INTRODUCTION

(1) Following memorandum seeks to outline several possible forms of special constitutional relations (confederalism, federalism, autonomy) as they exist or have existed internationally. This memoran­dum does not seek to prejudice or state any UNPO preference for any of the regimes outlined below, as this is something for the Government of Abkhazia to decide. Merely for the information of the Government of Abkhazia, a broad range of different constitutional models is covered. Please find some general remarks on federalism, autonomy and confederalism followed by brief sketches of the Färöe Islands, Greenland, Spain, the Åland Islands, Belgium, Canada, the Benelux, the Marshall Islands and Micronesia, Puerto Rico, Bhutan, and Liechtenstein. Further, some remarks are made on the conditions in which Bangladesh and Eritrea obtained indepen­dence.

(2) It is important to note that terms like "autonomy" or "con­federation" cover a great variety of possible legal regimes. For instance, the term "autonomy" has had in the context of the Soviet period of Abkhazia's history a meaning vastly differing from the autonomy of the Åland Islands. It will depend on the particular circumstances of the case how a constitu­tional regime will work out in practice. The remarks on the differences between "autonomy", "con­federation" and "federation" are therefore made in a broad-brush fashion. Thus, a decentral­ised form of federalism may bring more self-government than a restricted form of confederation. A lot depends on the practical structures adopted.

(3) Confederations, federations and similar constitutional regimes may result from purely domestic peaceful association (such as the regime for autonomy in Spain) or as the result of international develop­ments (such as for example the regime currently in force on the Åland Islands). Apart from this, there is a plethora of forms of autonomy, ranging from limited cultural rights to the dissolution of a state into a con­federation. The examples of autonomy or con­federated regimes chosen in this memorandum have been taken because they may be the most useful precedents in the discussion about the status of Abkhazia.

(4) The weakest form of autonomy is the granting of minority rights. Such minority rights can be very liberal (as for example is the case with the Swedish minority in Finland), less liberal (as for instance in Romania) or downright denied by the state (as in France, which denies having national minorities at all). Additionally, a lot will depend on the goodwill of the state to live up to its obligations. The political realities of the Abkhaz-Georgian conflict as well as the past experiences of Abkhazians make the option of minority rights not relevant as a solution of the problem. However, as part and parcel of a human rights regime within Georgia and within Abkhazia, rights for minorities may do much to mitigate sources of conflict and nationalism in each country.

(5) In the context of minority rights it is noteworthy, that Georgia is bound to apply the liberal minority rights listed in the Document of the Copen­hagen meeting of the Conference on the Human Dimension which was adopted by the Conference on Security and Cooperation in Europe in 29 June 1990. Although this document is not a treaty, its provisions have a "para-legal" force and are to be seen as politically binding. The relevant articles are reproduced in annex 1.

(6) Usually more beneficial than minority rights is a form of decentralisation as for example exists in the Netherlands. In that country (which officially is a decentralised unitary state) the central government has transferred many powers to the provinces and municipalities without, however, prejudicing its power to centralise policies if the need arises. The result has been beneficial for the development of minority cultures such as that of the Frisians. In Spain decen­tralis­ation has been carried to the point of federalising the Spanish state. The main difference between mere decentralisation and federalisation is, that the government of a decentral­ised state retains its full sovereign powers, including the power to revoke autonomy granted.

(7) Different models of federalism exist. In a federation the federated states as well as the union have sovereign powers in their own fields of government. This implies the necessity for a separation of legislative and administrative respon­sibilities (competencies) between the federated states on the one hand and the union on the other. In modern federalist constitutions this separation is done by the inclusion in the constitution of lists enumerating exclusive central responsibilities, exclusive responsibilities of the federated states, and (sometimes) a list enumera­ting concurrent respon­sibilities. Usually there is in federal states a necessity for some kind of arbitrating body (for instance, constitu­tional court) to adjudicate differences of opinion on issues of sovereignty and responsibilities between the federated states and the union (as for instance in Germany and the United States). Next to this, a federal constitution usually provides some kind of body representing the federated states at the federal level. Whereas this usually is an elected second chamber of parliament (as e.g. the Senate in the US Congress), this is not mandatory; thus, in Germany the second house of parliament is a council of the prime ministers of the federated states (the Bundesrat). The division of legislative responsibilities does not have to be the same as the division of administrative responsibilities (as the German example amply shows).

