Overseas countries and territories (OCT)

The twenty-one overseas countries and Territories (OCTs) depend constitutionally on four
of the European Union (EU) Member States: Denmark, France, the Netherlands, and the
United Kingdom. OCT nationals are European citizens.
However, these countries do not form part of EU territory. Accordingly, they are not
directly subject to EU law, but they benefit from associate status conferred on them by
the Treaty of Lisbon. The aim of this association is principally to contribute to their
economic and social development.

Overseas countries and territories (OCTs): towards a new partnership

Future relations between the EU and Overseas Countries and Territories (OCTs)
Association of the OCTs with the European Community

Budgetisation of the European Development Fund

European Development Fund (EDF)

Overseas countries and territories (OCTs): towards a new partnership

The European Union intends to reform the principles which form the basis of its
cooperation with overseas countries and territories (OCTs). This new approach shall
support the sustainable development of OCTs whilst taking due account of their
specificities.

ACT
Communication from the Commission to the European Parliament, the Council,
the European Economic and Social Committee and the Committee of the Regions
of 6 November 2009 - Elements for a new partnership between the EU and the
overseas countries and territories (OCTs) [COM(2009) 623 final Not published
in the Official Journal].

SUMMARY
Relations between the European Union (EU) and Overseas Countries and Territories
(OCTs) should evolve into a reciprocal partnership, founded on mutual interests. These
relations are currently defined by the framework for association established by Decision
2001/822/EC.
This Communication presents a new approach aimed at supporting the sustainable
development of OCTs by adapting the cooperation principles and priorities to the
specificities of these countries and territories. In addition, if their level of development is

generally higher than that of African, Caribbean and Pacific (ACP) states, certain OCTs
shall continue to benefit from European aid to fight against poverty.
Supporting sustainable development
The future partnership, based on Article 198 of the Treaty on the Functioning of the EU,
should prioritise three axes of cooperation:

the competitiveness of OCTs in key areas such as education and training,

innovation, the small and medium-sized enterprises sector, and good political and

economic governance;
reducing their vulnerability to economic shocks, environmental issues, energy

dependency and natural disasters;

regional integration through increasing intra-regional economic exchanges,
carrying out cooperation projects (specifically for cross-border environmental protection)
and increasing cultural exchanges.
Cooperation should be tailored to the situation of each partner.
European financial and technical assistance shall be improved, specifically by
coordinating financial instruments with those for the Outermost Regions, ACP states or
other countries neighbouring the OCTs.
OCTs may participate in certain Community programmes (such as the 7th Research
Framework Programme). The programmes must therefore be adapted to the new
priorities.
Cooperation priorities
The Commission has identified a set of areas for cooperation which should enable the
potential of OCTs to be developed. They involve:

establishing centres of excellence and expertise to manage the advantages and

difficulties of each territory;
upgrading OCT legislation to EU rules and standards, specifically to encourage
the trade of goods and services (for example by bringing customs procedures and

sanitary and phytosanitary standards closer together) and compliance with the principles
of transparency on tax;
developing environmental cooperation to support the transition of OCTs to a
greener economy, and helping them adapt to climate change, biodiversity protection, the

promotion of renewable energies and disaster risk reduction;

improving the OCTs accessibility by developing information and communication

technologies and transport infrastructures;

increasing trade and economic cooperation in terms of international trade
liberalisation, which entails reciprocal trade relationships and specific rules of origin.
Background

The Communication follows the Green Paper on future relations between the EU and
OCTs. The conclusions of the Green Paper support the revision of the existing framework
for association.

SNP urged to publish secret legal advice on separate

Scotland EU membership
The SNPs foreign minister must publish secret legal advice on a separate Scotlands
links with the European Union after her refusal to commit to membership, opposition
parties have said.

Alex Salmond has been urged to publish secret legal advice on whether an independent Scotland would have to reapply for EU membership Photo: Jamie Jones/Rex Features

By Simon Johnson, Scottish Political Editor

6:00AM BST 10 Sep 2011
Follow

The Daily Telegraph reported how Fiona Hyslop, the SNP External Affairs Minister, said a
separate Scotland would choose between joining the EU and the European Free Trade
Association (EFTA).
The reversal of long-standing party policy prompted Labour to demand the SNP publish expert
opinion on whether an independent Scotland would automatically retain EU membership
following separation from the UK.

If not, Scotland would have to apply for membership as a new accession state. The distinction is
significant as this would mean the British opt-out from the euro would not apply and Scotland
would be forced to join the single currency at some point after joining.
Scottish ministers are believed to have commissioned legal advice examining the issue, but they
have refused an application for it to be released under Freedom of Information laws.
Iain Gray, Labours Holyrood leader, said Miss Hyslops comments made unanswerable the
case for the information to be published.
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28 Feb 2012

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Scots presenters 'should be favoured over English'

02 Dec 2010

Claiming it is contrary to the public interest is an outrageous attempt to hide the facts and skirt
the issue, because their plans for separation have not been thought through, he said.
As for the Scotland Alex Salmond wants to see, he cannot tell us what currency it would have,
how it would defend itself or if it could enter the European Union.
EFTA consists of only four European states Iceland, Liechtenstein, Norway and Switzerland
while the EUs 27 member states account for the bulk of Scotlands exports.
Miss Hyslops admission that EFTA membership was an option surprised opposition parties, who
said that leaving the EU would be a hammer blow to the economy.

Her statement came only hours after Mr Salmond told MSPs that an independent Scotland would
hold a referendum on joining the euro, a prerequisite of which is EU membership.
The confusion in senior SNP ranks on such a fundamental issue prompted accusations they have
little idea of what a separation will mean in practice for Scotland.
Mr Salmond has argued that Scotland would automatically remain a member of the EU but has
been contradicted by Struan Stevenson, a Tory MEP, and Joe Borg, a former European fisheries
commissioner, who said new membership was required.
There is no precedent for an existing member state being split and the EU is not expected to
issue a definitive statement before Mr Salmonds independence referendum.
Senior sources in Brussels told this newspaper the existing 27 member states would make a
ruling in the event of a yes vote, but this means Scots going to the polls not knowing which
currency a separate Scotland in the EU would use.
The Freedom of Information request for information on the issue held by Scottish ministers was
tabled by Catherine Stihler, a Labour MEP, but was refused last month.
The rejection was made on the grounds that releasing the documents would prejudice
substantially the SNP administrations conduct and it would be contrary to the public interest.
The First Ministers senior special adviser attempted to roll back on her comments about EFTA.
He said: The position is perfectly clear an independent Scotland will be a member state of the
European Union.
It is the practice of successive governments, reflected in the Scottish Government ministerial
code, that the fact and content of legal advice is not disclosed."

http://www.telegraph.co.uk/news/uknews/scotland/8753776/SNP-urged-topublish-secret-legal-advice-on-separate-Scotland-EU-membership.html
Subject: Issues relating to EU membership
Answer(s)

In its reply to my Oral Question H-1086/06(1), the Commission said that my question raised many issues of
international law but that it was not customary for the Commission to state its views on matters which, as
things stand, are purely hypothetical. Following the Scottish Parliament elections in May 2007 the situation
is less hypothetical and I call again on the Commission to address my questions.
If part of a current EU Member State declared its independence, can the Commission confirm whether or
not this new state would automatically assume membership of the EU? If automatic membership does not
follow, what process would the breakaway state have to go through to become a Member State? Would
there be any membership implications for the existing Member State? Furthermore, what financial

implications, for example, in terms of Structural Funds, would follow for the existing Member State and the
new state?

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E2007-2886+0+DOC+XML+V0//EN&language=EN#def1

Parliamentary questions
E-2886/2007

13 July 2007
Answer given by Mr Barroso on behalf of the Commission
The Commission maintains that, as things currently stand, the situation envisaged remains
hypothetical.

http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-20072886&language=EN

Does Self-Determination Entail an Automatic Right to Secession?

MICHELE CAPELETO , MAY 2 2014
THIS CONTENT WAS WRITTEN BY A STUDENT AND ASSESSED AS PART OF A UNIVERSIT Y
DEGREE. E-IR PUBLISHES STUDENT ESSAYS & DISSERTATIONS TO ALLOW OUR READERS TO
BROADEN THEIR UNDERSTANDING OF WHAT IS POSSIBLE WHEN ANSWERING SIMIL AR
QUESTIONS IN THEIR OWN STUDIES.

Despite the centrality that states undoubtedly have in international relations, in particular
in the formation and evolving practice of the international legal order, the dynamics of
state birth and extinction remain mostly unregulated by law hence generating confusion
and contradictions among different cases. Contemporary public international law
enumerates at least two seemingly contrasting concepts that govern these phenomena:
the principles of self-determination and territorial integrity.
In theory, [b]y virtue of [] self-determination [] all peoples always have the right []
to determine, when and as they wish, their internal and external political status. One
[1]

may infer that all peoples, whose definition remains vague to say the least, can refer to
this notion in order to secede from their patron state and create a new state entity. We
[2]

will refer to secession, to differentiate it from devolution, as an act aimed at creating a

new independent state from territory originally part of another one, stressing the lack of
consent from the former sovereign. However, secession in the case of self-determination
[3]

(which would be referred to as external) should be regarded as an ultimum remedium,

since the principle can manifest itself in two different paths.

Besides, to counterbalance the potentially destabilising effect that external selfdetermination might have on the international order, international law also comprises the
principle of territorial integrity, which basically concerns continuity of borders for
sovereign states, preventing them from being deprived of their territorial wholeness.
[4]

The norm is closely related to the doctrine of uti possidetis juris, which in modern times

has been associated with the reaffirmation of colonial boundaries after former colonies
achieved independence.

[5]

This paper demonstrates that in order to reconcile these two notions, international law
has evolved in a way that focused on preventing conflicts over territory, rather than giving
primacy to other claims that would seem legitimate in the light of human rights and
minority contexts. As a consequence, the principle of territorial integrity has often (albeit
not always) been placed above that of external self-determination, especially since the
general interpretation of the latter, through state practice and codification from
international organisations, remained confined to the context of the post-WWII
decolonisation process. Hence, beyond cases of decolonisation, self-determination has
not automatically provided peoples with a right to secession.
In spite of this, international law has to be seen as a process in constant evolution, and
the aftermaths of the dissolutions of the Union of Soviet Socialist Republics (USSR) and
Socialist Federal Republic of Yugoslavia (SFRY) brought renewed interest in the issue.
Some authors have revisited the relationship between the two notions, suggesting that
the scope of self-determination could be expanded to cases beyond decolonisation
when international supervision is granted or gross and systematic violations of human
rights occur. The Kosovo case, notwithstanding the evident contradictions that were
involved, can be interpreted as a result of this approach, and despite its being defined as
a sui generis event, it can have the effect of fuelling future claims from other groups.
Some Underlying Concepts and Caveats
The right to self-determination, notwithstanding a persistent ineffable aura, can manifest
itself in two different forms: an internal one (often associated with human rights and
democratic values), in which peoples rights are recognised within an independent state,
or an external one, meaning either devolution or secession. One important caveat is that
[6]

international instruments avoid detailing which peoples have a right to self-determination

and which form they qualify for. Are these entities the population of a territory as a whole,
minorities, indigenous peoples, or ethnic groups? So far, it is sufficient to notice that apart

from whom is entitled to the right, also how to distinguish these terms can be
controversial.

[7]

The aim of a people seceding via self-determination is to establish a new state entity. A
huge debate surrounding state creation and its nature still divides scholars between
constitutivists and declaratorists, but what unites them is the attention devoted to the act
of recognition. Even if the 1933 Montevideo Convention identified the characteristics that
[8]

states should possess to be defined as such, the list providesnecessary but

not sufficient statehood criteria. These include a permanent population, defined territory,
a government, and the capacity to enter into relations with other states. It is evident that
[9]

recognition (especially from powerful international community members), a clearly

political act, has proved to be decisive in certain situations, and even viability can
possibly be considered an additional criteria. If we accept the declaratory theory
[10]

namely that statehood is determined by facts and not by recognition it becomes hard to
deny de facto states like Taiwan or Somaliland membership in the community of states.
Besides, any people seriously committed to secession, including the Basques and
Chechens, could aspire to such a status.
Another problem is that, given the absence of terrae nullius territories unoccupied and
unacquired seceding entities can obtain the second feature of the Montevideo
Convention only by infringing two peremptory norms of international law, namely the
prohibition on the use of force and territorial integrity. This most certainly has a
[11]

correlation with the pervasiveness and resilience of anti-secessionist positions among

states.
Self-Determination: Origins and Its Decolonisation Interpretation
As we briefly mentioned before, self-determination today is a concept that has gained full
legal normative status. A whole series of treaties, declarations, and judicial decisions
contribute to make self-determination a norm of international law. Most importantly,
states conduct has demonstrated the legal relevance of the principle, reinforcing the
element of opinio juris. Borrowing the words of Cassese, self-determination means that
[p]eoples must be enabled freely to express their wishes in matter concerning their
conditions.

[12]

Self-determination, as a political aspiration, began to be discussed after the Great War

(mainly sponsored by US President Wilson), but it failed to become generally accepted
as a legal norm; as a matter of fact, during the Aaland Islands case, it was clearly defined

as a purely political concept. It was only with the establishment of the United Nations
(UN) that the notion became more prominent, firstly with the inclusion in the UN Charter,
and subsequently via states practice.

[13]

Definitions of the principle serving also as a law-creation steps comprise United

Nations General Assembly (UNGA) Resolution 1514 (XV), the 1966 International
Covenants on Human Rights, the 1970 Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States, 1975 Helsinki Accords
Final Act, and 1993 Vienna Conference on Human Rights. Even the International Court
[14]

of Justice (ICJ) was repeatedly involved in the discussions, confirming the ranking of selfdetermination as a new norm of international law affording it also an erga
omnes character.15
But all these references, however important and visionary, fail to be precise in defining
the scope and application of the right, and taken outside their context become rather
misleading (especially if compared to how they translated in reality). The debate
surrounding the Colonial Declaration, for instance, was particularly important for creating
an intimate association between self-determination and decolonisation; similarly, the
Declaration of 1970 affirmed that in their seeking independence, trusts and non-selfgoverning territories had to respect national unity and territorial integrity of a country.
[15]

Even the ICJ contributed to reinforcing the link: in 1971, the Court suggested that the

principle was applicable to all [] non-self-governing territories, and later in 1975 reendorsed this limited interpretation. All these elements, in sum, contributed to the
[16]

crystallization of the principle into a western-European decolonisation rule apparently

opposing secession in general. The interpretation functioned to prevent every dissatisfied
minority group from disrupting states territorial integrity.

[17]

For instance, UN resolutions concerning self-determination in East Timor which

resulted in the birth of the independent state of Timor-Leste in 2002 continued to focus
on the link that the territory had with the former colonial power (Portugal), the
administering [p]ower, rather than the actual occupier, Indonesia. Indeed, if East Timor
[18]

had to gain independence from Indonesia, it would have been a new form of
decolonisation one that Russia or China, Permanent 5 (P-5) members with veto power
over the UN, would have hardly endorsed. Their own disputes with minorities from
Chechnya, Tibet, or Xinjiang were powerful reasons to endorse Timorese independence,
only when a clear differentiation between the case and their domestic ones was made.

