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Options For Tibet's Future Political Status: Self-Governance Through An Autonomous Arrangement
By Tibet Justice Center (Eva Herzer). Published by: Tibetan Parliamentary & Policy Research Centre. New Delhi, India, 2002.
3. Self-Governance Through An Autoonomous Arrangement
During the course of the 20th century, many conflicts between peoples and states have been successfully resolved through negotiated arrangements for autonomy. The word "autonomy", according to the Random House Dictionary, is defined as independence, freedom and as the right to self-government. When we speak of "academic autonomy", for example, we generally refer to the ability of universities to teach and conduct research, free from government interference and corporate influence. "Individual autonomy" usually refers to an individual's right to make her or his own decisions. Autonomy of a people (such as the Tibetans) refers to a form of self-government within the framework of a larger state, usually, but not always, short of complete independence.
Despite the fact that well over 40 autonomous arrangements have been created in the 20th century, the term "autonomy" has no generally accepted meaning in international law. This is not astonishing because one autonomous arrangement can be completely different from the next. Autonomy is a vague, if not meaningless concept, unless and until it is defined, on a case by case basis, as a particular distribution of governmental powers between two governments: The government of the people who seek self-government, usually referred to as the autonomous government, and the government of the sovereign or larger state, referred to as the state government. Some of the major governmental powers which must be divided and allocated between these two governments in the drafting of an autonomous agreement are the powers to control:
Cultural affairs
Education
Official language
National symbols
Health and social services
Economy
Taxation
Natural resources
Environmental policy
Transportation
Postal and telecommunications systems
Law and order
Administration of justice
Currency and monetary policy
Determination of citizenship
Foreign policy
Defense
Customs, border control, immigration
In deciding whether an autonomous arrangement will meet a particular people's needs, it is necessary to examine carefully the distribution of these governmental powers between the autonomous government and the state government. Taking a position for or against autonomy is somewhat meaningless unless the autonomy proposed or opposed is specifically defined as a particular distribution of governmental powers. Depending on how these powers are divided, an autonomous arrangement either results in negligible self-governance or substantial self-governance. The current Tibet Autonomous Region (TAR) is an example of negligible self rule. Very few governmental powers are controlled by the TAR government and even those powers it nominally controls become often meaningless because the TAR government is controlled by the central Communist Party. Examples of substantial self-governance include Liechtenstein, which has an autonomous arrangement with Switzerland, and Greenland, which has an autonomous arrangement with Denmark. Another example is His Holiness's Strasbourg proposal, which allocates most governmental powers to Tibetans and would give to China only defense and some foreign affairs powers.
The following brief summary focuses on the major governmental powers that must be considered in negotiating an autonomous arrangement. It also highlights how other peoples have resolved the allocation of these powers between their autonomous government and the state government. Please see Appendix "B" for a glossary and Appendix "C" for a map of the location of the autonomous arrangements referred to below.
Cultural Affairs
Cultural preservation lies at the foundation of almost every struggle for self-determination. The power over cultural affairs is the only governmental function over which virtually all autonomous governments have control. In some cases, however, such as the TAR and the nearby Xinjiang Uighur Autonomous Region (East Turkestan, also under China's control), this control is a matter of right but not of practice.
Education
In the great majority of the autonomous arrangements, education is entirely controlled by the autonomous government. Most autonomous governments insist on controlling education in order to guarantee survival of the native language and the cultural identity of their people. For example, the Swedish speaking Aland Islands, an autonomous province of Finland under the 1991 Act of Autonomy for Aland, administer their own schools, where instruction is in Swedish, with English as a second language. Finnish is offered as an optional language.
Several examples underscore the importance of providing sufficient second language instruction to give students access to a university education. This is especially true in remote regions of the world. In the Federated States of Micronesia, an associated state of the United States (US) under the 1982 Compact of Free Association, a chain of islands in the Pacific Ocean, education is within the exclusive jurisdiction of the autonomous government. Students are taught in each of the applicable Micronesian languages and English is required as a second language. Due to the geographical isolation and the low quality of some of the English instruction, however, many Micronesians graduate without proficiency in English. Because relatively few books are available in the Micronesian languages, educational levels remain low and students are not adequately prepared for a college education, which is only available abroad.
