State sovereignty and regional autonomy: the Asian experience.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion
 
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This panel was convened at 10:45 a.m., Thursday, April 10, by its panelists: Michael C. Davis of the Chinese University of Hong Kong; Hurst Hannum of the Fletcher School and University of Hong Kong; C. Raj Kumar of the City University of Hong Kong; and Astrid S. Tuminez of the Southeast Asian Research Center City University of Hong Kong.

INTRODUCTION

By Michael C. Davis, Hurst Hannum, Raj Kumar, and Astrid S. Tuminez

The case of autonomy within an existing state has long been a rather weak competitor with sovereign independence in gaining recognition in international law. This has often encouraged ethnic minorities and other distinct territorial communities to insist on sovereign independence even when autonomy may offer many advantages. The pursuit of sovereign independence may often come at great cost in lost or disrupted lives. Autonomy aims to guard the distinct identity of a community and provide the conditions necessary for participation in cultural, social, economic and political life, while affording certain advantages within a larger national context. In spite of the potential importance of autonomy it has traditionally been given very little formal support in the primary international law instruments, though autonomy in some contexts has attracted considerable international interest and solicitude--offering a degree of soft international legal support. International legal support for autonomy, by treaty or by other international involvement, may go a long way toward increasing confidence in the arrangement, as an alternative to insurgent resistance or war. A degree of soft international legal support for autonomy arrangements--generally manifest in foreign policy or resolutions of international organizations--has been evident in several contexts, including sovereignty transfers by treaty, insurgent conflict resolution involving international assistance, distinctive minority or indigenous rights protection, and cases involving colonial experience.

Asia has been among the most active regions in this regard, engaging nearly all of these categories as it seeks to resolve territorial conflicts and secure modern states. This frequent use of autonomy arrangements in Asia is at odds with the region's strong tradition of guarding sovereignty and promoting non-intervention. China, India and the ASEAN countries have made non-intervention a central plank of their foreign policy. Nevertheless, autonomy arrangements in Asia have nearly always attracted international solicitude and sometimes intervention. Is autonomy, as some critics fear, the first step on the road to either assimilation by the dominant population or secession from it, as opponents on opposite ends may argue, or is it the path to peaceful accommodation and forbearance? Does international law have a role to play to better secure its reliability? Asian experience offers some good and bad examples for communities confronting these issues. Panelists discussed four national approaches to autonomy regimes in the Asian contexts: Aceh in Indonesia; India's national policies on regional autonomy; the case of Mindanao in the Philippines; and Chinese approaches in Tibet and Hong Kong.

THE ROAD TO AUTONOMY IN ACEH

By Hurst Hannum *

With the election in December 2006 of a former rebel commander as Governor of Aceh, a province in northern Sumatra that had been in sporadic rebellion against Indonesia for decades, an important milestone was reached. However, the autonomy promised by an August 2005 Memorandum of Understanding and subsequent Indonesian legislation is far from successfully consolidated.

Aceh was once an independent sultanate, and it has a long history of resistance to colonization by the Dutch and others. It was included in independent Indonesia in 1949 and supported the Indonesian nationalist movement, and a rebellion in the 1950s sought to establish an Islamic federation rather than a separate Achenese state. Discontent and a feeling of being marginalized by Jakarta continued, however, fed by the corruption that has characterized Indonesia throughout its history and the fact that Aceh was not directly benefiting from the exploitation of natural resources within its territory, particularly oil and natural gas.

The Free Aceh Movement (GAM) was created in 1976, basing its call for independence on legal and historical arguments that claimed that Aceh was never legally incorporated into Indonesia. The armed movement was relatively easily suppressed, and its leaders fled to Sweden within a few years. GAM relaunched an offensive in 1989, but this, too, was crushed, ushering in a decade of repression and widespread human rights abuses in Aceh known as "DOM", based on the Indonesian acronym for military security zone.