[19]

Nevertheless, Western Sahara shows how difficult it may be to assert the right to selfdetermination even in the context of traditional decolonisation. The ICJ considered the
territory occupied by Spain in the nineteenth century, judging in addition the Moroccan
and Mauritanian sovereignty claims to it insufficient (despite arising from some unclear
legal relations). In spite of this, the result of the decolonisation process was not that of
granting full independence to the Sahrawi Arab Democratic Republic (founded by the
Polisario liberation movement in 1976), but a deadlock stemming from failed tentatives to
either accomplish annexation by both Mauritania and Morocco or establish a
referendum. The actual conundrum is the result of contrasting interests at both
[20]

international and local levels: the international community, which supported the
implementation of the legal principle, proved to be not determined enough to overcome
the resistance of conflicting regional parties, and ultimately enforcement failed to
materialise.

[21]

Beyond Decolonisation? Human Rights and Remedial Secession

The aforementioned international instruments suggest that, in principle, selfdetermination extends beyond the colonial context at least in its internal form. This
remains true irrespective of the huge limitation on secession that the principle of territorial
integrity entails. A more controversial question is whether secession would be lawful in
circumstances where a state denies the internal form of the right to a people violating
their fundamental human rights.
The global context is assisting an evolution in conflict dynamics, shifting from being
primarily state-to-state towards being within states: self-determination, in large-scale
conflicts, has often been one of the main issues. In this particular environment, law and
justice have gradually become more converging, and the theory of remedial secession
began to gain ground. Secession as a remedial right fundamentally restricts the scope
of external self-determination to being a last resort measure for those groups that witness
serious, persistent injustices. Although existing at least since the writings of Grotius,
[22]

remedial secession was reaffirmed albeit with a twisted language in UNGA

Resolution 2625 (XXV) and in the 1993 Vienna Declaration; it is also partly supported by
judicial practice, and widely advocated by prominent authors.

[23]

The Kosovo case was a major turning point for the theory: after Kosovos unilateral
declaration of independence in 2008, the UNGA brought the issue before the Court
enquiring whether the tentative secession was in accordance with international
law.25 Even if the ICJ avoided elaborating specifically on the subject of remedial

secession, it was affirmed that international law does not preclude [Kosovos] declaration
of independence, indirectly raising Kosovos diplomatic standing. Indeed, remedial
[24]

secession was the main legal argument put forward by the states supporting the move
(led by the US and UK, among others). The real issue before the Court, though, should
[25]

have been the legality of international support to the unilateral declaration, rather than
that of UDIs (Unilateral Declaration of Independence) in general. Russia, which stated
not to disagree with the notion in principle (as an ultimum remedium), suggested that
after 1999 when international administration was enforced through UN Security Council
(UNSC) Resolution 1244 Kosovar-Albanians were no longer in extreme circumstances
that required their secession; it added that since 1999, Serbia has been granting the
Kosovar minority a good degree of autonomy under the Constitutional framework, and
has stopped threatening or using violence against them. It is evident that states practice
[26]

reflected whether or not national interests were at stake, since those that opposed
secession were often the same ones worried by secessionist movements at home (Spain
and Cyprus, inter alia).

[27]

An interesting spillover happened just few months later in the regions of South Ossetia
and Abkhazia, when a Georgian unwise military offensive in its autonomous regions
protected by Russian peacekeepers was carried out. The outcome was the expulsion of
Georgian forces, followed by Russian (and few more states) recognition of the two as
independent states. The declared intention of seeing Kosovo as a unique case,
[28]

apparently, was not powerful enough to prevent these peoples hopes from awakening.
The parallelism is particularly relevant, since both autonomous regions share some
common constitutional and historical grounds with Kosovo. Besides, it is evident that
Russia, to justify recognition, has undertaken the way of remedial secession theory
albeit stressing some supposed uniqueness that differentiate Abkhazia and South
Ossetia from Kosovo. Whether the inhabitants of these two regions were in more
[29]

extreme situations than those of Kosovo is at least controversial; what is less hard to say
is that even in this case,realpolitik finally had the upper hand.
Conclusions
There is a fragile balance between the principles of territorial integrity and selfdetermination, and careful considerations are needed before applying them to
international affairs. Dismissing self-determination in too simplistic terms as it was often
done before Kosovo, to preserve territorial integrity generated great and widespread
unfairness. In spite of its being a well-established norm of international law, self-

determination, outside the decolonisation context, has been largely sacrificed in favour of
territorial integrity; in addition, even within decolonisation, many of the existing borders
still do not consider ethnic or tribal realities (especially in Africa). State practice before the
2000s made external self-determination almost like a single, unrepeatable moment in
time.

[30]

On the one hand, that depended on an understandable fear of potential chaos that could
arise in the international system; on the other hand, it was due to diverging states
interests, which exploited the vagueness surrounding more basic concepts such as
statehood or peoples.
To best interpret different outcomes in cases of external self-determination (Western
Sahara vis--visTimor Leste, or Kosovo versus Abkhazia, for instance), it is necessary to
fully understand the interplay between international law and international politics. Political
considerations have often prevailed over precedent and principle, and as a consequence,
today self-determination remains a rather vague principle of international law, instead of a
more specific and precise rule. To successfully overcome the justice-interests divide, the
[31]

international community should be willing to undertake a more decisive shift towards

solidarist stances, which would in turn generate greater coherence in interpreting selfdetermination in its external form. Remedial secession theory provides the starting
ground for such a prospect. Nevertheless, as of today, it remains at least a long-term
objective.
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[1] OSCE (1975)

[2]Brilmayer (1991), p. 182

[3] Kohen (2006), p. 3; Crawford (2007), p. 375

[4] Rai, (2002), p. 303; Serbia (2009), p. 152
[5] Shaw (1996), pp. 97, 100-101
[6] Higgins (1994), pp. 119-20; Rai (2002), pp. 272-7
[7]ICCPR (1966), Art. 27; Shaw (2008), pp. 293-8
[8]For an overview, Crawford (2007), pp. 19-26
[9]Montevideo Convention (1933), Art.1
[10] Akehurst (1997), pp. 80-1
[11]UNC Art. 2(4); UNGAR 1514 (XV); Shaw (1996), pp. 86-7
[12] Cassese (1995), p. 128
[13] Shaw (2008) pp. 251-2; UNC Artt. 1(2), 55
[14]UNGAR 1514 (XV); ICCPR (1966), Art. 1(1); ICESCR (1966), Art. 1(1); UNGAR
2625 (XXV); UNGAR 48/121 15 ICJ (1971), p. 131; ICJ (1975), pp. 100-1; ICJ (2004), p.
7; ICJ (1995), p.16
[15] Shaw (2008), p. 253; UNGAR 2625 (XXV)
[16] Pomerance (1982), pp. 63-72; ICJ (1971), p. 31; Cassese (1995), p.71
[17] Mayall (1990), pp.50-7
[18]UNSCR 384; UNSCR 1262
[19] Maffei (1993), p. 230; Berdal (2007), pp. 195-6
[20] Jensen (2005), pp. 27-30
[21] Gardner (2000), pp. 132-4
[22] Buchanan (2004), pp. 217-9

[23] Grotius (1925), p. 261-2; Cassese (1995), p. 112, 118-9; VDPA (1993), par.2; SCC
(1998), par. 134-5, 138 25 UNGAR 63/3 (2008)
[24] ICJ (2010), p. 50
[25] ICJ (2010), p. 403; UK (2009), pp. 92-3
[26] Russia (2009), pp. 33, 37-9; Serbia (2006), Artt. 75-81
[27] Spain (2009), p. 56 ; Cyprus (2009), pp.39-41; Serbia (2009), pp. 208-15
[28] Mllerson (2009), pp.10-7
[29] Tancredi (2008), pp. 49-50
[30] Franck (1995), p. 154; Crawford (2007), p. 409
[31] Gardner (2000), pp. 118-121; Cassese (1995), p. 159-162

Written by: Michele Capelto

Written at: Kings College London
Written for: Dr. Natasha Kuhrt
Date written: February 2014
http://www.e-ir.info/2014/05/02/does-self-determination-entail-an-automatic-rightto-secession/

Memorandum by Professor John A Usher[105]

1. OVERALL ASSESSMENT
Whether or not the Lisbon Treaty will constitute a lasting settlement may be
considered in the context of three issues: its structure, its institutional provisions,
and its substantive scope.
So far as structure is concerned, while the Constitutional Treaty included all three
"pillars" of the EU in a single Treaty (though Euratom would have remained
separate), the Reform Treaty takes the form of amendments to the existing Treaties
(Euratom still remaining separate). However, the Reform Treaty will rename the EC
Treaty the "Treaty on the Functioning of the Union", the word "Community" will be
replaced by the word "Union", and the European Union will have a single legal
personality. While this effectively creates a single European Union, and to a large
extent the same institutional processes will apply in the current first pillar (EC) and
the current third pillar (police and judicial cooperation in criminal matterssubject to

transitional arrangements, and to special arrangements for the UK, Ireland and
Denmark), the current second pillar (Common Foreign and Security Policy) remains
subject to distinctive institutional procedures, and for the most part continues to
escape judicial review. This arrangement no doubt reflects the wishes of the current
members of the EU, but it does leave scope for further Treaty amendments at some
stage in the future.
However, while representation and voting rights may have been at the heart of the
discussion which led to the Amsterdam and Nice Treaties, it may be suggested that
the Reform Treaty does considerably reduce the need for future Treaty amendments
with regard to these issues, by removing specific numbers from the Treaty texts. So
far as qualified majority voting in the Council is concerned, once the transitional
arrangements expire there will no longer be weighted numerical votes; instead, a
qualified majority will be represented by 55% of the Council's members representing
65% of the EU's population. With regard to the Parliament and Commission, the
Treaty sets out the parameters governing their membership, leaving the detailed
decision to the European Council; other institutions (eg the ECJ and the Court of
Auditors) comprise one member from each Member State, or have memberships set
out in Statutes which can be amended without amending the Treaties (eg the CFI
and the ECB), and the composition of the Economic and Social Committee and of the
Committee of the Regions are to be determined by the Council. It may therefore be
concluded that the relevant Treaty provisions will no longer require frequent
amendment.
So far as the substantive scope of the Treaties is concerned, the Reform Treaty
largely represents a consolidation of the current position, ie the position reached
after the Treaties of Maastricht and Amsterdam. This in turn perhaps indicates that a
plateau has been reached, though it is highly unlikely that there will never be a
future issue which it is felt appropriate to deal with at Union level. However, the
revised texts of what are currently arts.94 and 308 of the EC Treaty will continue to
allow a considerable degree of flexibility even without Treaty amendments.
Overall therefore, it may be suggested that although the Reform Treaty should not
be regarded as set in stone, it should considerably reduce the need for frequent
Treaty amendments.
2. PEOPLE'S RIGHTS AND RESPONSIBILITIES
As under the Treaty establishing a Constitution for Europe, the Union will be given
express power to become a party to the European Convention on Human Rights,
although it may be suggested, as evidenced in the dispute between Spain and the UK
over voting rights in European Parliament elections in Gibraltar, that the ECJ already
recognises that obligations under the ECHR prevail over substantive EU law. On the
other hand, whereas the Treaty establishing a Constitution for Europe included the
text of the Charter of Fundamental Rights as part of the Treaty, the Reform Treaty
article on fundamental rights contains a reference to the Charter, declaring it to have
the same legal value as the Treaty, but not setting out its text. However, there is a
special Protocol on its justiciability in the UK and Poland, under which the Charter
does not extend the ability of the ECJ or of UK or Polish courts to find that UK and
Polish laws and practices are inconsistent with its terms. It is further declared that
nothing in Title IV of the Charter (entitles "Solidarity" and essentially concerned with
social rights) creates justiciable rights in the UK or Poland except insofar as provided
for in the national law of UK/Poland. Furthermore, references to national laws and
practices only apply to the extent that they are recognised in Polish or UK lawwhich

begs the question of what happens to national laws and practices which have evolved
into general principles of EU law and therefore already have to be observed by the
UK in the context of EU law.
3. POWERS AND NATIONAL SOVEREIGNTY
Despite the more fanciful comparisons with the United States when the Treaty
establishing a Constitution for Europe was negotiated, a fundamental difference from
the US (whose civil war not just about slavery but rather about whether States could
secede) is that the EC/EU has always allowed withdrawal (although the only example
is that of the territory of Greenland), and the Reform Treaty will introduce an express
provision enabling a Member State to withdraw from the Unioneven if other
Member States oppose it.
While the Treaty text will contain no express statement of the primacy of EU law,
there will be a declaration recalling the existing case-law of the European Court of
Justice on primacy. Indeed this case-law was well-known when the UK first became a
member of the then EEC, and it was reflected in the drafting of the European
Communities Act 1972.
With regard to "red lines", in part these have been protected by obtaining special
treatment for the UK. Indeed, far from being monolithic, the Reform Treaty not only
retains the existing opt-outs from EU policies and opt-ins to EU policies but it takes
the matter further: the Third Pillar provisions on police and judicial cooperation in
criminal matters will be moved to the same part of the Treaty on the Functioning of
the Union as the current title on asylum, immigration and visas, and will become
subject to the same "opt-in" arrangements for the UK and Irelandand indeed it is
envisaged the Denmark will be able to opt-in as well (currently the relevant
provisions are simply not binding on Denmark). However the relevant Protocol also
deals expressly with the consequences of this extension with regard to Third Pillar
legislation currently binding on eg the UK. It envisages both substantive and
institutional issues which might arise. Substantively, existing measures continue, but
if they are later amended, and the UK does not participate in the amendment, the
Council may determine that this non-participation makes application of the measure
inoperable for other MS, and the original measure will no longer be binding on or
applicable in the UK. So far as institutional issues are concerned, the relevant
Protocol to the Reform Treaty envisages a 5 year transition during which the existing
3rd pillar rules apply (ie a limited role for the Commission, and references to the ECJ
only if the Member State concerned allows them). However, if a former 3rd pillar
measure is amended during that period, the new rules apply (ie the normal
institutional rules)though the UK would only be affected if it opted-in to the
amended measure. Six months before the end of the transitional period, UK may
give notice that it does not accept normal powers of institutions with regard to "old"
acts still binding on it. The result of this is that those acts will cease to apply to UK
from the end of the transitional periodand Council (without the participation of the
UK) will determine the consequences, including financial ones. Since the Third Pillar
measures currently binding on the UK include matters such as the European Arrest
Warrant, the consequences could be serious.
Other methods of protecting "red lines" involve ensuring the continuation of a
requirement of unanimity in the Council, or simply ensuring that the treaty does not
extend the EU's powers, as in the case of taxation. However, it may be suggested
that the failure eg to give the EU any express power to legislate in the area of direct
taxation has a downside. In a series of recent cases, the ECJ has found that