South Tyrol, a German speaking autonomous province of Italy under the Autonomy Statute of 1972, also controls education. Elementary and secondary education are provided in the child's mother tongue, German or Italian. Instruction in the province's other language is also mandatory. All teachers must speak both languages and must be native speakers of the school's primary language.
The TAR is one of the few examples where the autonomous government does not have ultimate control over education. It may plan and implement educational programs but does not have ultimate control because all such programs must comply with Chinese state guidelines.
Official Language
Language is a key component of cultural identity and control over language is often critical to effective self-governance. In some autonomous arrangements the state's language is the sole official language, as in the TAR, where the official language is Mandarin. In others, the language of the people is the only official language. For example, in Quebec, a French speaking autonomous province in Canada, the official language is French, even though the rest of Canada is English speaking. In some cases, such as the Aland Islands, the people's language is the official language, but translation from and into the state's language is available for certain official business. Many autonomous arrangements provide for several official languages, so as to meet the needs of the people and the state. Such arrangements are found, for example, in Hong Kong, Micronesia and Greenland.
National Symbols
To many peoples, national symbols, such as flags, seals and anthems, are a vital and critical part of their identity. Therefore, most peoples do have their own national symbolism. Prohibitions of national symbols are found only rarely, but include the Chittagong Hill Tracts, which entered into a peace agreement with Bangladesh in 1997, the TAR and Northern Ireland, an island located west of England.
Health and Social Services
In many cases, health care and social services are provided by the people's autonomous governments. For example, Hong Kong, Liechtenstein and South Tyrol have exclusive control over these functions. An unsuccessful example of people's control over health care is found in Zanzibar, in East Africa, which has had an autonomous arrangement with Tanzania since 1964. While Zanzibar has exclusive control over health care, it has insufficient funds to provide adequately for its population's needs. As a result, there have been outbreaks of epidemics due to lack of potable water and inadequate sewage and electrical systems.
While health care and social services are inherently internal affairs issues, in many cases they are a function of the state for financial reasons. In Quebec health care is within the autonomous government's jurisdiction but Quebec has transferred responsibility for health and social services to the Canadian federal government because the financial burden was too large for the autonomous government. Others, including the people of the Aland Islands, Chittagong Hill Tracts, Micronesia and Northern Ireland, have sole control over health care delivery but with the support of the state by way of subsidies.
Economy
Many autonomous governments have sole or substantial control over their economy. Development of and control over the economy is essential to building economic wealth and a financial base for self-governance.
A good example is Tatarstan, an autonomous member of the Russian Federation. Tatarstan's oil reserves and strong miliary industry positioned Tatarstan to negotiate successfully a bilateral treaty with the Russian Federation. The treaty guarantees Tatarstan substantial powers of self-governance not enjoyed by other members of the Russian Federation. Liechtenstein, though one of the smallest European countries, has highly profitable electronics, metal, pharmaceutical, ceramics and textile industries, as well as lucrative tourism. It is a sovereign state which has chosen a mutually beneficial associated statehood relationship with Switzerland since 1923.
Economic power can also be successfully shared. In Quebec, for example, intra-provincial business is controlled by Quebec, while inter-provincial trade is controlled by the federal government. In the Basque Country, an autonomous region of Spain, Spain exercises control over foreign trade, banking and insurance, while the Basque autonomous government controls all other aspects of the economy. In some cases, state subsidies provide autonomous governments with substantial economic control. The Aland Islands, for example, control their port and shipping industry but require and receive substantial economic aid from Finland.
Lack of a viable economy leads to dependency in many other areas, as demonstrated by the case of the Navajo Nation, located in the southwest of the United States. Similarly, in the TAR, where the economy is controlled by the state, lack of local control over the economy, a weak economy and a low level of autonomy go hand in hand.
