomous rights were limited in Former Yugoslavia, backlash against autonomy in Kashmir in India and Hong Kong in China in recent years, we know that territorial autonomy may be a victim of a shrinking rule of law, especially when authoritarian trends deepen. The complex issues involved in the case of Northern Ireland as part of the Brexit process underline the need for fine-tuned dispute mechanisms to solve the intricate questions involving territorial autonomy solutions in all parts of the world.

It can be argued, of course, that domestic dispute resolution tools are sufficient, and this shall often be the case. Balanced commissions or mediation organs and strong, independent judiciaries that ensure that the legitimate interests and needs of all parties are taken into account and law is observed in meaningful ways in both its domestic and international dimensions, can manage even heated and controversial questions. But rather often and for a variety of reasons this is not the case, there are no adequate domestic remedies to be exhausted, and this is especially true when the domestic and international dimensions are intricately entangled.

The concept of ‘complex accountability’ could be useful in such cases. Complex accountability is a notion used in the study of peace agreements as well as in other legal fields. In the words of Christine Bell, complex accountability entails that the tools and actors in the “domestic and international sphere operate to hold each other to account, through the very debates over which legal regime applies, whether the international enforcement action is legitimate, and what implementation of the agreement demands”.

In retrospect one could argue that the various dispute management mechanisms established in the early twentieth century for the Memel autonomy, Upper Silesia and in the Åland islands 1921 settlement in the League of Nations era were early efforts at such complex accountability mechanisms. In all these early efforts we find arrangements both at domestic and international level for the settlement of disputes included in the institutional solutions put in place. These solutions were institutionally grounded in the League of Nations, while today we find a rather ad hoc approach in cases such as in the 1995 Dayton Agreement for Bosnia and Herzegovina or in the Bougainville agreement of 2001. Needless to say, institutions and laws alone are not enough to ensure a well-functioning territorial autonomy arrangement. But they are a precondition, if well designed.

Bridging the insights from the early 20th century with more recent global experiences while taking into account the contingencies of contemporary multilateralism and domestic realities is one way of addressing the puzzle of dispute management for territorial autonomies. So, to recap, territorial autonomy arrangements often have a strong international dimension. This international dimension is, however, not reflected in the way dispute resolution concerning territorial autonomies is conceptualised today. Through the concept of complex accountability and the inspiration from dispute settlement mechanisms put in place in the early 20th century we may be able to deepen our insights about the possibilities available in years to come. For this to happen further interdisciplinary work is needed, including between legal sub-disciplines.  

This blog post is a result of a workshop of the network of scholars of territorial autonomy initiated by the Åland Islands Peace Institute. The network first met and discussed ‘The Many Faces of Territorial Autonomy’ at a workshop in Berlin, convened in cooperation with the Finland Institute in Berlin. The blog symposium is hosted by the IACL Research Group on Constitutionalism and Societal Pluralism: Diversity Governance Compared.

Sia Spiliopoulou Åkermark is the Director of the Åland Islands Peace Institute, Associate Professor of International Law at Uppsala University and Professor of Law with a focus on autonomy and self-government at Åbo Akademi University

Suggested citation: Sia Spiliopoulou Åkermark, ‘International Dispute Settlement Mechanisms for Territorial Autonomies?’ IACL-AIDC Blog (3 October 2023) https://blog-iacl-aidc.org/territorial-autonomy/2023/9/28/international-dispute-settlement-mechanisms-for-territorial-autonomies.