discriminatory national rules on direct taxation may breach the Treaty "freedoms",
notably freedom of establishment, freedom to provide services and free movement
of capital, and such rules may also conflict with the provisions governing citizenship
of the Union. Thus a Member Sate may be required to give tax relief for pension
contributions paid in another Member State, or to give credit for tax paid on
dividends in another Member State, or to give tax relief for losses made in another
Member State, and it may be suggested that the situation has now been reached
where it would be sensible to agree some basic rules at Union level. However, the
Treaty gives the Union no competence in this area, other than through a broad
interpretation of what is currently art 94 of the EC Treaty, allowing approximation of
such laws as affect the functioning of the common market (to be referred to as the
internal market under the Reform Treaty).
4. OUR NATIONS AND REGIONS
As someone who spent a total of 14 years working in Scotland, I had several
discussions with SNP politicians as to whether Scotland would automatically remain a
member of the EU if it became independent. Without getting involved in the niceties
of State succession, a simple answer used to be that a new Treaty would have to be
negotiated to deal with issues eg of representation and voting rights. However, it was
suggested in the first section of this Evidence that the Reform Treaty considerably
reduces the need for future Treaty amendments with regard to these issues, by
removing specific numbers from the Treaty texts. To that extent, the Reform Treaty
may be said to strengthen the arguments in favour of Scotland automatically
remaining a member of the EU if it were to become independent.
5. OUR NATIONAL PARLIAMENT
In many respects the Reform Treaty, following the pattern set in the Constitutional
Treaty, provides greater opportunities for national parliaments to play an active role
in the EU context. They are given a formalized role in the context of subsidiarity,
being empowered to ensure compliance with the principle of subsidiarity. in
accordance with the procedure set out in the revised text of the Protocol on
Subsidiarity and Proportionality. The Reform Treaty amends this Protocol, which was
originally introduced by the Treaty of Amsterdam, so as to require the Commission to
forward its draft legislative acts and its amended drafts to national Parliaments at the
same time as to the Union legislator. It also requires the European Parliament to
forward its draft legislative acts and its amended drafts to national Parliaments, and
it states that the Council must forward draft legislative acts originating from a group
of Member States, the Court of Justice, the European Central Bank or the European
Investment Bank (and amended drafts) to national Parliaments. Furthermore, upon
adoption, legislative resolutions of the European Parliament and positions of the
Council must be forwarded by them to national Parliaments. It will however be for
each national Parliament or each chamber of a national Parliament to consult, where
appropriate, regional parliaments with legislative powers.
Under art 6 of the Protocol, any national Parliament or any chamber of a national
Parliament may, within eight weeks from the date of transmission of a draft
legislative act, send to the Presidents of the European Parliament, the Council and
the Commission a reasoned opinion stating why it considers that the draft in question
does not comply with the principle of subsidiarity. The European Parliament, the
Council and the Commission, and, where appropriate, the group of Member States,
or other EU institutions and bodies if the draft legislative act originates from them,

are then required "take account" of the reasoned opinions issued by national
Parliaments or by a chamber of a national Parliament.
It is further provided in art 7 that where reasoned opinions on a draft European
legislative act's non-compliance with the principle of subsidiarity represent at least
one third of all the votes allocated to the national Parliaments, "the draft must be
reviewed". In calculating such a vote, each national Parliament would have two
votes, shared out on the basis of the national Parliamentary system. In the case of a
bicameral Parliamentary system, each of the two chambers would have one vote.
This threshold would be a reduced to a quarter of the allocated votes in the case of
a draft legislative act submitted on the basis of art 68 of the Treaty on the
functioning of the Union on the area of freedom, security and justice. After carrying
out such a review, the Commission or, where appropriate, the group of Member
States, the European Parliament, the Court of Justice, the European Central Bank or
the European Investment Bank, if the draft legislative act originates from them, may
decide to maintain, amend or withdraw the draft, but reasons must be given for this
decision.
National Parliaments are also given a right of action. before the European Court. Art
8 declares that the Court of Justice of the European Union shall have jurisdiction in
actions on grounds of infringement of the principle of subsidiarity by a legislative act,
brought in accordance with the rules laid down in art 230 of the Treaty on the
Functioning of the Union (which governs actions for annulment) by Member States,
or notified by them in accordance with their legal order on behalf of their national
Parliament or a chamber of it.
The national parliaments are also expressly involved in the revised text of the
current art 308 of the EC Treaty. It provides that if action by the Union should prove
necessary, within the framework of the policies defined in the Treaties, to attain one
of the objectives set in the Treaties, and the Treaties have not provided the
necessary powers, the Council of Ministers, acting unanimously on a proposal from
the European Commission and after obtaining the consent of the European
Parliament, may adopt the appropriate measures. However, a new art 308(2) then
adds that using the procedure for monitoring the subsidiarity principle, the
Commission must draw Member States' national Parliaments' attention to proposals
based on this provision.
Similarly, the Protocol on the Role of National Parliaments., originally annexed to
the Treaty of Amsterdam, has been considerably reinforced. In the version annexed
to the Reform Treaty, not only must Commission consultation documents (green and
white papers and communications) be forwarded directly by the Commission to
national Parliaments upon publication, but the Commission must also forward the
annual legislative programme as well as any other instrument of legislative planning
or policy to national Parliaments, at the same time as to the European Parliament
and the Council. It would also be required that draft legislative acts sent to the
European Parliament and to the Council must be forwarded to national Parliaments;
"draft legislative acts" are defined as proposals from the Commission, initiatives from
a group of Member States, initiatives from the European Parliament, requests from
the Court of Justice, recommendations from the European Central Bank and requests
from the European Investment Bank for the adoption of a legislative act.
Art 3 of the Protocol then provides that National Parliaments may send to the
Presidents of the European Parliament, the Council and the Commission a reasoned

opinion on whether a draft European legislative act complies with the principle of
subsidiarity, in accordance with the procedure laid down in the Protocol on the
application of the principles of subsidiarity and proportionality mentioned above.
Expanding the timescale of the original text, art 4 would require that an eight week
period should elapse between a draft legislative act being made available to national
Parliaments in the official languages of the Union and the date when it is placed on a
provisional agenda for the Council for its adoption or for adoption of a position under
a legislative procedure. Exceptions would however be possible in cases of urgency,
the reasons for which would have to be stated in the act or position of the Council.
The Protocol would expressly lay down that save in urgent cases for which due
reasons have been given, no agreement may be reached on a draft legislative act
during those eight weeks. Furthermore, save in urgent cases for which due reasons
have been given, a ten day period would have to elapse between the placing of a
draft legislative act on the provisional agenda for the Council and the adoption of a
position. Under art 5, the agendas for and the outcome of meetings of the Council,
including the minutes of meetings where the Council was deliberating on draft
legislative acts, would have to be forwarded directly to national Parliaments, at the
same time as to Member States' governments.
There is however a direct link to what is termed the simplified revision procedure in
art 6 of the Protocol, which provides that when the European Council intends to
make use of the simplified revision procedure, national Parliaments must be informed
of the initiative of the European Council at least six months before any decision is
adopted. The simplified revision procedure would introduce a general power for the
European Council, acting unanimously, to adopt a decision allowing the Council to
move from acting by unanimity where it would still be required in a specific area to
qualified majority voting in that area, without amending the Treaty, though it would
still have to be approved by the Member States in accordance with their respective
constitutional requirements. However, any initiative taken by the European Council
on this basis must be notified to the national Parliaments of the Member States, and
if a national Parliament made known its opposition within six months of the date of
such notification, the European decision could not be adopted. It would only be in the
absence of opposition that the European Council could adopt the decision. It may be
observed that in this context no distinction is made between the parliament of eg
Germany and the parliament of eg Malta or Luxembourg.
Finally, arts 9 and 10 of the Protocol take inter-Parliamentary cooperation. beyond
the previous version. It is provided that the European Parliament and national
Parliaments shall together determine the organisation and promotion of effective and
regular interparliamentary cooperation within the Union. Furthermore, what is
renamed a "Conference of Parliamentary Committees for Union Affairs" may submit
any contribution it deems appropriate for the attention of the European Parliament,
the Council and the Commission. That conference may in addition promote the
exchange of information and best practice between national Parliaments and the
European Parliament, including their special committees. It may also organize
interparliamentary conferences on specific topics, in particular to debate matters of
common foreign and security policy, including common security and defence policy.
However, contributions from the conference would not bind national Parliaments and
would not prejudge their positions.
It may be suggested that these provisions considerably strengthen the position of
national Parliaments in the EU legislative process, provided national parliaments have
in place machinery to enable them to take advantage of these opportunities.

6. COURTS AND THE JUDICIARY

A notorious gap in the current system of judicial review under the EC Treaty is that
it is virtually impossible for non-privileged litigants directly to seek the annulment of
general legislation before the ECJ/CFI since the current art 230 of the EC Treaty
requires applicants to show that the act is of individual concern to them. The Reform
Treaty will alleviate this problem when applicants are challenging "regulatory" acts
(presumably meaning implementing or delegated legislation), though the problem
will remain with regard to acts adopted under a legislative procedure.
Two other jurisdictional issues will also be tackled. The first is that the requirement
under the current Title IV of the EC Treaty that references from national courts to the
ECJ for a preliminary ruling may only be made by courts of final appeal is abolished,
though this is of concern to the UK only in so far as it opts in to Title IV measures.
The second is that while references under the third pillar may currently only be made
if a Member State decides to allow its courts to make such references (and the UK
does not allow such references), they will in principle be subject to the normal rules
on references under the Reform Treatythough it must be said that although a UK
court may not itself make such a reference, the House of Lords in the Dabas.case
last year followed the case-law of the ECJ arising from references from other Member
States. Be that as it may, this change is subject to the special arrangements for the
UK discussed in section 4 of this Evidence: there will a 5 year transition during which
the existing 3rd pillar rules apply but if a former 3rd pillar measure is amended
during that period, the new rules apply (ie the normal institutional rules)though
the UK would only be affected if it opted-in to the amended measure. Six months
before the end of the transitional period, UK may give notice that it does not accept
normal powers of institutions with regard to "old" acts still binding on it. The result of
this is that those acts will cease to apply to UK from end of the transitional period.
In essence therefore, the Reform Treaty will remove certain anomalies in the
system of references, but these changes will be of relevance to the UK only to the
extent the UK opts-in to the relevant legislation.
February 2008

105 Professor of European Law and Head of the School of Law, University of
Exeter. Back

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/84/84we11.ht
m#note105
On March 6, 2014, the Parliament of Crimea adopted a Resolution No.1702-6/14 that provided for a secession
referendum to be held on March 16, 2014. Having been arranged at 10 days notice, the referendum was
characterised by acomplete lack of transparency regarding the composition of the lists of voters, the electoral
commissions as well as the absence of impartial international observers. Moreover, the initiative did not offer its

voters the status quo option by leaving only two possibilities: (1) to join the Russian Federation as a federal
subject or (2) to return to the 1992 Constitution of Crimea and be an integral part of Ukraine. However, the 1992
Constitution entitled Crimea to full sovereign powers in terms of establishing relations with other States, which
means that whatever the choice of the Crimeans would be, it would de facto break from Ukraine (for more details
see this previous post). It was reported that the choice to join Russia was supported by more than 96,7% of all
voters. In other words, in Crimea a unilateral secession took place. Subsequently, the region declared
independence and further asked the Kremlin to join Russia. Notably, the referedum results were recognised only
by several developing countries that have close ties with Russia.
A right to unilateral secession can be defined as a right of a minority-people to separate a part of the territory of
the parent State on the basis of that peoples right to self-determination. However, as it follows from the
Declaration on Principles of International Law, the Kosovo Advisory Opinion (International Court of Justice) and
the Quebec case (Supreme Court of Canada), in modern international law unilateral secession of sub-states is
neither prohibited nor allowed.
For instance, in the Kosovo Advisory Opinion, the ICJ evaded the question of whether the Kosovo population
could legitimately secede as a manifestation of their right to self-determination. In the Quebec case, the Supreme
Court of Canada adopted a conservative construction of external self-determination as a right that may be
exercised under limited conditions only. Thus, no precedent for a right to secede was established in judicial
practice. Though, exceptions to this neutrality may arise from the interplay of the principles of territorial integrity
and self-determination.
The principle of self-determination allows a people to choose its own political status and to determine its own form
of economic, cultural and social development. It is recognised in a number of fundamental international
instruments, such as the UN Charter, the Declaration on Principles of International Law, the Declaration on the
Granting of Independence to Colonial Countries and Peoples, the International Covenant on Civil and Political
Rights, the CSCE Helsinki Final Act, the African Charter of Human and Peoples Rights, the CSCE Charter of
Paris for a New Europe, and the Vienna Declaration and Programme of Action. Moreover, it was affirmed by the
International Court of Justice in the Namibia, Western Sahara and East Timorcases, where its erga
omnes character was confirmed. At the same time the abovementioned documents recognise the principle of
territorial integrity, which may be in contradiction with the principle of self-determination. For instance, paragraph 6
of the Declaration on the Granting of Independence to Colonial Countries and Peoples stipulates that any
attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is
incompatible with the purposes and principles of the Charter of the United Nations.
The complete implementation of the principle of self-determination undermines the principle of territorial integrity.
In other words, only legal secession would not undermine territorial integrity of the parent state.
There are several circumstances when secession may be regarded as legal: (1) it shall concern people in
territories that are subject to decolonization; (2) it shall be envisaged by the national legislation of the parent state
concerned; (3) the territory inhabited by a certain people should be occupied or annexed after 1945; (4) the
secessionists shall be a people; (5) their parent state shall flagrantly violate their human rights and (6) no other
effective remedies under national or international law may exist, if any of these conditions are met.[1]
In addition, special attention shall be brought to the paragraph 88 of the Written Statement by the Russia in
the Kosovo Advisory Proceedings before the ICJ where it was stated the following: [T]he Russian Federation is
of the view that [international law] may be construed as authorizing secession under certain conditions. However,
those conditions should be limited to truly extreme circumstances, such as an outright attack by the parent State,
threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle
the tension between the parent State and the ethnic community concerned within the framework of the existing
State.
Is the Crimean secession legal?
No. None of these circumstances are present in the case of Crimea.
First, Crimea is not subject to decolonisation. Under Article 134 of the Constitution of Ukraine The
Autonomous Republic of Crimea is an integral part of Ukraine and all issues delegated to its authority are
resolved within its framework of reference as determined by the Constitution of Ukraine.