Taxation
The power to tax is vital to the control of the economy and government services. There is a strong correlation between taxing powers and substantial autonomy. Many autonomous governments, such as Hong Kong, Micronesia, Liechtenstein and Greenland have exclusive taxing powers. Some autonomous governments may levy taxes with respect to matters within their jurisdiction, while states often reserve the power to tax on matters of state-wide interest. In an interesting twist, some autonomous governments use their taxing power to attract commerce by creating tax-free havens within their jurisdiction. This is the case in Andorra, an autonomous province of Spain. The TAR is one of the very few examples where virtually all taxing powers are within the control of the state. The TAR has the limited authority to grant tax exemptions and reductions in special situations.
Natural Resources
Control over natural resources is an important factor in controlling one's economy and environmental integrity. Natural resources are the main source of actual or potential wealth for many peoples. By the same token, states desire full access to these resources and it is often difficult to persuade states that it is in their best interest to allow an autonomous government control over natural resources. However, the economic viability of the autonomous people is generally in the state's best interest. State concerns over potentially unsound management of natural resources can be addressed through joint regulation of natural resources, linked to international standards and best practices. The more difficult issue to address, and one likely to confront the Tibetan people, is how to maintain control over natural resources against a state government's assertion of a national security interest in those resources.
Many of the highly autonomous peoples examined have control over substantial natural resources. The Aland Islanders, for example, control ownership over their land and the resources it contains and their government controls all natural resources. Such arrangements are also found in the Federated States of Micronesia. Scotland, an autonomous part of Great Britain, has control over its natural resources, except for oil and gas. Greenlanders have substantial control over their natural resources; however, the study, prospecting and exploitation of natural resources is jointly regulated by Denmark and the Greenland government. The people of the TAR have no control over their natural resources. This has deprived them of potential wealth and has led to environmental mismanagement.
Environmental Policy
Sound environmental policies are essential for a sustainable economy and for the protection of all beings within a territory. Further, environmental policies are of great importance to the larger state because environmental devastation often knows no boundaries. For these reasons, both the people and the state usually have a stake in environmental policy.
South Tyrol, Greenland, Zanzibar, Andorra and Scotland enjoy complete control over their environmental policies. Similarly, in Hong Kong jurisdiction over environmental policy is vested in the autonomous government. In the TAR, on the other hand, the central PRC government controls environmental policy. Some autonomous arrangements, such as the Interim Agreement between Israel and Palestine, in the Middle East, provide for adherence to international environmental standards and joint environmental impact assessments. Joint control is therefore not necessarily counterproductive, so long as it is tied to specific international standards.
Transportation
Roads and other aspects of transportation can be of strategic and military importance and of vital importance to the economy. State participation in transportation may be beneficial to an autonomous government which lacks necessary financial and technological resources. However, issues of ultimate control over transportation must be considered very carefully because transportation and population influx often go hand in hand. The autonomous governments of South Tyrol, Liechtenstein, the Aland Islands, Micronesia, Andorra and the Cook Islands, for example, have exclusive power over transportation. Transportation is controlled exclusively by the state in the Navajo Nation, Northern Ireland and Scotland. Examples of shared control are found in the Basque Country, where the autonomous government has control over railways and highways that run completely within its territory.
Postal and Telecommunication System
Most states seek control over postal and telecommunications systems as they may have strategic and military significance. While most autonomous governments chose not to control these systems, which are expensive to run, some exceptions exist. Hong Kongm, for example, controls its own postal and telecommunications systems. San Marino, a tiny state in the middle of Italy, shares a postal union with Italy San Marino,though, issues its own stamps, which are collectors' items due to their small circulation and thus a major source of income.
Law and Order
Control over policing is essential, especially when the relationship between the people and the state has historically been hostile. In most autonomous arrangements, the people alone or jointly with the state control policing and law enforcement. For example, the Aland Islands have sole jurisdiction over their police forces and public order. So do Micronesia, Liechtenstein, Scotland and Andorra.
The Faroe Islands, an autonomous part of Denmark, have joint jurisdiction with the Danish government over law and order. The Faroe Islands government maintains a small police force and coast guard. The Basic Law provides Hong Kong with exclusive jurisdiction over law and order within its territory.
Administration of Justice
In most autonomous arrangements, ultimate judicial control rests with the state. Sometimes, the people have jurisdiction over a limited area of justice administration. Only Micronesia, Andorra and Liechtenstein have an independent judiciary of their own with complete jurisdiction over all civil and criminal matters.