(8) Constitutions of federal states may admit the possibility of secession but, as the example of Yugoslavia amply shows, even this does not necessarily prevent war.

(9) Usually a confederation is described as a state-like structure in which, however, all constituent republics have retained their sovereignty including their legal personality in inter­national law. Ultimately, this usually implies the right to withdraw from the confederation and seek independence or allegiance with another state. A probable example of a confederation is the Commonwealth of Independent States, and maybe the economic and monetary union between Eritrea and Ethiopia. Confederations may or may not imply a common defence, currency and other attributes of statehood.

(10) A number of very small states exist, which have retained a special relationship with either a neighbouring country or the former colonial power. In the first category belongs Bhutan, which has a special relationship with India while remaining a subject of international law. An example of the latter is formed by the relation between Micronesia and the United States.

(11) Evidently, the fact that a legal regime has been laid down in a constitution or international instrument does not necessarily imply that the obligations of all parties are lived up to. For example, the United Nations General Assembly decided in 1950 that Eritrea was to be federated with Ethiopia (resolution 390 A). In flagrant contravention of the General Assembly's resolution the Ethiopian Emperor annexed Eritrea in 1962, resulting in a civil war which lasted till 1991. As a result of the federation, however, Eritrea had no status or representation in the international community. This severely reduced its capability to regain its rights.

(12) Questions of confederalism, federalism or autonomy are in principle to be separated of questions concerning state symbols. Thus, the United Kingdom, which is a unitary state, has separate national soccer teams for England, Scotland, Wales and Northern Ireland. Similarly, every part of the United Kingdom has its own symbols on coins (which, however, are nationally of the same size and weight), its own flag and coat of arms.

THE FÄRÖE ISLANDS

(13) The Färöe Islands are part of Denmark and are situated in the North Sea, some 400 kilometres North of Great Britain. The Islands are populated by people speaking the Färöe tongue, which more resembles Icelandic than Danish. The popu­lation numbers around 50,000.

History

(14) The islands have been successively Irish, Norwegian and Danish. They have been part of Denmark for over six centuries. From 1948 the Danish government has steadily improved the status of autonomy ("self-government") of the Färöers. The law on Färöer Home Rule is reprinted in annex 2.

Language and symbols

(15) The official language on the islands is Färöer, although Danish is allowed for official purposes as well. In practice it is necessary for long-time Danish residents to learn Färöer. Education is in Färöer, although Danish is taught as well. The Färöer have their own flag and currency. Danish passports issued to Färöers must mention as country: "Denmark - Färöer" and as nationality of its bearer: "Danish - Färöe".

Parliament and administration

(16) The Färöe Islands have their own local parliament (Løgting) and administration (Landes­styrid). In a number of fields (the local administration, law governing the election of the Løgting, taxes, communication, housing, labour matters, agriculture, fisheries and broadcasting) the local parliament (Løgting) is solely responsible. The main principle behind the law on autonomy is, that the Färöe Islands can have as much responsibilities for their own affairs as they are willing to take. This also implies, that they will have to carry the costs them­selves. A yearly subsidy is granted by the Danish government.

(17) Denmark is represented in the Färöe Islands by a Commissioner (Rigsombudsmand). The Färöe Islands are represented in the Danish parliament with two deputies (which cor­responds to the size of the Färöer population in the total population of Denmark).

External relations

(18) In principle, the foreign relations of the islands are taken care of by the central government. However, on subjects directly concerning them the islands may conclude treaties subject to approval beforehand of the Danish government.

(19) Treaties, statutes and administrative orders drafted by the central authorities which include provisions exclusively concerning the Färöe Islands shall not be adopted before they are referred to the Färöer authorities for comments. If international negotiations are taking place on subjects that are of particular interest to the Färöe Islands, the central government may permit the territory to negotiate directly.

(20) The Färöe Islands are a separate member of the Nordic Council, an international govern­mental organisation encompassing all Scandinavian countries.

Defense

(21) Defense is strictly a central matter, taken care of by the Danish navy. There is no military service on the Färöe islands.

GREENLAND

(22) Greenland is part of Denmark and is situated in the Northern Atlantic Ocean. It is populated mainly by the indigenous Eskimos speaking their indigenous language (Greenlandic) and by some Danes. The popu­lation numbers 55,000.