Second, secession is not envisaged by the Constitution of Ukraine as a parent state. Generally, all political
systems insist on legality of secession only through constitutional means. For instance, the Supreme Court of
Canada in the Quebec case held that any attempt to effect the secession of a province from Canada must be
undertaken pursuant to the Constitution of Canada. The Supreme Court of Alaska in the Kohlhaas v Alaska case
(2006) found that a referendum on secession would be unconstitutional. The Ukrainian legislation is no
exception. Article 73 of the Constitution stipulates that any alterations to the territory of Ukraine shall be resolved
exclusively by the All-Ukrainian referendum, not by the local one.
Third, the territory of Crimea was not occupied or annexed after 1945.
Fourth, the secessionists (i.e. Russian population of the Crimea) may not be regarded as a people. As it
follows from the Quebec case a people shall be governed as part of a colonial empire, be subject to alien
subjugation, domination or exploitation, be denied any meaningful exercise of its right to self-determination
within the state of which it forms a part. And in all other circumstances, peoples are expected to achieve selfdetermination within the framework of their existing state.
And finally, there is no evidence that the rights of the Russian population in Crimea have ever been subject
to flagrant human rights violations from the government of Ukraine. The OSCE High Commissioner on
National Minorities found no evidence of violations or threats to the rights of Russian speakers during her visit to
Kyiv and Crimea. Thus, all claims that the Russian speaking population of Crimea were facing oppression and
violence are, at the very least, groundless.
Jus cogens nexus
International law cannot be neutral regarding the unilateral secession of Crimea as the declaration of
independence of Crimea was effected through the Russian military assistance. This argument is supported by the
ICJ in the Kosovo Advisory Opinion. In particular, in paragraph 81 the following is stipulated: The illegality
attached to [some other] declarations of independence stemmed not from the unilateral character of these
declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of
force or other egregious violations of norms of general international law, in particular those of a peremptory
character (jus cogens). In other words, a unilateral declaration of independence will be recognized as illegal
where a violation of jus cogens principles took place. Here, an unlawful secession in violation of jus
cogens occured as Russia violated jus cogens principle of non-use of force under Article 2(4) of the UN Charter.
And where a declaration of independence is adopted in such manner, foreign states are under obligation
to withhold or withdraw recognition.[2]
Despite the fact that modern international law is neutral regarding the unilateral secession of sub-states, the
neutrality is not a question in the case of Crimea, as its unilateral secession was effected through
Russian military assistance. And, hence, the position of the international community of states should be more
tough to stop the aggressor.
[1]Quebec case, 2 S.C.R. 217, para.123 (1998); Aaland Islands case, L.N.O.J. Spec. Supp. No.3 (1920); Pellet
A., Ellet A., The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of
Peoples, 3 EJIL 178.
[2]Articles 40 and 41 of ILC Articles on State Responsibility.

http://cjicl.org.uk/2014/04/20/international-law-legality-secession-crimea/

The first time I visited Italy's quaint town of Bolzano I thought I had landed
by accident on the other side of the Alps across the Austrian border, in
Innsbruck.
And not just because of the medieval pointed arches, frescoed wooden
chalets and strudel-scented air. People here speak in German and have a

hard time replying in Italian. When they do, their strong Teutonic accent
takes you aback.
They're Italian citizens but simply don't feel Italian. Bolzano's local
authorities estimate that German is spoken by 75% of the 510,000
inhabitants of the Alto Adige region. Locals, however, call it by its original
name South Tyrol and many wish it were independent.
Eva Klotz is a co-founder of the separatist party Sd-Tiroler Freiheit (South
Tyrolean Freedom). She carries a yellow card in her wallet that says
"German is my mother tongue".
Klotz says: "There are acts of racism each single day. Despite Italian and
German both being official languages, I often bump into police officers who
don't know German. They point at the Italian flag stitched on their uniform
and require I speak Italian simply because we're in Italy. They don't even
know that I have the right to speak in my mother tongue so I show them this
card. It drives me mad. I call this linguistic imperialism."
Klotz, who wears long Tyrolese braids and dresses in traditional costume,
recently launched a survey for a referendum on South Tyrol's right to selfdetermination. "It was a huge success: 90% of the 61,000 voters are in
favour. In the future this could either translate into full independence from
Italy or re-annexation to Austria," she says.
"My dream is to reunite with Austria. I'm an Italian citizen but don't belong
to the Italian culture, state nor language. I have a Tyrolese identity. In my
cultural backpack there's Schiller."
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Klotz says there is a glorification of fascism in the region. "This year over
2bn have been allocated to fund the restyle of fascist architecture and
symbols in Bolzano. It's a disgrace."
A sculpture of Mussolini on horseback welcomes visitors at the entrance of
the local Palace of Justice. Thirty-five miles south of Bolzano, in the town of
Trento, a statue of Dante the father of Italian language holds his hand
up against the Austro-Germanic domination.

South Tyrol lies at the feet of the Dolomites and was once part of the wider
Austro-Hungarian empire. It was annexed by Italy in 1918 yet despite
Mussolini's attempt to "Italianise" the area by forbidding German and
pushing through Italian vocabulary and culture, locals have fought for their
freedom even through terrorist attacks.
Here, Italian speakers are a minority. Citizens' ID cards are different from
the rest of Italy's as they are green and written in Italian and German. The
local flag is red and white with an imperial Austrian-style eagle in the
middle. Epiphany Day a traditional Italian Christmas festivity when
children's stockings are filled with sweets and toys celebrates the coming
of the three wise men and not of the Befana witch on her broomstick.
"There's always been a serious identity issue," says Marco Brunazzo from
the department of sociology and social research at Trento University.
"Schools are divided according to mother tongue so kids grow up in
separate worlds. This has led to integration problems among the different
communities."
Valentino Liberto, head of Bolzano's Green Youth Movement, says:
"Teenagers tend to hang out with school friends from their own ethnic
group. Even sports clubs and squads are divided according to linguistic
belonging."
But not everyone in South Tyrol wants to be independent. Liberto talks
about his own feelings of identity: "I feel neither 'only' Italian or 'only'
German but a little bit of both. I feel South Tyrolese. Luckily and differently
from other people my age, I have both German and Italian friends and we
like to go clubbing all together."
Many parents in the region make their children do the so-called "linguistic
slalom", German middle school then Italian high school so they get to learn
both languages.
The distribution of public jobs is based on a strict quota system that takes
into account ethnic belonging according to the census. This means that if a
school hires an Italian-speaking teacher, the next hire must be a Germanspeaker.

Green party councillor Brigitte Foppa says: "At the beginning this was
meant to protect the German minority, but now having reached a balance
it's quite out of date and there's a backlash. Italians feel penalised today.
The two linguistic groups have grown apart and there's a lack of reciprocal
understanding that leads to prejudices."
Foppa comes from what she calls a "mixed" family. "I had an Italian
upbringing and my husband is from Florence. My kids, on the other hand,
feel they belong to neither linguistic group."
Bolzano has Italy's highest GDP per capita, according to figures from Italy's
National Statistics Office. Locals move around on bikes even when it rains
and are proud of showing-off to the world tzi the Iceman, a mummy found
in the glaciers close to Austria.
"Bolzano's just one of the many cases in Italy of language and identity
clashes in border cities,"Brunazzo says. "Europe's state-building has been
continuous over the last centuries but if borders can easily be changed
identity cannot".
http://www.theguardian.com/education/2014/may/30/south-tyrol-live-in-italy-feelaustrian

CASE BACKGROUND
1. Abstract : Elements of ethnic and environmental conflict have
been present in the northern Italian Province of South Tyrol since
Roman times. The area holds an extremely important north/south
alpine passage and is at the intersection of many different
cultures and languages. The Brenner Pass remains an important
commercial route, and the surrounding area of South Tyrol is
renowned amongst outdoor sports enthusiasts and international
tourists alike. Mild ethnic conflict existed between resident
mountain populations for centuries, but the principle clash of
cultures came during and after WWII when the local Germanspeaking population was inundated with Italian-speakers during
Mussolini's relocation program created to Italianize the north.
2. Description:

History:
Co-governance is encapsulated in the one region, two province
system that exists today in South Tyrol. The Province (Sud Tyrol in
German and Alto-Adige in Italian) is generally German-speaking,
while the Trentino to the south is Italian-speaking. The two
provinces are also under the umbrella regional governance of
The Region of Trentino/Sud Tyrol (Trentino/Alto-Adige in Italian). In
the past, violence has erupted in the Region, mainly in the
Province of South Tyrol , over the rights of the German ethnic
minority and the willingness of some to return to the ancient
borders of Tyrol . These political borders encompassed the
Austrian area of Innsbruck and the Italian area of Bolzano , which
even today some say would provide a more ethnically suitable
governance.
The general cultural environment within the Province of South
Tyrol has been in a constant state of flux throughout history. The
Germanization of the resident population was carried out during
the reign of the Hapsburg Empire and consisted of the
enculturation of diverse populations in various valleys throughout
the southern Alps. In the 1930's, after making a pact with Hitler,
Benito Mussolini mandated the mass relocation of southern
Italians into South Tyrol . Those residents who declared
themselves of German heritage were forced to relocate into the
area of the Third Reich and the Italianization the Province began.
German-speaking churches and schools were closed and laws
were passed banning the use of the language or any outward
expression of the former German culture.
Years of State suppression brought German activists boiling to
center of South Tyrolean society with acts of terror committed
against public and private targets in the 1960s. The negotiation
that followed these actions ultimately resulted in the passage of
equal rights laws for the German-speaking minority and the
special jurisdiction of Autonomous Province of South Tyrol within
an Autonomous Region of Italy. Many argue that from this point
forward, the special status of the German-speaking population
within Italy has caused an unbalanced distribution of funds from
the central government of Italy . In some sense, it seems to be
another cycle of the Germanization of South Tyrol .
Modern-day:

The population of South Tyrol is 464,530, with 63 inhabitants per

square kilometer (Office of Statistics for the Province of Bolzano,
2002). Most of the population lies in the central metropolitan area
of Bolazano and in the low-laying valleys of the mountainous
Province. The German-speaking majority makes up 70% of the
population, while Italian and Ladin-speaking residents make up
26% and 4% of the population respectively (South Tyrol Census,
2001)
The majority of South Tyroleans work in the service sector which
employs 68% of the population. The Secondary Sector', which
consists of industry workers and artisans, makes up 28% of the
labor force, while only 4% of employment in South Tyrol is in the
Third Sector' which is defined as agriculture and forestry. This
final statistic is somewhat surprising given the strong apple
industry in the Province. South Tyrol is the largest producer of
apples in Europe and annually provides 12% of the continental
production (EURES, 2002).
One explanation of this phenomenon might be the large number
of workers that come from outside the European Community every
season. In 2001, 6,000 seasonal workers were employed for the
cultivation and processing of apples. Within the public sphere,
however, the labor environment is controlled by affirmative action
based on resident populations. Of every 20 jobs provided within
the public sector, 14 will go to German-speakers, 5 will go to
Italian-speakers, and 1 will go to a Ladin-speaker (South Tyrol
Census, 2001).
Some view these actions as reverse discrimination in a Province
where the government controls many lucrative sectors within the
territory, including major tourism projects and hydroelectric power
centers. Others view these affirmative action labor plans, and aid
from the central Italian government, as not enough. Separatist
parties also exist in South Tyrol . The Union Fur Sudtirol'and the
Freiheitlichen ' (Freiheitlichen, 2004) have recently been in the
news for their no-Italian-language' stance in German primary
schools (Union for South Tyrol, 2004).
The European Union has provided great opportunities for
populations to reach outside State boarders to create relationships
with other communities free of national control. Enculturation of
communities within Europe will continue in the future and minority
populations in some cases will have the chance to assert their

culture and rights within a majority population. In some cases

minorities will become majorities and in the case of South Tyrol,
Italy, the Italians seem to again be the minority.
Environment: The rich resources of South Tyrol contribute to its
affluent condition within the State of Italy. The area, nestled in the
Italian Alps, is peppered with world-class ski resorts and some of
the most impressive scenery in this part of Europe. There is a
strong agricultural sector exporting apples and grapes amongst
other fruits, while the artisan culture of wine and cheese is also
vibrant. Tourism is a principle revenue source and the industry is
motored by all ethnicities in the Province. Finally, the Brenner Pass
is the deepest valley in the Alps and therefore has been an
important passageway since Roman times. The historic
importance of the area is further illustrated by the debate
surrounding the recent discovery of Otzi the Iceman . The Pass
begins in Trentino and cuts principally through South Tyrol ending
in Austria . Currently the Italian state controls the majority of the
passageway but if a state based on the borders of ancient Tyrol
were to be constructed, the Pass would no longer be under Italian
jurisdiction.
Click to hear local's view
Click to see English translation
There are several committees that exist within the European
Union created to address ethnic conflict issues. The Committee of
the Regions is a prominent force within the EU and Trentino/South
Tyrol is a vocal part of the membership. Growth of the EU and its
respective committees may dilute the issues of ethnic conflict but
also provides a venue for ethnic minorities to strengthen their
cause at the continental level. The development of the EU may
suggest an alternative organization to the one region, two
province system that would better address the needs of diverse
ethnicities and the environment in which they live.
3. Duration: Ongoing
4. Location: Europe; Southern Europe; Italy
5. Actors: Various Ethnic Groups; Italian, German, Ladin

II. Environment Aspects

6. Type of Problem: Civil

7. Environmental Attributes: Cool
8. Cultural/Political Background: The DeGasperi-Gruber
Agreement of 1946 lead to the creation of the Autonomous Region
of Trentino-South Tyrol. The agreement facilitated measures to
protect and maintain the economic and cultural characteristics of
both provinces, including reinstating German as a language of
instruction in public schools. The year before the Agreement , the
Sudtiroler Volkspartei -SVP (the people's party of South Tyrol ) was
formed to advocate re-incorporation of South Tyrol into Austria
and later became a voice for the minority populations of the
province. Minority should be understood in the national sense
rather than the provincial sense given the German-speaking
population is in fact a majority in South Tyrol . Ladin-speakers can
be seen as a minority in both senses. Despite the separatist
tendencies of the SVP, the party was recognized by the Allies as
the political representative of the German-speaking population of
South Tyrol .
South Tyrol is governed by Regional councils as well as a Provincial
Assembly. The dominant party within the Assembly represents the
German-speaking population but the president alternates twice
each term between an Italian-speaking representative and a
German-speaking representative. The Assembly also chooses two
vice-presidents for the Provincial Government, one from each of
the two dominant linguistic groups. Each of the three linguistic
groups is given representation in the Assembly roughly based on
ethnic presence in the Province(see Table 1).

Ethnic Representation in the Provincial Assembly in

1998
Linguistic Group

Seats

% of Votes

German

25

71.43

Italian

27.65

Ladin

2.86

Total

35

100.00

Table 1 - source: Official website of the Autonomous Province of South Tyrol

The 1972 Statute of Provincial Autonomy identifies the official

languages of the Province and regulates their use in public
institutions (d.P.R. 31 August 1972 , No. 670). With this statute
German does not replace the former official language of Italian but
rather, German is on a par with Italian and both are official
languages. Official documents are published in German and Italian
and instruction in public schools is in both languages. Though
students are not obligated to attend a public school with
instruction primarily in their native tongue, most do. The question
arises about presence of these virtually monolinguistic scholastic
environments and whether they promote integration. The goal of
using mother-tongue instruction is meant to preserve the unique
cultural and linguistic heritage of diverse ethnic groups within an
atmosphere of integration, yet families continue to self-segregate
into familiar ethnic environs.
Each year a census is conducted and citizens are asked to identify
themselves based on ethnic/linguistic heritage (see Table 2). This
data is then processed to allocate public sector employment,
funds for public instruction, and political representation. In the last
century there has been a visible wave in ethnic identification
between those who identify themselves as Italian and those who
identify themselves as German-origin. German self-identifiers
remain the largest group throughout. A large decrease in the
German-speaking population can be seen between 1921 and
1961, and a gradual increase from the decade of the 1970s
onward.

% Ethnic Identification 1900-1991

Year

Italian

German Ladin

1900

4.1

91.7

4.1

1910

93

1921

11.7

84

4.3

1961

34.3

62.3

3.4

1971

33.3

63

3.7

1981

29.4

66.4

4.2

1991

27.7

68

4.3

Table 2 - source: ASTAT: Statistical Services, Autonomous Province of Bolzano

III. Conflict Aspects

9. Type of Conflict: Ethnic

Employment Data: Unemployment in South Tyrol in 2002 was at a
relatively low rate of 2.2%. The majority of employment is in the
service sector where 109,355 of 160,255 (68.2%) workers were
employed (Europaregion of Tirol-Sudtirol/Alto Adige-Trentino,
2004). Employment in agricultural sector is higher than the

European average and in 2002, 6,430 (4%) of the workforce was

positioned in this sector.
Employment in the public sphere is regulated by census results
and is allocated according to the ethnic identification of census
respondents (see Table 3). The 2001 repartition of public positions
shows the growth in German representation from the above ethnic
identification chart. In 2001, 27 out of every 100 public positions
available were allocated to Italians, 69 to Germans, and 4 to
Ladins. Though the increase is slight, when paired with the
increasing ethnic identification of German-origin in the Province,
an upward trend can be seen.