Some autonomous governments have their own judiciary, which is linked in various ways to the state. One such example is Puerto Rico, an island south of the United States in the Carribean Sea, which has an autonomous arrangement with the United States. Puerto Rico has its own court system based on Spanish law, rather than the English law on which the US judicial system is built, but the US retains some control by allowing final judgments of the Puerto Rican court to be appealed to the US Supreme Court.
In Hong Kong, judicial powers are vested in an "independent" judiciary based on English common law. Hong Kong's judiciary, however, is not truly independent because the decisions of its highest court are reviewable by China's National People's Congress.
In some arrangements jurisdiction is divided. For example, the Inuit, a native people in the north of Canada under the 1991 Nanavut Land Claim of Canada have control over the trial and appellate courts, while the Canadian Supreme Court has final appellate jurisdiction. Similarly, Scotland has civil and criminal courts but the highest level of civil appeals lies with the British court. In the TAR, the judiciary is entirely controlled by the PRC.
In negotiations for judicial powers, consideration must be given to the quality of the judicial system of the state and to the traditional judicial system of the autonomous people. In other words, the legal system's process, its neutrality and its independence from political forces may be of more importance than the issue of who controls it.
Currency and Monetary Policy
Most peoples use the currency of the state. However, as with postage stamps, currency may be of symbolic significance. Some peoples have a separate currency which may be used interchangeably, at the same value, with the currency of the state, which controls the monetary policy. This includes the Holy See, which is the Catholic Church's autonomous entity in the middle of Rome, Italy, as well as Scotland, Liechtenstein, the Faroe Islands and Gibraltar, which is part of the United Kingdom. Hong Kong has its own currency, which is independent of Chinese currency.
Determination of Citizenship
Citizenship can be of symbolic importance and can also be linked to other important issues such as immigration, land ownership, voting rights and access to state schools. With few exceptions, autonomous arrangements provide that the autonomous people are citizens of the state. However, Tatars are citizens of Tatarstan and citizens of the Russian Federation. Similarly, the people of Zanzibar are citizens of both Zanzibar and Tanzania. Aland Islanders are dual citizens of Aland Islands and Finland. Hong Kong citizens and the people of the TAR are citizens of the PRC.
Foreign Affairs
Foreign affairs powers can be held exclusively by the autonomous government, by the state or they can be shared. While there is often an assumption that all foreign affairs powers are matters of exclusive state concern, experience shows that foreign affairs powers can be successfully divided and shared. The interests of the state and the autonomous governments can best be met if foreign policy powers are divided in a practical manner, so as to give the state and the autonomous government those foreign affairs powers that complement the other governmental powers they each hold. Autonomous governments that enjoy a high degree of internal self-governance have a substantial interest in participating in matters of foreign affairs which affect their areas of self-governance. By the same token, a state may have little interest in an area of foreign affairs that is related to a governmental function within the control of the autonomous government. Thus, for example, where the state has no control over the economy of the autonomous people, it may have little interest in the power to enter into trade treaties affecting the autonomous territory.
San Marino, Liechtenstein, Andorra and Tatarstan, all are economically strong entities and enjoy the highest level of control over foreign affairs within the entities studied. Liechtenstein, for example, is a sovereign state but through an autonomous arrangement has authorized Switzerland to conduct most of its diplomatic affairs. It retains, however, ultimate power over its foreign affairs.
Some autonomous arrangements provide for limited participation of the autonomous government in foreign affairs matters. In Hong Kong, for example, foreign affairs powers are vested in the PRC. The PRC nonetheless has authorized Hong Kong to conduct certain external affairs on its own in accordance with the Basic Law. Thus, under the name of Hong Kong China, Hong Kong may develop, maintain and conclude relations and agreements with foreign states and international organizations in the areas of trade, shipping, communications, tourism, monetary affairs and culture. Hong Kong is a distinct member of a number of international organizations, including the World Trade Organization, the International Monetary Fund and the Asia Pacific Economic Co-operation.