Following the fall of Suharto in 1998, both fighting and negotiations ensued, although various autonomy proposals (such as that of 2001) remained unimplemented. Unusually, a relatively new and small nongovernmental organization, the Geneva-based Henry Dunant Centre (HDC) became the interlocutor between the Indonesian government and the exiled GAM leadership in Sweden. This led to a "Humanitarian Pause" in late 2000, which solidified GAM as the primary (if not sole) legitimate representative of Aceh, although hostilities resumed in April 2001. Some observers have criticized this approach insofar as it marginalized local civil society actors in Aceh, and there is no doubt that the GAM-Jakarta negotiations limited the issues addressed to military and political issues, as opposed to addressing directly issues such as accountability for human rights abuses, economic disparities, and corruption.

A somewhat more successful Cessation of Hostilities Agreement was reached in December 2002, which included a Joint Security Committee, composed of representatives of GAM and the Indonesian military as well as outside military observers, to oversee the agreement. Although initially successful, neither party was truly committed to the agreement, and no political progress was made. War resumed more intensively in May 2003, and martial law was declared in Aceh.

The December 2004 tsunami that devastated Aceh marked the beginning of the end of the conflict. A post-tsunami government offensive was largely successful, and a ceasefire took effect in a few months. In August 2005, a Memorandum of Understanding (MOU), brokered by former Finnish President Martti Ahtisaari, was signed by GAM and Indonesia, and the military conflict effectively ceased.

The MOU provides for fairly wide autonomy for Aceh over everything except foreign affairs, external defense, national security, monetary and fiscal matters, justice, and freedom of religion. The police are to be recruited locally but remain part of the Indonesian national police force; Aceh has the right to raise taxes, receive external direct investment and loans, and exercise jurisdiction over sea resources; Aceh is to receive 70% of revenue from all natural resources; and Achenese consent is required for the application to Aceh of any international treaties or Indonesian laws or administrative measures. Crucially, the MOU also allows the formation of local political parties (formerly prohibited), enabling GAM and others to turn to politics. Amnesty was declared for all former GAM fighters, who are free to serve in the Aceh administration and police, and a Human Rights Court and Commission for Truth and Reconciliation are to be created, although the extent of their authority is unclear. Former GAM members are to be reintegrated into society and are to be allocated farmland, employment, or social security to facilitate the reintegration.

It took a year for the Indonesian legislature to adopt a lengthy autonomy law to implement the MOU (Law No. 11/2006), and the law was widely perceived not to reflect a number of the points agreed to in the MOU. Among the particularly problematic provisions is the general subordination of any "security" matter to the Jakarta authorities (art. 7) and the watering down of the MOU's requirement for Achenese "consent" to treaties, laws, and administrative measures to require only "consultation" (art. 8). There are also frequent reminders that Indonesia is a "unitary state," a phrase that appears only once in the MOU. In addition, both the MOU and the autonomy law envisage that administrative measures will need to be adopted by Indonesia before regional institutions in Aceh can actually begin to function; in practice, there has been very little progress on this front, so the actual degree of autonomy exercised by Aceh is partial at best.

While there seems to be little likelihood of a return to armed conflict, Aceh is plagued with continuing problems of extortion, alleged favoritism by newly elected GAM officials towards their own, widespread criminality, and a general lack of effective authority in the province. Reintegration efforts have been problematic, and proposals from inhabitants in the highlands of southern Aceh to split the province (strongly opposed by the new Aceh government) continue to be made.

While the "international community" was important in mediating the conflict and providing financial assistance, international law per se played almost no role in either the negotiations or the implementation of autonomy. With the possible exception of insistence on enforcing human rights standards, the autonomy arrangements were designed to suit the particular situation of Aceh, and there is no obvious model that was followed.

Similarly, there is no reason to view Aceh's autonomy as a precedent for other ethno-territorial conflicts, at least outside of Indonesia. In Sri Lanka, for example, it would be much more difficult to carve one autonomous unit out of the smaller country or create a two-unit federation, as opposed to the need for decentralization in the much larger and more diverse Indonesia. The LTFE remains a much stronger force than was GAM in 2004-2005, despite some...

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