Allocation of Public Positions in 2001

Public
Positions

Italian

German

Ladin

10

100

27

69

1000

265

691

44

Table 3 - source: 2001 Census of South Tyrol , Italy

Tourism Data: In 2003, 2,744,652 visitors arrived in South Tryol .

Despite the national identity of the Province, the majority of these
visitors were German-speaking (see Figure 1). Geographic position
and optimum tourist facilities could explain the draw these people
have to the area. The zone is easily accessible from Austria and
Switzerland and tourism is centered on mountain culture that is
more similar to its Germanic neighbors than to its Italian conationals. Sustained tourism from German speaking countries
most likely serves to enforce strong ethnic identity of the German
population in South Tyrol and more research is yet to be done to

illustrate the effects of this tourism on local ethnic divisions. The

following chart illustrates the strong presence of German over
Italian speaking tourists in the Province.

Figure 1 - source: Summer 2003 Statistical Data for Tourism; Province of South Tyrol

10. Level of Conflict: Low

11. Fatality Level of Dispute: Minor fatalities in the 1960's.

IV. Environment-Conflict Overlap:

12. Environment-Conflict Link and Dynamics

13. Level of Strategic Interest: Region

14. Outcome of Dispute: Stalemate

V.Related Information and Sources

15. Related ICE and TED Cases :

Iceman http://www.american.edu/TED/iceman.htm
Honduras/El Salvador Border Study
http://www.american.edu/TED/soccer.htm
Ethnic Conflict in Sri
Lanka http://www.american.edu/TED/ice/lanka-conflict.htm
Sahara Dispute- http://www.american.edu/ted/ice/sahara.htm
Ethnic Conflict in Kalimantan
- http://www.american.edu/ted/ice/kaliman.htm

16. Sources, Relevant Websites and Literature:

European Job Portal: http://europa.eu.int/eures/index.jsp
European Academy: http://www.eurac.edu
Euroregion of Tyrol/South
Tyrol/Trentino http://www.europaregion.info
Freiheitlichen Official Site: http://www.die-freiheitlichen.com/
Pledgepeace: http://www.pledgepeace.org
Primitaly: http://www.primitaly.it/trentino
Official Site of the Province of Bolzano: http://www.provinz.bz.it
Province of Bolzano Office of
Statistics: http://www.provincia.bz.it/astat
Region of Trentino/South Tyrol: http://www.regione.taa.it

Sudtiroler Landtag: http://www.landtag-bz.org

Union for South Tyrol Official Website: http://www.unionfs.com/
Doob, Leonard W. South Tyrol : An Introduction to the
Psychological Syndrome of Nationalism'Public Opinion Quarterly ,
Vol. 26, No. 2. (Summer, 1962), pp. 172-184.

Secession
A movement of concerned people
(derived from the Latin term secessio) is the act of withdrawing from an
organization, union, or especially a political entity. Threats of secession also can
be a strategy for achieving more limited goals. (From Wikipedia)

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Lisbon Treaty
A reminder about the power of the EU to keep its member states in. Note especially that
"the withdrawing Member State shall not participate in the discussions of the European
Council or Council or in decisions concerning it."
Comments (1)

Article 50
1. Any Member State may decide to withdraw from the Union in accordance with its own
constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its
intention. In the light of the guidelines provided by the European Council, the Union shall
negotiate and conclude an agreement with that State, setting out the arrangements for
its withdrawal, taking account of the framework for its future relationship with the Union.
That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the
Functioning of the European Union. It shall be concluded on behalf of the Union by the
Council, acting by a qualified majority, after obtaining the consent of the European
Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into
force of the withdrawal agreement or, failing that, two years after the notification referred
to in paragraph 2, unless the European Council, in agreement with the Member State
concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the
Council representing the withdrawing Member State shall not participate in the
discussions of the European Council or Council or in decisions concerning it. A qualified
majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the
Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be
subject to the procedure referred to in Article 49.
Comments (5)

Title I
Remember, when reading Title I, that "The Union" has exclusive competence in many
major areas of policy eg:

the customs union

the economic and monetary policy of the EU, including sharing a single currency,
the euro
competition laws
a common position in international trade negotiations such as the WTO trade
rounds, as part of a common international trade policy
conservation of marine biological resources (part of the common fisheries policy
between EU states)
the concluding of some international agreements.
Comments (34)

CATEGORIES AND AREAS OF UNION

COMPETENCE
1. When the Treaties confer on the Union exclusive competence in a specific area, only
the Union may legislate and adopt legally binding acts, the Member States being able to
do so themselves only if so empowered by the Union or for the implementation of Union
acts.
Comments (42)

http://secession.org.uk
Secessionist movements and Euroscepticism: are they a problem for the European Union?

The result of the recent Scottish referendum on independence, one hand averted the risk of
destabilization of the equilibrium, on the other hand also raised the issue of the spread of political parties
and independence movements within the European Union.
Following the failed attempt of Scotland, Catalonia also can not pursue the road of independence. The
Catalan referendum, which was to be held on November 9, has been blocked by the High Court, which
upheld the appeal filed by the government in Madrid, temporarily suspending the referendum, waiting for
the judgment within five months. A decision motivated by doubts of the referendum is unconstitutional
because it infringes the principle of indissoluble unity of Spain, enshrined in the Constitution. According
to The Premier Mariano Rajoy words, the referendum attentive to the rights of all the Spaniards.
All over the European Union territory, however, there are many parties that affirmed the recognition of
the right of peoples to self-determination, as enshrined in international law.
This right is a Golden Rule (ius cogens) of international law and establishes the right of a people
subjected to foreign domination to gain its independence, joining in another state or at least to be able to
independently choose their own political system.
The European Nations that are facing this problem are:

Spain: the breakaway regions are Catalonia, Aragon, the Canary Islands, the Basque Country
and Galicia.

Great Britain: the independence movements are present in Scotland, but also in Cornwall, Wales
and Northern Ireland.

France: fears separatists in Corsica, Brittany and New Caledonia.

Belgium: There are separatists between French and Flemish

Slovakia: Hungarian minority claim to the wrongs suffered by the peace treaties after the First
World War.

Romania: has to face the presence of the Hungarian minority, the most important in terms of
numbers.

Italy: the major claims of independence came from the Northern League and the independence
movements of Sicily and Sardinia.

Another problem that the European Union is facing is the advancing consensus of Eurosceptic parties.
The phenomenon is revealed by the results of the last European elections. The theory Eurosceptic,
although not recently codified, today, has been established and widespread in a capillary way, within all
member States of the European Union.
A cause can be identified in the climate of economic crisis and the difficulties that Europe is experiencing.
This situation comports the increase of the critical elements, of the people discontent and, as a direct
consequence, of the utterances of this malaise.
The opposition of the Eurosceptic parties primarily concerned the following issues: the process of
European integration, the adoption of the euro as a unique currency and also the immigration policies.
According to the Eurosceptic, in fact, the process of European political integration directly strikes the
essence of the concept of the sovereign state. These arguments are shared and supported by the political
parties and nationalist movements, which-from always-manifest reluctance to accept the loss of state
sovereignty, the basis for the Union creation.
Another problem concerns the excessive bureaucracy of the European Union within the European
institutions. It would be wrong to slow down, hinder and at times-block European initiatives.
Even within the Eurosceptic parties, however, there are discrepancies. Some, in fact, would like their
state to come out by the European Union, while others aim to eliminate the European Union itself.

We analyse the main political parties and movements Eurosceptic (grouped by country):
-

Austria:

The Austrian Freedom Party (in German, invoking sterreichs, FP) was founded in 1956, and it is
nationalist and populist party. The party, led by Heinz-Christian Strache, on the one hand, emphasizes
the necessity of creation of new labour policies (especially in favour of the workers) and, on the other
hand, pursues an anti-immigration policy, accompanied by a campaign against the Roma population.
-

Belgium:

The New Flemish Alliance (Nieuw-Vlaamse Alliantie in Belgium, N-VA) is a Flemish centre-right party,
founded in 2001 led by Bart De Wever. NVA claims the independence of Flanders, one of the three
regions that make up Belgium. It also proposes some kind of federalism and economic proposals relating
to the management of the EU budget. Among the Eurosceptic parties, the New Flemish Alliance is the

party who had the most moderate program: it supports the Euro, the single market, a common defence
and foreign policy at Community level.
-

France:

The Front National (National Front in French): a right-wing nationalist movement founded in 1972 by
Jean-Marie Le Pen and led today by his daughter Marine Le Pen, who is President. Among the proposals
in its programs it wants the return to national currencies, the implementation of protectionist policies,
the abolition of the Schengen Treaty (the system of free movement -in EU territory- of citizens of States
that have signed the agreement). The FN has a strong opposition about the Roma population presence.
-

Germany:

The Alternative for Germany (German Alternative fr Deutschland, AfD) is a conservative party founded
in 2013 by Bernd Lucke, an economist and professor of macroeconomics at the University of Hamburg.
Lucke immediately proposed to hold a referendum to approve the transfer of sovereignty from the
member states of the European Union, Germanys exit from the Euro and the creation of monetary
unions or alternative boundary parallel to the current one. Lucke has also spoken about energy policy,
criticizing the willingness of Chancellor Angela Merkel want to shut down by 2020, all nuclear power
plants operating in the country, arguing that such a choice could lead to an increase in energy prices.
-

Greece:

Golden Dawn, the far-right nationalist party, has campaigned hard Eurosceptic, more than any other
party in Europe. Much of the policy proposals of the movement (who denies being a neo-Nazi despite
having many connotations) focus on the issue of immigration and the will to get out of the Euro. In
recent years, the political action of the Golden Dawn was organized mainly through a series of protests,
succeeding in some cases to influence (albeit indirectly) the governments choices: non-EU nationals
residing in Greece cannot vote (nor were able to nominate) in the European elections, even if they were
born and raised in the country, according to an amendment approved by Parliament election Greek.
1.

Italy:
Lega Nord (LN), founded in 1995 by Umberto Bossi. LN is against the bureaucratization of the EU

and European integration. It also would be Italys exit from the euro as a unique currency and different
(and more restrictive) immigration policies.
2.

Movimento 5 Stelle (M5S), founded by former comedian Beppe Grillo, supports the need for Italy
to exit from the Eurozone and a return to national currencies.
-

1.

The Netherlands
The Party for Freedom (Dutch Partij voor de Vrijheid, PVV): founded in 2004 by Geert Wilders,

who is still the leader. It is a right-wing party, the populist anti-European orientation. PVV opposes
Turkish membership in the European Union. The biggest political success of the PVV was the rejection in
2005 of the referendum for the creation of a European Constitution. Geert Wilders wants the Netherlands

brought out by the European Union and the European institutions considered as a real bureaucratic
dictatorship. Geert Wilders is also known for its critical stance towards Islam and it was always very hard
towards the citizens of Moroccan origin who are in the Netherlands (not immigrants), and has always had
good relations with the governments of the state of Israel (an aspect that distinguishes it from the
positions of other Eurosceptic parties).
2.

The Socialist Party has always opposed to membership of the country to the EU.

3.

The Reformed Political Party, the oldest political party, Dutch, Calvinist orientation and
Eurosceptic.
In the Netherlands all the Eurosceptic parties have criticized the free trade agreement, proposed by the
United States, because it would jeopardize the production of local industries for the benefit of
multinational corporations.
-

United Kingdom

The UKIP was founded in 1993 by some members of the more conservative wing of the British
Conservative Party. Among its major policy proposals are the withdrawal of the Maastricht Treaty and the
withdrawal of the UK from the EU. The leader of UKIP Nigel Farage, after being severely criticized by the
other British parties, mainly as a result of a series of campaign posters as defined by many observers as
racist, tried to mediate some of its positions: confirmed its intention to restrict access to a number of
social benefits to about two million immigrants Community staying in the UK (mainly from the poorer EU
countries such as Romania and Bulgaria), but has ruled to want to expel from the country. In addition, in
the program of his party are asked to stop immigration for the next five years. The most discussed topic
was that of labour in the party program concessions are offered in the labour market for British citizens,
always at the expense of immigrants.

In any case, the Eurosceptic parties and movements have an impact on important political processes:
-

In 2005, the European Constitution was rejected in referenda held in France and the Netherlands

In 2008 another referendum in Ireland has rejected the European Treaty, which was to replace

the European Constitution.

A defeat for the Eurosceptic, however, came with just the second Irish referendum on the Lisbon Treaty
(held in 2009). At that 67.1% of Irish voters expressed for yes giving the final go-ahead for the
ratification of the Treaty.
http://www.comunitapmimediterraneo.org/news/secessionist-movements-and-euroscepticism-are-theya-problem-for-the-european-union/

Lisbon Treaty: Europes Slow-Moving Coup dtat

From the desk of Soeren Kern on Sat, 2009-10-10 14:43

Irish voters have overwhelmingly approved the European Unions controversial

Lisbon Treaty, a document that will forever change the dynamics of European
(and potentially global) politics. The yes vote comes less than 18 months after
Irish voters gave the wrong answer by rejecting the treaty in a first referendum.
According to the final results, 67.1 percent of Irish voters approved the treaty,
while 32.9 percent voted no. Turnout in the three-million electorate was 58
percent.
During the past year, the Irish government has faced intense pressure from an
irate European political establishment, which demanded a second referendum
that would produce the correct answer. Dublin achieved the desired result by
playing on public fears over Irelands faltering economy, which is expected to
contract by a shocking 10 percent this year. It also warned that Ireland would be
pushed out or left behind in Europe in the event of another no vote, a
disconcerting prospect for a country traumatized by the second-highest
unemployment rate in the EU.
Ireland, which accounts for 1 percent of the Unions 500 million population, was
the only one of the EUs 27 member states to put the Lisbon Treaty to a public
referendum. Twenty-four other EU countries quietly rubber-stamped the treaty in
their parliaments, which has proved to be a far less risky route than direct
democracy to get the document ratified. The leaders of Poland and the Czech
Republic, the only two remaining holdouts, will now be induced to ratify the treaty
as quickly as possible (the parliaments of both countries have already approved
the treaty) so that the grand European project can proceed apace.
The Lisbon Treaty, also known as the Reform Treaty, is nearly identical to
theEuropean Constitution, a document that was soundly rejected by French and
Dutch voters in 2005. Among many other innovations, the 250-plus page Lisbon
Treaty will establish a permanent EU president (Tony Blair?), a European foreign
minister and a European Union diplomatic service. The agreement also paves the
way for the covert creation of a European army by way of a mutual defense
clause called Permanent Structured Cooperation.