History

(23) Greenland was colonised by some Norwegians in the Tenth Century. Ultimately the island came in Danish hands. Its present status within Denmark is regulated by the 1978 Greenland Home Rule Act (in force since 1979, annex 3). This Act was drafted by a mixed Danish-Greenlan­dic Commission (five Danes, five Greenlanders).

Language and symbols

(24) Although both Danish and Greenlandic are official languages, the principal language in public affairs in Greenland is Greenlandic. Danish must be taught in schools. Greenland has its own flag and coat of arms.

Parliament and administration

(25) Greenland has its own parliamentary assembly (Landsting) and administration (Lands­styre). These bodies may determine which competencies of the following list they want to have trans­ferred to them (to the exclusion of the central Danish institutions): organisation of home rule in Green­land; organisation of local government; direct and indirect taxes; religious matters; fishing in the territory, hunting, agriculture and reindeer breeding (these are the most important economic activities in Greenland); conservation; country planning; legislation governing trade and com­petition (including legislation on restaurant and hotel business, regulations governing alcoholic beverages, and regulations governing the closure of shops); social welfare; labour market affairs; education and cultural affairs, including vocational education; other matters relating to trade; health matters; rent legislation; supply of goods; international transport of passengers and goods; and protection of the environment. Within its jurisdiction, Greenland authorities have full legislative, administrative and budgetary powers. If Greenland's authorities do not use a competence, the central govern­ment may request them to administer central laws. In that case, the central government will grant proper subsidies to the Greenlandic authorities. However, in practice Greenlandic authorities have used almost all competencies listed above (health matters are still dealt with centrally). If Greenlan­dic authorities agree, the central government may decide to transfer competencies not listed above to the territory.

(26) Denmark is represented in Greenland by a Commissioner (Rigsombudsmand). Greenland is represented in the Danish parliament with two deputies (which corresponds to the size of its population in the total population of Denmark).

(27) Should differences on issues of jurisdiction arise, they are to be resolved by a board consisting of two representatives named by the central government, two representatives named by Green­land, and three judges named by the president of the Supreme Court. One of the three judges shall be the board's chairman. If the four nominated by the central government and Greenland reach agreement, the matter is settled. Otherwise the three judges will adjudicate the matter.

Resources

(28) The Greenland Home Rule Act stipulates, that the `resident population of Greenland has fun­damental rights in respect of Greenland's natural resources.' Preliminary study, prospecting and exploitation of non-living resources shall not take place except with agreement between the central government and the Landsstyre. If a member of the Landsstyre so demands, special consent of the Landsting is required.

External relations

(29) In principle, the foreign relations of Greenland are taken care of by the central government. However, on subjects directly concerning Greenland it may conclude treaties subject to approval beforehand of the Danish government.

(30) Treaties, statutes and administrative orders drafted by the central authorities which include provisions exclusively concerning Greenland shall not be adopted before they are referred to the Greenlandic authorities for comments. If international negotiations are taking place on subjects that are of particular interest to Greenlandic, the central government may permit the territory to negotiate directly.

(31) Greenland is a separate member of the Nordic Council, an international govern­mental organisation encompassing all Scandinavian countries.

Defense

(32) Defense is strictly a central matter, taken care of by the Danish navy. There is no military service on Greenland.

SPAIN

(33) The Spanish population is made up of Castilians, Asturians, Andalusians, Valencins, Catalans, Basques and Galicians.

History

(34) Although Spain was originally a highly centralised unitary state, the struggle for autonomy by several groups led to a number of constitutional reforms that decentralised the country. The present Constitution guarantees the right to autonomy of the nationalities and regions within the territory of Spain. The compromise formula in Article 2 of the Constitution states, that "[t]he Constitution is based on the dissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, and recognises and guarantees the right to autonomy of the national­ities and regions which make it up and the solidarity among all of them.'

Language and symbols

(35) Within the competence of the autonomous communities lies the right to recognise the regional language (next to Castilian, the official Spanish language of the state) and own flag (besides the flag of Spain).

Local administration

(36) In the exercise of this right of autonomy, bordering provinces with common historical, cultural and economic characteristics may accede to self-government and constitute themselves into "Autonom­ous Communities".