Palestine, though not yet independent from Israel has diplomatic relations with over 100 states and enjoys United Nations observer status. The Interim Agreement of 1995, however, limits the foreign affairs powers of the PLO to the areas of economic, cultural, scientific and educational agreements with other states. Greenland and the Faroe Islands are subject to Denmark's exclusive jurisdiction over foreign affairs but Greenlanders and the Faroe Islanders have the right to enter into their own trade agreements.
In many other situations, however, the autonomous government does not share control over foreign affairs powers. Some people have the right under their respective autonomy arrangements to join relevant international organizations. The Inuit, for example, are a member of the Circumpolar Conference and the Aland Islanders and the Faroe Islanders send their own separate delegations to the Nordic Council, a regional organization of parliamentarians from the Nordic States. This type of involvement allows the people concerned to contribute their input and views to matters of foreign relations.
In the TAR and the Xinjiang Uighur Autonomous Region, foreign affairs powers are held exclusively by the PRC's central government, with no involvement by the autonomous governments.
Defense
In virtually all the autonomous arrangements, the power of defense is within the exclusive jurisdiction of the state. Hong Kong and the TAR are examples of exclusive state control over defense. Some arrangements provide for demilitarization of the territory inhabited by the people. A major provision of the 1991 Act of Autonomy of Aland, for example, provides that the Aland Islands will remain demilitarized. Similarly, Liechtenstein has been a neutral country since 1866 and is a demilitarized zone. Other autonomous arrangements provide for a reduction in military presence.
Passports/Visas
Control over visas may affect economic development and tourism. Passports may be connected to issues of immigration and also may have symbolic significance for the autonomous people. Passports and visas are mostly controlled by the state. Exceptions are found in the Aland and Faroe Islands, where passports identify the people as citizens of the autonomous government and of the state. Citizens of the Federated States of Micronesia carry their own passports as Micronesian citizens. Hong Kong issues its own visas and passports, though Hong Kong citizens have become PRC citizens. The TAR, on the other hand, has no control over passports or visas.
Customs, Border Control and Immigration
In the great majority of autonomous arrangements, the state controls customs, borders and immigration of foreign citizens. These powers, though, can be exercised jointly or can be divided between the state and the autonomous government. Special attention must be paid to internal immigration and to residency requirements because immigration can have a profound impact on culture and can lead to cultural destruction, especially when citizens of the larger state immigrate into the autonomous territory.
The Holy See and the Federated States of Micronesia are exceptions as they have full control over customs, borders and all aspects of immigration. While Canada has power over borders and customs on Inuit land, the Inuit may exclude non-Inuits, Canadians and foreigners from entering their territory. Canadian military exercises on Inuit land require Inuit agreement. Further, the Inuit have exclusive jurisdiction over deciding who is Inuit. Similarly, the Navajo Nation controls entry into its territory as well as who may reside there.
In some situations, these powers are divided between the state and the people. For example, in Palestine, Israel and Palestine jointly control the borders. The Hong Kong government administers and controls customs and immigration, subject to the ultimate jurisdiction of the PRC, while the PRC administers and controls these matters in the TAR.
Political Rights
Whether the people living in the autonomous region enjoy fundamental freedoms and human rights is one test of whether an autonomous arrangements is working out. In the majority of cases where the autonomous people hold substantial control over governmental powers, international human rights standards are adhered to. Some newly independent states and autonomous arrangements, including the Cook Islands, Andorra and South Africa, have taken a preventive approach by expressly incorporating international human rights standards into their constitutions. Similarly, some autonomous statutes require the autonomous government to protect and promote human rights.
On the other hand, where the basic needs of the people are not met and where the cultural identity of the people is not furthered by the autonomous arrangements, political instability and human rights violations are prevalent. The TAR, which holds virtually no ultimate control over governmental powers, unfortunately exemplifies this problem all too clearly.
Conclusion
As can be seen from the above discussion, the allocation of governmental powers between an autonomous government and a state government is the key to achieving meaningful self-governance for a people. Depending on this allocation, autonomy will either be negligible or substantial. The task for the Tibetan people, therefore, is to carefully examine which governmental powers must be under Tibetan control for Tibetans to have meaningful control over their affairs.
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