Moreover, the Lisbon Treaty obligates EU nations to surrender their sovereignty in

many areas to centralized decision-making; and it reduces national veto rights to
allow more decisions to be made by majority voting instead of by unanimous
consent.
The Lisbon Treaty is the stunning culmination of more than 50 years of European
economic and political integration, a process that has resulted in the systematic
erosion of democracy and democratic accountability in Europe.
The EU has its origins in the Treaty of Rome (1957), which gave birth to
theEuropean Economic Community (EEC). The EEC, also known as the Common
Market, was a customs union. EEC member countries agreed to dismantle all
tariff barriers over a 12-year transitional period, and over time a common tariff
was also established for all products coming in from third countries.
The Single European Act (1987) extended the scope of the EEC to include not
only the free circulation of goods, but also the free movement of persons, capital
and services. The Act established a genuine common market, but it also
codified European Political Cooperation, which was the forerunner of the
EUs Common Foreign and Security Policy (CFSP).
The fall of the Berlin Wall (1989) and the reunification of Germany (1990) led
French President Franois Mitterrand, who feared a return of German hegemony,
to search for a way to permanently anchor Germany within European institutions.
Together with German Chancellor Helmut Kohl, who was keen to relieve
misgivings in Paris and London about a reunified Germany, Mitterrand worked to
transform the whole of Europe into an all-encompassing union.
In 1989, an Intergovernmental Conference (IGC) established monetary and
economic union. In 1990, another IGC was called to study the constitution of a
political union. Then, in 1992, following three years of closed-door debate which
ignored public demands for more transparency, the Treaty of the European
Union (also known as the Treaty of Maastricht) came into being.
The Maastricht Treaty modified the Treaty of Rome and the Single European Act
by moving far beyond the limits of a common market toward political union. The
Maastricht Treaty also changed the official name of the EEC to the European
Union.
The Maastricht Treaty created three pillars, one of which enables joint actions in
foreign policy and military matters, and another one which enhances co-

operation in the fight against crime. The Maastricht Treaty also established a
European Central Bank (ECB), fixed exchange rates and introduced a single
currency called the euro.
In 1998, the Treaty of Amsterdam modified parts of the Maastricht Treaty, again
with no public participation. The main change introduced by the Amsterdam
Treaty was the creation of a new position called the High Representative for
Common Foreign and Security Policy. The treaty also provided the EU with a
common security policy, including the gradual formulation of a common defence
policy.
In 2001, the Treaty of Nice was designed (once again without public input) to
reform the institutional structure of the EU, with a view toward eastward
expansion.
Fast forward to 2009, and the stated aim of the Lisbon Treaty is to complete the
process started by the Treaty of Amsterdam and by the Treaty of Nice with a view
to enhancing the efficiency and democratic legitimacy of the Union and to
improving the coherence of its action.
Supporters of the Lisbon Treaty say its purpose is to cement European integration
by streamlining decision making. But in its essence, the Lisbon Treaty, which
has been called a slow motion coup dtat, is all about the centralization of
political power by an unelected ruling clique in Brussels who desire to rule Europe
free from the constraints of democracy.
The Lisbon Treaty also promotes European aspirations far beyond Europe, which
is why Americans should take notice. Indeed, European globalists hope the Lisbon
Treaty will transform the EU into a superpower capable of counter-balancing the
United States in global affairs.
European strategists have long been frustrated by Europes inability to speak
with one voice, a debilitating weakness that often neuters Europes economic and
political weight on the global stage, especially vis--vis the United States. The
Lisbon Treaty is designed to remedy this deficiency by imposing a European
president and foreign minister at the top of the European edifice.
More specifically, the Lisbon Treaty is meant to avoid a repeat of European
divisions in the lead up to the Iraq War, when France and Germany were
frustrated in their attempts to present a unified European front to block the
American invasion. At the time, a fair number of European countries broke ranks

with France and Germany and joined the United States in a coalition of the
willing, much to the anger of the Brussels elite.
By giving unelected EU bureaucrats jurisdiction over questions of war and peace,
the Lisbon Treaty will usurp the national prerogatives of its member states on the
use of military force. This will make it far more difficult for European allies to
support the United States in unpopular wars in the future.
The Lisbon Treaty will push the EU in a direction that should be deeply
disconcerting to Americans and Europeans alike. The Lisbon Treaty will make
Europe more centralized and far less democratic than it already is. For
transatlantic relations, this means that many foreign policy decisions that directly
affect the United States, ranging from economics and trade to transatlantic
cooperation on Islamic counter-terrorism, will increasingly be made by unelected
(and often pathologically anti-American) bureaucrats in Brussels rather than by
national governments.
The history of European integration is a textbook case in how a simple economic
treaty can be gradually transformed into an all-encompassing non-democratic
supranational federal leviathan. Indeed, the Lisbon Treaty should be a warning to
Americans who dream of remaking the United States in Europes image.
Soeren Kern is Senior Fellow for Transatlantic Relations at the MadridbasedGrupo de Estudios Estratgicos / Strategic Studies Group

EU analysis: Europe - Union of Regions, rather

than States?
petak, 28 mart 2014 03:10

Separatism in Europe: current and medium term

assessment
Vojvodina - European region
Author : eurasia_team | Monday, January 23, 2012
Posted in category Eurasia, Special Analysis
Comments Off
1. Overview

The separatist phenomenon and the corresponding autonomist and secessionist parties and movements in
Europe, as in the rest of the continents, is a result of long historic processes and, as such, they are a
constant challenge for the nation-state authorities, as well as for the supra-national ones (the European
Unions governing and legislative bodies).
According to recent statistics, Europe has more than 50 such separatist movements, including 18 in Italy
and nine in Spain. France has four irredentist movements, four secessionist movements, five autonomist
movements and several movements to change the borders of departments. There is one each in Poland,
the Netherlands, Romania and Switzerland. Parties in Greenland also want to secede from Denmark.
The adepts of separatism say that secession (i.e. political disintegration) is fully and always compatible with
economic integration. Even more, some of them sustain that secession must be seen as a last resort
solution to trigger economic integration and prosperity, since the reforms implemented so far had only very
modest results.
Some of the separatists and secessionist movements, mostly skeptical with regard to European integration
have proposed interesting new small-scale political arrangements. However, most of them are treated with
reluctance by the national states authorities and neglected by the media.
The separatist and secessionist phenomenon is not to be considered as marginal in Europe, where several
new states were created in the last 20 years (the Baltic republics secession from the former USSR, the
splitting of the Czech and Slovak republics, the 6 new states of former Yugoslavia and recently Kosovo) a
process that, by the way, did not stop the secessionist movements. According to some experts, in the
XXIth century we will see at least 10 new states in Europe.
On the other hand, the separatist, as well as the anti-secession ideas and slogans have a very high
emotional potential and, as such, they were and are permanently used in order to achieve other goals,
mostly connected to economic and political and trans-regional, even trans-national interests.
1.

2. Historic separatism in Western Europe

When examining the separatist phenomenon in Europe, one has to bear in mind the difference
between the Western European countries (with strong economies and powerful nation-states) and
the newer and less powerful economically Eastern countries (EU members and non-members alike).
In the first group, almost all of the founder states of the European Union had and still confront
strong separatist forces with a long historical tradition, but none of these is perceived as a threat
against the strong nation-state, mainly because at least so far the separatist forces are not
perceived by the people as having the economic resources to provide the same services as the
welfare nation-state.
2.1. The biggest challenge is considered to be in Spain, where the main provinces and regions, led
by Catalua and the Basque Country, are still promoting separation in spite of the high degree of
autonomy they already have.
Catalua is an autonomous province in the north-east of Spain with its own language and culture. The
province enjoys extensive autonomy in Spain, and relations with the central government in Madrid are being
regulated by a separate charter. In 2005, the new version of the charter said that the Catalans are a
separate nation. However, there are dozens of parties and public organizations in the region, mostly left-

wing, which are advocating cessation from Spain. Their goal is to hold a referendum on independence
until 2014.
The Basque Country, with almost 2 million people, has a higher living standard than average in
Spain, and great administrative and political local power, including the official status of the Basque
language. However, secession is one of the strongest desires of the population.
The Basque Separatist Movement wants to establish an independent socialist Basque state straddling
northern Spain and the southern end of Frances Atlantic coast. The Basques consider their culture distinct
from those of their neighbours and speak a language called Euskara, which is believed to predate the
arrival of the Indo-European languages to the continent. The Basque region, home to large fishing ports,
heavy industry and wealthy banks, has historically been one of the richest in Spain.
Francisco Franco was responsible for the growth of Basque separatism the Basques were not allowed to
publish books and newspapers; conduct instruction in euskara; give children Basque names or put out their
national flag. Euskadi Ta Askatasuna or ETA (Basque for Basque Homeland and Freedom) was set up
in 1959 as an anti-Franco party and evolved into a terrorist organization. Its attacks made more than 900
victims, in the name of the Basque independence.
Catalan and Basque nationalism are creations of the late 19th century. They stem from industrialisation,
which made these the richest regions in the country, taking in migrants from elsewhere in Spain. At the time
the Spanish state, unlike its French counterpart, lacked the resources to integrate the country, otherwise
Catalua and the Basque country would have been as content within Spain as Languedoc and Brittany are
within France.
2.1.1. In the 70ies, The Spanish constitutional and legislative bodies tried to strike a balance between the
central government and the claims of the historic provinces for home rule. The formula was known as
estado de las autonomas(a state formed of autonomies), or, in the popular terms, caf para
todos (coffee for all): Spain was divided into 17 autonomous communities (plus the enclave cities of
Ceuta and Melilla on the Moroccan coast), each with its own elected parliament and government. Over the
past 30 years more and more powers and money have been devolved. The regional governments are now
responsible for schools, universities, health, social services, culture, urban and rural development and, in
some places, policing. But it is becoming clear that even as it has solved some problems, decentralisation
has created others.
The estado de las autonomas has several clear benefits. First, it spread power and impeded its
concentration. Second, by bringing decisions about services closer to the people it has improved them.
Third, it encouraged competition between regions. And fourth, the system has reduced regional inequalities,
or at least stopped them widening. Currently, the south is still poorer than the north, but Spain no longer has
anything like Italys mezzogiorno.
All this has come at a political price. First, it has led to a renaissance of an old Spanish political
phenomenon, the caciqueor provincial political boss, who enjoy considerable local power, since the regional
governments are in most of the cases the biggest employers and the biggest advertisers in the local press.
Secondly, the decentralisation has not placated the politicians in Catalua, the Basque country and Galicia
who still want independence, no matter that Spain is now an extraordinarily decentralised country in which
the Basques, for example, enjoy a greater degree of home rule than any other region in Europe. Their
demands make it difficult to draw up a stable and permanent set of rules.

Moreover, language has become an obsession for the nationalists, even if the constitution made the
provincial languages official ones alongside Spanish in their respective territories. Despite these efforts,
Basque and Catalan are far from universally spoken in their respective territories: only around half of
Catalans habitually use Catalan and about 25% of Basques speak Euskera.
According to most of the Spanish analysts, the claims for independence are, in fact, more or less explicit
threats to gain more public money and powers. The polling evidence suggests that no more than a fifth of
Catalans are remotely tempted by the idea of independence. The figure for Basques is around a quarter,
despite 30 years of nationalist self-government and control of education and the media.
Buying off the Basque and Catalan nationalists with more money has become harder. The central
government accounts for just 18% of public spending; the regional governments spend 38%,
the ayuntamientos (municipal councils) 13% and the social-security system the rest. But under the new
Catalan autonomy statute more money has to be devolved. Over the next seven years Catalua will have to
be given a share of public investment equivalent to its weight in the Spanish economy, which will amount to
an extra 5 billion a year. As to the Basque countey, each Basque province and Navarre collect their own
taxes and hand over less than 10% to the central government in Madrid. But they benefit from centralgovernment defence spending, and they are net recipients from the social-security system. As a result,
public spending per person in the Basque country is the highest in Spain.
According to some analysts, it would have been easier if Spain had adopted federalism in 1978. That would
have set clear rules and aligned responsibilities for taxing and spending. The Senate could have become a
place where the regions were formally represented and could settle their differences, akin to Germanys
Bundesrat. But the Catalan and Basque nationalists will only accept a confederation of several nations. In
the meantime, as most agree, Spain must muddle on: The great Spanish project is not in danger, but its
like a plant that requires constant tending.
2.2. In Italy, the separatism of the northern movements is still influent, even if the Lega Nord recently
renounced to claim independence and separation of the poorer, agricultural south.
The Leagues new objective is Italys federalization and a strong autonomy of the northern industrial centers
from the Rome government. In the same area, another separatist movement in South Tirol (a region given
to Italy at the end of the Second World War) is asking to reunite with Austria.
As a consequence of Italys integration in the EMU in 1998, the Lega Nord shifted from a pro-European to a
Eurosceptic position. The Legas Eurosceptic vision combines a strong identification with Europe with a
hostile attitude towards the institutions of the EU. Identification with Europe expresses in the first place the
partys geopolitical view of Padania as a European and hence modern and entrepreneurial region. Its
critique of the EU incorporates numerous, sometimes contradicting influences such as the neo-liberal vision
of a free-trade based Europe with minimal rules and regulations, and a protectionist defence of northern
Italian economic interests. It is in particular the partys institutional vision that attributes centrality to the right
of Padania to autonomy and self-government which leads to its rejection of the centralism and dirigism of
the European Union. At the beginning of the 90ies, Padania gave itself a government, a Constitution, a
national anthem, a flag and even an armed force called The Padanian National Guard.
Lega Nord differs from the other regional separatist movements, since it claims rights not only for the North,
but for all the regions that would result from Italys splitting into a federation (the Lega is represented in most
of Italys regions and was also represented in the central governments after allying itself with the political
group Forza Italia led by Silvio Berlusconi).

2.3. The main separatist movements in France concern the island of Corsica, where separatism has a
historic tradition, with the Corsican National Union and the Movement for Self-Determination are the main
representative forces.
France has a long-standing experience of resisting separatism and extremism on its territory, above all in
the Mediterranean island of Corsica. The Corsican national groups clashed with the French army in the
middle 1970s. The Corsican Nationalist Union and the Movement for Self-Determination are the biggest and
most influential among these groups. Both have combat units. In the last 25 years, the islands status was
upgraded twice in 1982 and 1990 the local authorities were given increasingly broad powers in the
economy, agriculture, energy industry, transportation, education, and culture. Several years ago, French
parliament recognized the existence of the Corsican nation. This decision was later cancelled as
contradicting the Constitution of the French Republic.
The Breton Revolutionary Army (BRA) has operated in Bretagne, a north-western French province, since
the early 1970s. The descendants of the Celts, who once came from the British Isles, do not identify
themselves fully with the French, or consider themselves special among other French citizens. During
censuses, many of them call themselves Bretons although put French as their native tongue. The BRA
(apparently named by analogy with the Irish Republican Army IRA) belongs to the extremist wing of the
nationalist movement Emgann, which is fighting against the French oppressors.
French separatist movements have no significant success even among the local people, since everybody is
convinced that the regions would not survive without French businesses, money and infrastructure.
2.4. In Belgium, both ethnic components (the Flemish and Walloons) are strongly pressing for splitting into
two different states, such as they were during the history. According to recent polls, more than 60% of the
Flemish population and 49% of the Walloons are convinced that Belgium will split in the near future.
Great Britain, while still struggling with Northern Irelands century-old separatism, is also facing similar
centrifugal movement in Scotland and recently, even in Wales.
Greenland and the Feroe Islands are also pressing to split from Denmark, even if the government in
Copenhagen is investing large sums in the areas without even asking for a return of the money.
Even in Switzerland, in the last 30 years, the Jura Liberation Front has been militating for the splitting of
this Swiss canton.
3. Eastern Europe separatism: powered by economic and political changes
The second group is formed by the central and eastern European countries, where weak economies and
lack of democratic tradition as well as external interested forces led to stronger separatist forces and,
consequently, to the creation of new, smaller, state entities. This had not stopped, so far, the separatist
forces.
The separation of the Baltic states from the former Soviet Union was soon followed by the disintegration
of former Czechoslovakia and former Yugoslavia, where 2 (the Czech and Slovak republics) and 6 new
states (Slovenia, Croatia, Serbia, Bosnia-Herzegovina, Montenegro and Macedonia) were created.