(37) The initiative for the institution of autonomy of a province belongs to all the interested Deputations of the provinces concerned, and to two-thirds of the municipalities whose population represents at least the majority of the electorate of each province. The Constitution bans the federation of Autonomous Communities.

(38) The Spanish constitution is very clear and detailed about the competence of the Autonom­ous Communities. Article 148 lists matters in which the Autonomous Communities may assume competence, while Article 149 lists all matters in which the State holds its exclusive competence (see annex 4). The list of Article 148 features:

- the organisation of the institutions of self-government, alterations of municipal borders within the Autonomous Community,

- regulations in the field of territory, urbanisation and housing,

- public works of interest to the Autonomous Community in its own territory, railways and highways which have their initiary in the Autonomous Community, ports and airports,

- agriculture, woodlands/forestry, environmental matters, water projects, canals, irrigation systems of interest to the Autonomous Community, mineral and thermal waters, inland-water fishing and hunting,

- interior fairs, promotion of economic development (within the objectives marked by the national economic policy), handicrafts,

- museums, libraries and conservatories, monuments of interest to the Autonomous Community, promotion of culture, research and (where applicable) the teaching of the language of the Autonomous Community,

- promotion of tourism, sports and adequate leisure,

- social assistance, health and hygiene,

- the custody of buildings and installations, the coordination of local police.

(39) The exclusive competencies of the state amount to the following (see annex 4):

- the regulation of the basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and constitutional duties,

- nationality, immigration, emigration, alienage and the right of asylum,

- international relations (thus, only Spain can represents Autonomous Communities abroad),

- defense and armed forces,

- administration of justice, mercantile, penal and prison legislation, procedural legislation, labour legislation, civil legislation (all this legislation without prejudice to substantive law of the Autonom­ous Communities), legislation concerning intellectual property, systems of customs, tariffs and foreign trade, monetary system, foreign credits, exchange and convertibility, regulation of banking and credit, legislation on weights and measures, determination of the official time,

- coordination of general planning and economic activity, general finance and debt of the state,

- promotion and general coordination of scientific and technical research,

- general coordination of health, legislation concerning pharmaceutical products,

- basic legislation concerning social security,

- maritime fishing, merchant marine, ports and airports of general interest, control of the air space, railways and roads crossing the borders of more than one Autonomous Community, general communications system, mail, legislation concerning water resources if these involve more than one Autonomous Community, certain legislation on energy, environment (without prejudicing legislation of Autonomous Communities), basic legislation on forestry, public works of general interest, basic legislation on mining,

- the production sale, possession and use of arms and explosives,

- basic norms of the system of press, broadcasting, other communication,

- protection of state owned museums, libraries and archives

- public security,

- the regulation of academic degrees

- statistics for state purposes, the convocation of popular consultations via referendum,

If matters are covered in both lists, the state will have the right to establish the basic norms and the Autonomous Communities the right to enact further regulations.

(40) Although some of the peoples in Spain (like the Catalans and the Basques) still struggle for more independence, the Spanish Constitution is an interesting example how to constitute a country made up of different peoples, each having their own historical, cultural and economical back­ground.

Defense

(41) The decentralisation process has not prejudiced Spain's defense policy. Defense is still a centrally administered field of policy.

THE Ã…LAND ISLANDS

(42) The Åland Islands are a part of Finland and are situated in the Baltic Sea, between mainland Finland and Sweden. The Islands are overwhelmingly populated by people of Swedish ethnicity. The popu­lation numbers around 21,000.

History

(43) When Finland obtained its independence from Russia at the end of the First World War, it claimed the borders which it had had during the Russian occupation. This included the Ã…land Islands, whose inhabitants, however, overwhelmingly opted for accession to Sweden. The League of Nations (the predecessor to the United Nations) mediated in the ensuing dispute, which led to a unique regime of autonomy. In 1951 this regime was altered so as to make the Ã…landians even more autonomous. The autonomy of the Ã…land Islands has been regulated in such exemplary fashion, that their population has been quite content to remain within the state of Finland.

Language and symbols

(44) On the Ã…land Islands the local language, Swedish, is the only official language. No officials or people employed in education may be hired who does not speak Swedish. All signs and documents on the islands have to be drafted in Swedish. Ã…land has its own stamps and flag.