3.1. The case of former Yugoslavia is an extreme example, since it is the only European entity where the
splitting process resulted in wars and needed the intervention of the international organizations (UN, NATO,
EU).
In this case, most analysts agree that the splitting which began, in fact, several years before the fall of the
communist regimes had as a main cause the historic lack of tolerance and pluralism, beside the economic
differences among the republics that formed Yugoslavia. This led to violent responses to economic
difficulties and political dissent and, finally, to ethnic conflict.
As Professor Mitja Zagar, specialist at the University of Ljubljana on international law and constitutions, as
well as on ethnic relations, stated[1]: In the long term, it is impossible to preserve a state through
oppression or promises alone. The mechanisms of the state must realize common interests. Unfortunately,
there was a total absence of constitutional tools for the prevention, management, and resolution of ethnic
conflict. What states and constitutions must do is provide the framework for common interest, the central
unifying force in all states, which will in the long term ensure the existence of the state. When this
disappears, even unitary states tend towards dismantling, or at least change. In the long term, repression or
other methods will not keep people together.
Most of the events during the splitting process represented logical (if violent and brutal) steps toward
coherent goals. The first part of the splitting process (1990-1995) can be divided into seven periods, each of
which followed its own characteristic pattern:
a) January to July, 1990: In this period, all the ethnic elements in the country began to explore new
possibilities, often contradictory. In the spring of 1990, Slovenes and Croats took concrete steps toward
setting up new forms of political power. In April, there were free elections in the two Northern provinces. In
this first period, the ability of the nationalities to pursue their own goals in the aftermath of the 1989
revolution led to a growing distance between the factions.
b) August 1990 to May 1991: In this period the contradictions between competing goals moved the
situation from tension to violence. The incompatibility between Serb and Slovene Croatian wishes became
clear, and led to violence outside of Kosovo for the first time.
c) May 1991 to February 1992: This was the period when true open warfare began, as the Serbs resisted
the Slovene and Croatian independence movements. In June 1991, both Slovenia and Croatia proclaimed
their independence. The Belgrade authorities adopted a different strategy for Slovenia and Croatia,
probably because there fewer Serbs in Slovenia than Croatia. Under a negotiated settlement, Belgrade
allowed the Slovenes to secede. In Croatia the war escalated instead. Two recurring patterns in Serbian
strategy can be seen here for the first time: the use of terror to drive away local populations (ethnic
cleansing), and a Serbian reliance on heavy weapons to attack urban areas.
During this same period, member states of the European Economic Community (led by Germany)
recognized Slovene and Croat independence. The world international community became involved for the
first time as well, with UN authorization for 14,000 peacekeepers and an economic embargo against the
rump of Yugoslavia: Serbia and Montenegro. By the end of the third period, most of the principal organized
forces in the civil war were present, including the UN, the Croats and the Serbs, while the Muslim
government of Bosnia was about to make its appearance.
In September 1991, Macedonia also declared independence, after a referendum on which 95.26% voted
for independence. Five hundred US soldiers were then deployed under the UN banner to monitor

Macedonias northern borders with the Republic of Serbia, Yugoslavia. However, given that Belgrades
authorities had neither intervened to prevent Macedonias departure, Macedonia became the only former
republic to gain sovereignty without resistance from the Belgrade-based Yugoslav authorities and Army.
d) March 1992 to December 1992: In this period the arena of open war shifted from Croatia to Bosnia,
where the province split along ethnic lines.
In early March 1992, a majority of Bosnians voted for independence in a plebiscite, but the voters split along
ethnic lines with many Serbs opposing such a step. This was the period in which ethnic cleansing became
general, including the extensive use of rape and the creation of concentration camps to hold Muslim men,
where many were murdered. The persistence of these reports led to escalating commitment by the UN,
culminating in pledges to use force and the enlistment of NATO forces as an instrument. By the end of the
fourth period, the Serbs of Bosnia had made notable gains in territory, and the issue became whether they
would keep them, in the face of Croatian, Muslim and UN opposition.
e) January 1993 to January 1994: During this year, all sides in Bosnia pursued a dual strategy, balancing
fighting with negotiations on the world stage to seek maximum advantage. This fifth period of stalemate was
the calm before the storm: the next two periods were unexpectedly volatile, given the apparent lack of
progress at this time.
f) February 1994 to June 1995: In March 1994, the Croatian and Muslim Bosnian governments agreed on
guidelines for a federated Bosnia. This freed both groups to face the Serbs: the Muslims in Bosnia, the
Croatians in Bosnia and in Krajina, which remained in revolt against the Zagreb government. Later in the
year, allied Muslim and Croat forces began small but significant joint operations against Bosnian Serb
areas. Generally, this sixth period discredited the UN, and the result was new initiatives both by the Serbs
and by their enemies in Croatia and at NATO. Out of public view, both sides prepared to take much more
active measures.
g) July to November 1995: The summer of 1995 saw the climax of the civil war in Bosnia, as both sides
explored their options after the UN had lost any authority to control events.
The rump of the former Communist Yugoslavia was re-named the Federal Republic of Yugoslavia by Serbia
and Montenegro on 28 April 1992. The Federal Republic of Yugoslavia was prevented by a UN resolution
on 22 September 1992 from continuing to occupy the United Nations seat as successor state to the
Socialist Federal Republic of Yugoslavia, and not re-admitted until 1 November 2000 after an application for
membership was submitted as a new country. The country was renamed a second time on 4 February 2003
as the State Union of Serbia and Montenegro.
The State Union of Serbia and Montenegro was itself unstable, and finally broke up during 2006 to
2008 as the last act in the disintegration of Yugoslavia. In a referendum held in Montenegro on 21 May 2006
independence was backed by 55.5% of voters, and independence was declared on 3 June 2006.
3.1.1. The splitting process went (and, according to some analysts, is still going) on at the level of the
former Serbian provinces of Kosovo and Vojvodina.
After the Dayton Agreement that ended the Bosnian War in 1995, the situation in Kosovo remained largely
unaddressed by the international community, and by 1996 the Kosovo Liberation Army (KLA), an ethnic
Albanian guerilla group, had prevailed over the non-violent resistance movement and had started offering
armed resistance to Serbian and Yugoslav security forces, resulting in early stages of the Kosovo War. By

1998, as the violence had worsened and displaced scores of Albanians, Western interest had increased.
The Serbian authorities were compelled to sign a ceasefire and partial retreat. However, the ceasefire did
not hold and fighting resumed in December 1998. After the Raak massacre in January 1999, a multilateral
international conference was convened and by March had prepared a draft agreement known as the
Rambouillet Accords, calling for restoration of Kosovos autonomy and deployment of NATO peacekeeping
forces. The Serbian party found the terms unacceptable and refused to sign the draft. Between 24 March
and 10 June 1999, NATO intervened by bombing Yugoslavia, in a military action that was not authorized by
the Security Council of the United Nations and was therefore contrary to the provisions of the United
Nations Charter. Combined with continued skirmishes between Albanian guerrillas and Yugoslav forces the
conflict resulted in a further massive displacement of population in Kosovo. Ultimately by June 1999, Serbia
agreed to a foreign military presence within Kosovo and withdrawal of his troops.
Since 1999, Kosovo was administered by the UN, whose Resolution 1244 provided that Kosovo would have
autonomy within the Federal Republic of Yugoslavia, and affirmed the territorial integrity of Yugoslavia,
which has been legally succeeded by the Republic of Serbia. In 2006, international negotiations began to
determine the final status of Kosovo, as envisaged under UN Security Council Resolution 1244. The UNbacked talks, led by UN Special Envoy Marti Ahtisaari, began in February 2006. Whilst progress was made
on technical matters, both parties remained diametrically opposed on the question of status itself.
In February 2007, Ahtisaari delivered a draft status settlement proposal to leaders in Belgrade and Pristina,
the basis for a draft UN Security Council Resolution which proposed supervised independence for the
province. A draft resolution, backed by the United States, the United Kingdom and other European
members of the Security Council, was presented and rewritten four times to try to accommodate Russian
concerns that such a resolution would undermine the principle of state sovereignty (Russia, which holds a
veto in the Security Council as one of five permanent members, had stated that it would not support any
resolution which was not acceptable to both Belgrade and Kosovo Albanians). After many weeks of
discussions at the UN, the United States, United Kingdom and other European members of the Security
Council formally discarded a draft resolution backing Ahtisaaris proposal on 20 July 2007, having failed to
secure Russian backing. The talks finally broke down late 2007, with the two sides remaining far apart, with
the minimum demands of each side being more than the other was willing to accept.
At the turn of 2008, the media started reporting that the Kosovo Albanians were determined to proclaim
independence. The declaration of independence was made by members of the Kosovo Assembly, on 17
February 2008. The terms of the declaration state that Kosovos independence is limited to the principles
outlined by the Ahtisaari plan. It prohibits Kosovo from joining any other country, provides for only a limited
military capability, states that Kosovo will be under international supervision and provides for the protection
of minority ethnic communities.
On 8 October 2008, the UN General Assembly resolved to request the International Court of Justice to
render an advisory opinion on the legality of Kosovos declaration of independence. The advisory opinion,
which is legally non-binding but is considered as carrying a moral weight, was rendered on 22 July 2010,
holding that Kosovos declaration of independence was not in violation of international law.
Kosovos declaration of independence is still controversial. A number of countries fear that it is a precedent,
affecting other contested territories in Europe and non-European parts of the former Soviet Union, such as
Abkhazia and South Ossetia. Kosovos independence also led to increased tensions in BosniaHerzegovina, where the Republika Srpska vetoed recognizing Kosovo, and threatened to declare
independence themselves.

As expected, the case of Kosovo is seen by most of the separatisms adepts as establishing a valuable
precedent for other people who wish to secede. Among others, Lszl Tks, an ethnic Hungarian who is a
member of the European Parliament for Romania, said Kosovo is a model for the Romanian region of
Transylvania and Igor Smirnov, the leader of Transnistria, a predominantly Russian separatist republic in
what is internationally recognized to be eastern Moldova, said For us, the Kosovo precedent is an
important factor.
For Russia and other governments, the international recognition of Kosovos independence is seen as a
dangerous precedent that will encourage separatism by violent means not only in Europe but also in the
Middle East and other areas.
As to the Vojvodina province, situated only 22 km far from Belgrade, the Magyar Alliance is controlling over
70% of its territory and asked for a referendum to secede and form a confederation with Hungary, even if
the ethnic Hungarian population does not exceed 40% of the total. In March 2009, the same party asked the
European Union to send in experts to examine the local situation.
There are various attempts to develop patterns/explanations for the splitting process in former Yugoslavia,
but, in spite of the separatists position regarding the precedent, most analysts agree that it is a unique case
and extrapolating the conclusions to other areas might be counterproductive.
4. The Lisbon Treaty and the Europe of Regions
In the case of the European Unions member states, the Lisbon Treaty (December 2009) is apparently
offering a solution to the various separatist claims, since it contains several innovations regarding the role of
Europes regions and cities, as well as the competences of the Committee of the Regions (CoR), such as:

The recognition of the EUs territorial dimension

For the first time in its history, the European Union explicitly recognizes territorial cohesion as a
fundamental objective in addition to economic and social cohesion. For instance, Article 3 of the modified
Treaty on European Union states that the EU shall promote economic, social and territorial cohesion, and
solidarity among Member States. This explicit recognition of the Unions territorial dimension is a huge step
forward for the Committees efforts to mainstream this concept in all EU policies.

Important references to regional and local self-government

Another important change is that, for the first time ever, the local and regional right of self-government is
enshrined in an EU treaty, as Article 4(2) of the Treaty on European Union states: The Union shall respect
the equality of Member States before the Treaties as well as their national identities, inherent in their
fundamental structures, political and constitutional,inclusive of regional and local self-government.

Regional parliaments with legislative powers

In the same sense, the Lisbon Treaty identifies regional parliaments with legislative powers as new actors in
the EU decision making process: they will be involved in the so called subsidiarity monitoring procedure.
***

In spite of the above-mentioned aspects, most of the analysts agree that the Lisbon Treaty, which is, in fact,
a constitution of the European Union, seeks to increase the power of the supra-national authorities
over both the national and the regional ones.
The Treaty is fundamentally changing the nature of the Union, since it will have its own government, its own
legislative, executive and judicial branches, its own president and the European citizenship will prevail over
the national one. The Union already has its own currency, flag, hymn and celebrating day and is going to
have its own human rights and criminal legislation (with a prosecutor general), foreign and security policy
(with foreign minister and ambassadors, even intelligence services).
However, analysts point out several differences that make them skeptical about the future European
Federation (if any):
Most of the known federal states (USA, Germany, Canada, Australia) were created in time, by
transferring the power from small states to a higher federal authority, but the European Union got its powers
much quicker;
In the classic federations, people spoke the same language and had the same history, culture and
national solidarity, with a democratic base that gave legitimacy to the higher authorities. On the contrary,
there is no European people, and the Lisbon Treaty is regarded as an attempt to create, from top to
bottom, a highly centralized federation without informing and obtaining the consent of the governed ones.
The minimal constitutional request for a democratic European federation would be that its laws be
generated and approved by the elected representatives of the people, in the Union and/or national
parliaments, but neither the Lisbon Treaty nor the Unions constitution mention such a request.
5. The impact of the economic crisis
The world economic crisis makes it more difficult for the EU to tackle many of these challenges. European
governments will find it harder to address the structural weaknesses of their economies in a period of
recession. They also risk devoting less attention to noneconomic challenges. The single market could even
come under threat support for greater state intervention is growing. If member-states start to support their
economies at the expense of others, the benefits of the single market could be rolled back.
The concept of Europe advanced in such a context assumes that nation-states will continue to play a major
part in the economic and social life of Europe. The nation-state is still seen as the most effective guarantee
of the civil rights, welfare and social cohesion. Europe shows no signs of effectively replacing the nationstate in that role, especially in the case of economically powerful states.
In the case of the states that do not have the economic force to cope with their crisis, their impossibility to
pay the sovereign debt will constrain them to give up their sovereignty to the supra-national entities that
may help them financially (the IMF-World Bank, but mainly the EU government).
The recent evolutions in Greece are seen by some analysts as a pattern of what may happen to other EU
member states if they come to be in the same situation.
The European Union regulations already give to the European government (the EU Commission) over-state
attributions in the fiscal and budget areas. The member states have to report their budgets to the EU before
voting in their own parliaments, some of the taxes will have to be paid directly to the EU authorities etc.