Right to residence

(45) The population is protected by a conservative regime for residence. Only those people have the right to vote, to possess immovable property or to trade on the islands who have been living there permanently. Other Finnish citizens are only granted these rights after five years of continued residence.

Local parliament and administration

(46) A local parliament (the Ålandian "Landsting") is empowered in all matters regarding internal legislation. The only limit to the legislative capacity of the Landsting is the security of the Finnish state. Finnish legislation must be confirmed by the Landsting before it can take effect on the Åland Islands. The administration on the islands is done by a seven-member local government ("Land­skapsstyrelse") which is elected every four years by the Landsting. The costs of administration are covered out of the tax revenues collected on the islands by the Finnish government. Every year the height of the new budget is decided jointly by the Landsting and Finnish government.

(47) The Ã…land Islands are further represented in the Finnish parliament with one deputy (which corresponds to the size of the Ã…landian population in the total population of Finland). On the other hand the Finnish state is represented by a Governor, who is nominated by the Finnish government after consultation of the Landsting.

(48) In 1991 the Ã…landian autonomy was further consolidated by an amendment of the Finnish Constitution. From now on, all information in the islands must be given in Swedish. Passports issued in the islands must specify "Ã…land". Property without heirs will revert to the province rather than the Finnish state.

External relations

(49) Being part of Finland, the external relations of the Islands are taken care of by Finland. However, the islands do have their own representation in the Nordic Council.

Defense

(50) The Åland Islands are demilitaris­ed, which implies that it is prohibited even to the Finnish military to enter them. As a result of the demilitarisation of the islands in 1947, the population is exempted of military service.

BELGIUM

(51) Belgium consists (apart from a small region in the East inhabited by German-speakers) of three administrative parts: Flanders in the North (which is vastly Dutch-speaking), Wallonia in the South (which is vastly French-speaking) and almost in the centre the capital region Brussels (which is officially and factually bilingual). The population of Flanders totals some 5 million; that of Wallonia some 4 million. Bilingual Brussels has a population of about one million, almost half of them Dutch-speakers.

History

(52) Belgium seceded from the Netherlands in 1830. Although initially a strongly centralised state dominated by French speakers, growing Flemish nationalism and economic clout forced a bilingual regime and some decentralisation. This, however, has not sufficed to stop further disintegration of the Belgian state: when Flanders gained enormously in economic power, advocates for further independence have gained in strength as well. At present, a new review of the constitution is under way. This will "federalise" the country to an extent where Flanders and Wallonia obtain most governmental competencies.

Language and symbols

(53) The official languages of the central government are Dutch and French. In Flanders the official language is only Dutch, in Wallonia it is only French. Civil servants, courts and official documents may only use the official language. In Brussels (which is geographically an enclave within Flanders) both language may be used. In the German-speaking Eastern tip of the country German can be used as well.

Local parliament and administration

(54) The constitution is the result of extensive haggling and is immensely complex. Both the "pe­rsonality principle" and the "territoriality principle" are used. The first principle implies, that the country is divided in three "communities". Thus the communities are the French-speaking community (encompassing all French-speakers), the Dutch-speaking community (encompassing all Dutch-speakers) and the German-speaking community. Next to this, the country is divided as well into three "regions" (gewesten: Flanders, Wallonia and Brussels). As a result the country has six governments: one for Flanders and the Flemish community, one for Wallonia, one for the French-speakers in Belgium (i.e., parts of Wallonia and Brussels), one for Brussels, one for the German-speaking parts of Wallonia, and finally the central government. Via an inordinately complex division of powers competencies are divided over these six governments. It must be added, that this system is likely to be reformed, resulting in the factual abolition of the separate "communities" and thereby reducing the number of governments to four or five.

(55) Apart from these distinctions, both Flanders and Wallonia are divided in provinces, which are in turn are divided in municipalities.

(56) The central government is only competent in those fields of policy which are explicitly attributed to it. The most important of these are:

- the maintenance of the economic and monetary union in Belgium, price and income policy, competition policy, trade law, labour law;

- foreign policy and representation abroad (but see below);

- defense

- energy policy, roads, railways and ports.

(57) The communities are in principle empowered to administer the following policy fields:

- language matters, cultural matters, broadcasting

- some aspects of education

- most matters concerning health care

(58) The regions have competencies in the following policy fields:

- city planning