Recently, Jorgo Chatzimarkakis, member of the European Parliament (he is a German of Greek
origin) announced that the EU Commission is considering a proposal to manage directly the regional funds
allocated for Greece, Bulgaria and Romania, since these countries governments are incapable to do that
(because of the incapability of the ministries to come with projects, to work on programs and to solve the
problems locally). We need to use the technical assistance to cope with the problems in these three
states. Hahn (n.n Johannes Hahn, the European commissioner for regional policy) has hundreds of millions
of Euros in his portfolio for technical assistance. This means he can send experts from the European Bank
of Investments, from the EC, from other countries, to these countries, to help the administration to
implement programs and absorb the money.
Jorgo Chatzimarkakis also said that, in his opinion, the fears of loosing sovereignty in such a
situation would have to be controlled, especially if the assistance is linked to the creation of EU
anti-corruption committees. The politicians in Greece, Bulgaria and Romania should admit that
they have a problem he said.
However, he was skeptical about the chances that such assistance might be approved, because it
would create a precedent. In his opinion, in the case of Greece a majority might be obtained, and
that would make things easier in the case of Bulgaria and Romania.
Some scenarios take also into account the possibility that the EU might favor more authoritarian national
regimes that might be able to enforce the anti-social policies by invoking EU budget constraints that result
in fewer services provided by the state.
Such a scenario stronger EU control and national-state enforcement would lead to an increased trend
towards secession and smaller political entities, considered by some as the only means left in order to
trigger economic integration (with free exchange of goods and services, as well as cultural, economic and
political competition) and prosperity, in the context of the globalization.
The recent decision of the European Parliament regarding the new Constitution of Hungary is a very clear
indication of the real intentions of the European Union with regard to the separatist phenomenon and the
actor-states or other powers that might see useful to encourage separatism in order to develop other
greater nation-states or other entities.
The EP document, adopted on July 5, clearly asks the Hungarian authorities to explicitly guarantee in the
Constitution, including its preamble, that Hungary will respect the territorial integrity of other countries when
seeking the support of ethnic Hungarians living abroad.
6. Specifics of Romania and regional splitting scenarios
Romanias situation does not differ significantly from the other countries in the area. It has to deal with an
ethnic Hungarian secessionist movement, but most of all with the economic difficulties and the very poor
performance in absorbing the European funds that may represent the solution for its development issues.
The main secessionist movement is the Hungarian Citizens Union, which formed in 2004, pushing for
closer relations with Hungary and autonomy for Szkely Land, a region in eastern Transylvania home to
about 700,000 Hungarians. The territory is the cultural heartland for Romanias Magyars; in some towns,
more than 90 percent of residents speak Hungarian. Szkely Land was once an autonomous region,
between 1952 and 1968, and parts of Transylvania belonged to Hungary until 1920.

However, it is worth mentioning that the secessionist phenomenon (not only Romanias but also that of the
Eastern Europe region) is used by EU and NATO adversaries (mainly Russia) to stress their point of view
that the enlargement of NATO and the EU failed to deliver on the promises of European stability and did not
prevent the rise of ethnic separatism across Europe.
Since the European structural funding for development projects is destined for NUTS 2 administrative
units (Nomenclature of Units for Territorial Statistics level 2, with 800.000 3 million population), the
economic conditions most of all the need to co-finance the development projects would require the
gathering of a bigger number of taxpayers, who will benefit sooner of the finished projects. The European
Union favors the concentration of the investment efforts, and the prioritization of the infrastructure networks
would lead to local disputes. To spread the money in smaller areas would seem more equitable, but it
increases the costs and delays the terms of completion of the projects. This is the main argument for the
current government in pushing with a territorial reform. In the governments view and according to the
NUTS classification, Romania would have 8 NUTS 2 regions, with 2 of them that may qualify for NUTS 1
(over 3 million people) North-East and South, which, incidentally, do not cover the territories, claimed
by the secessionist Hungarian movements.
In fact, the European Union was quite clear in stating, through regional commissioner Johannes Hahn, that
Romania should implement the regional programs approved for 2007 2013 in the framework of the
territorial and administrative structures in which the programs have been developed and agreed with the
European Commission. Only after 2013, the European Commission will be ready to support the Romanian
authorities efforts for a better administrative and territorial structure.
The resurrection of the separatist movements in Europe, especially in the central and eastern part, as well
as the steps taken, through the Lisbon Treaty and other European Union regulations, towards Europes
federalization fuelled the splitting scenarios that stress the idea that Central and Eastern Europe states
are subject of a federalization experiment.
According to one such scenario, the nation-states Europe is already gone, and the final goal is to have
a European federation of land-type units, since it is easier to control smaller territorial and people
units that to harmonize the positions of several big strong states. The experiment has already begun
in Eastern Europe, being opposed only by Poland.
In the case of Romania, Hungary, Bulgaria, Serbia, Slovakia and the other countries, the following regions
would be created:

The so-called Biharia will cover a territory from the river Somes and the Western Carpathians
(Romania) to the Tisza (Hungary), with Oradea (Nagyvarad) as a capital.

The Banat would include the Romanian region and parts of Serbia and Hungary the capital
would be Timisoara.

Vojvodina will become an autonomous region, to include also a part of the Hungarian
territory.

Dobrudja wouls also include part of Bulgaria, to the South, and part of Ukraine (to the north, the
area between the Danube and Reni, after a supposed disintegration of Ukraine and its inclusion in the
European Union). Its capital will be Constanta.

Bucovina (the current Suceava county of Romania) would have a trans-border cooperation with
the area of former Galitzia and, after Ukraines disintegration, will join Galitzia and a part of Poland in a
province with Lwow (Lviv, Lemberg) as capital.

Maramures will extend, by a similar procedure, to include the northern Carpathian territories
currently in Ukraine and Hungary, and its capital will become again Sziget.

Bessarabia (Republic of Moldova) would also become a European Federation province.

7. Foreseeable trends
Such scenarios as, on the other hand, the separatist movements are received with a relatively low
interest by the local population, mainly interested in the economic situation and the benefits for everybodys
life that might come from a stronger Europe, with or without nation-states.
In fact, most of the analysts agree that the global economic crisis will create some difficult times for the EU
over the years ahead. It will put strains on the internal market and the euro zone. It also risks diverting
attention away from Europes pressing noneconomic long-term challenges. The single market will be the
area most affected by the economic crisis. The pace of reforms is likely to slow down in certain areas, in
particular progress towards liberalizing services. Instead of deepening the single market, for the next few
years the EU is likely to have to focus its attention on preserving the gains made so far. And once the worst
of the economic crisis is past, the EU should redeploy its efforts to deepen the single market.
Europe in 2020 can be a prosperous and secure area. It also has the potential to serve as a model for
others in how to develop sustainable economic growth. But the EU will only be able to ensure its long-term
wellbeing if it finds the political will to introduce the necessary reforms, including those that might be
inspired by the experience of managing the secessionist and separatist movements.
http://www.slobodnavojvodina.org/index.php?option=com_content&view=article&id=1825:eu-analysiseurope-union-of-regions-rather-than-states&catid=49:english&Itemid=62

Towards a plausible EU response to

breakaway regions
08.01.13 @ 09:52
RELATED

1.

Catalonia to play bigger role in Spanish EU affairs

2.

Independent Scotland would not join euro, minister says

1.

BY NIKOS CHRYSOLORAS
BRUSSELS - Despite claims to the contrary, the EU is essentially a union of nation states, and

it will remain such until there is a radical overhaul of the acquis communautaire, which, at
present at least, is not foreseen.
There is no better proof for this assertion than the fact that, even after its "upgrade" in the
Lisbon Treaty, the European Parliament - the only institution directly elected by the peoples
of Europe - is also the weakest of them all.
When the financial and sovereign debt crises posed an existential threat to the EU, the
decision-making process immediately shifted from community institutions to national
representations.
Greeks, for example, know only too well that it is the Eurogroup, and the EU Council (and not
the European Commission), which will ultimately decide whether to pull the plug from the
bailout mechanism and force their country out of the single currency.
But when the integrity of its nation states comes under threat, the EU cannot keep a safe
distance from the events unfolding in Flanders, Catalonia, or Scotland, much as some of its
stakeholders would like to do so.
The recent resurgence of secessionist movements, in the aftermath of the crisis, will pose
multiple challenges for Brussels.
Firstly, European regions aspiring to independence have already started to ask disturbing
questions, implicitly for the moment, but soon also explicitly: will Scotland have to re-apply for
EU membership if its people vote in favor of independence in the 2014 referendum? Will
Catalans be deprived of their current European citizenship if they choose to secede from
Spain? How will the EU react if one of its members asks for security assistance because it
faces a "national security threat" in the form of an independence movement?
Conventional legal wisdom says that if a new state pops up into existence in Europe, then it
will have to go through the whole accession process and secure unanimous approval by all
existing members of the Union before being accepted into the club.
According to the Lisbon Treaty, European citizenship is complementary to national
citizenship of a member-state.

But one should not rush to the conclusion that in this way the problem is solved or
underestimate the complexities of an unprecedented legal and political event, in which the
possibility of violent upheaval cannot be excluded.
History - especially in eastern Europe - has shown that secessions work in domino effect.
Even if the EU could politically and legally handle an isolated secessionist incident (say,
Scotland), an potential knowck-on effect of similar demands in the Basque country,
Catalonia, South Tyrol, Flanders, Alsatians and Corsicans in France, Poles in Lithuania,
Frisians in the Netherlands and Muslims in north-eastern Greece would destabilise the Union
as a whole.
Even today, the very fear of secessionist movements influences the conduct of EU policy.
For example, five out of the 27 EU countries - Cyprus, Greece, Romania, Slovakia and Spain
refuse to recognise Kosovo - in case it would embolden separatist movements on their home
territories.
The situation is especially complicated in Cyprus, the only EU member state which,
according to the UN, is partly under foreign (Turkish) occupation.
EU approval for secession by any given region in Europe would be seen by Cypriot
authorities as a green light for a de jure partition of the island.
Even in less complicated cases, such as the UK, a positive EU approach to Scottish
independence would place further strain on London-Brussels relations.
So how should the EU respond?
Above all, by keeping its cool.
Secessionist movements are not irreversible. For example, opinion polls show that in
Scotland a clear majority is set to vote for the country to remain part of the UK.
In Spain, the polls say Catalans want a referendum but they are divided on whether they will
vote for or against independence.
Nationalists in Flanders appear willing to settle for a confederation rather than a full break-up,
while the conundrum of who would get Brussels is difficult enough to help hold Belgium
together.
The EU should adopt a clear position on the legal status of the breakaway regions - people
aspiring to independence are entitled to make informed decisions.
Feeling in Scotland and Catalonia demonstrates that the probability of being expelled from
the EU is a strong deterrent to secession.

EU nation states should do more to reduce of income discrepancies between regions.

In most cases of secessionist movements, the major argument is that their people are sick of
"subsidising" either their central government or poorer regions. The more effective use of EU
structural funds in order to help poorer regions to catch up could be a matter of survival for
some member states.
It is now almost certain that a Treaty revision process will start immediately after the 2014 EU
elections.
So far, doomsday scenarios about a eurozone or an EU break-up have proven dead wrong.
The crisis has sped up the European unification process in almost every respect - fiscal,
financial, political. As the EU moves towards even more integration, its regions should also
be given a stronger role in decision making.
The case of Germany - the most successful federal state in the EU - illustrates that strong
regional governance and federalism are not incompatible.
On the contrary, regional self-rule in Germany gives democratic legitimatacy to the federal
structure.
Nikos Chrysoloras is a Brussels-based EU correspondent for Kathimerini, Greeces leading
newspaper, and a research fellow at the Hellenic Foundation for European and Foreign
Policy (ELIAMEP)
http://euobserver.com/opinion/118655
http://www.brusselsjournal.com/node/4118

Regions and territories with special status in Europe

Council of Europe
Chamber of Regions
25th SESSION
29-31 October 2013
CPR(25)2PROV
4 October 2013

Regions and territories with special status in Europe

Governance Committee
Rapporteur: Bruno MARZIANO, Italy (R, SOC)1
Draft resolution (for vote) 2
Draft recommendation (for vote) 3
Explanatory memorandum 4
Summary
Regions with special status exist in several member states of the Council of Europe. Such regions enjoy
more numerous and stronger guaranteed legislative, administrative and financial powers. They are
established with a view to responding to particular needs of certain territories due to, inter alia, their history,
geographical position, culture or linguistic characteristics, without challenging the overall state structure.
This report, based on a comparative analysis of special status regimes across Europe, demonstrates, in
particular, that the principles of regional democracy are more firmly guaranteed in special status regions.
DRAFT RESOLUTION2
1. A number of Council of Europe member states have granted special status to specific regions as a
means of addressing the specific identities and the common wish of their populations to have a greater say
in the management of their own affairs.
2. The Congress study of the functioning of such regions 3 shows that they often have stronger and more
effective regional democracy and can provide a model for other states to follow, providing that certain
conditions are met, such as properly defined competences and well defined relations and working
arrangements with the central authorities.
3. The persistence of regional conflicts within some member states suggests that there is further scope for
the provision of specific constitutional arrangements for regions with strong identities. The Congress
believes that special regional autonomy status can be an effective counterbalance to secessionist
tendencies and that the peaceful and prosperous development of the European space will depend on
making greater progress in internal conflict resolution. This will require the political will to pursue peaceful
political dialogue to identify and negotiate suitable legal and constitutional solutions and develop
satisfactory models of decentralised democratic governance for the regions concerned.
4. Therefore the Congress resolves to:
a. work with the Committee of Ministers and the Venice Commission to identify indicators and
characteristics of successful regions with special status and to develop effective models of such status;
b. examine the attribution of legislative powers to specific regions as a factor in successful regional
development ;
c. assess the functioning of existing special region status arrangements in its country monitoring of the
implementation of the European Charter of Local Self-Government;

d. pay particular attention in the framework of this monitoring, in its political dialogue with the central
governments of countries with internal regional problems, tensions or conflicts, to the potential of the
special status model for achieving a negotiated settlement in those conflicts;
e. continue to give the democratic institutions of such regions representation in its Chamber of Regions;
f. regularly discuss developments and exchange good practice on this subject, in particular in its Chamber
of Regions.
DRAFT RECOMMENDATION4
The Congress of Local and Regional Authorities of the Council of Europe,
1. Recognising:
a. that Europes unique character and strength lies in its diversity;
b. the huge progress the continent has made in developing a large variety of constitutional and political
systems to accommodate this diversity;
c. that Europe has a pioneering role in the field of multi-level governance, in developing, articulating and
defining the working methods and complex inter-relationships of democratic governance at several different
levels (local, intermediate, regional, national and supra-national).
2. Convinced that:
a. much of the future of the European space, its future peaceful and prosperous development will depend
on making greater progress in conflict prevention and resolution, which will require the political will to pursue
peaceful political dialogue and to move forward on identifying and negotiating legal and constitutional
solutions, to develop satisfactory models of decentralised democratic governance for regions with specific
issues and identities;
b. the regional level of self-government remains an under-exploited structure for the political and economic
development of European states and for responding to the legitimate democratic demands of their citizens;
c. special regional autonomy status can be an effective counterbalance to secessionist tendencies.
3. Recognising that the special status enjoyed by regions of some European states has brought stability
and prosperity to those regions.
4. Bearing in mind:
a. the 2002 Helsinki Declaration on Regional Self-Government;
b. the 2009 Council of Europe Reference Framework for Regional Democracy.
5. Welcoming the resolve of the Committee of Ministers to seek peaceful political solutions to European
conflicts.

6. Therefore asks the Committee of Ministers to:

a. invite member states to make greater use of the special status model, as a realistic option for a
negotiated solution to regional territorial issues, including frozen conflicts;
b. involve the Congress, the Parliamentary Assembly and the Venice Commission in this work;
c. examine how special regional status can contribute to addressing the territorial issues faced by countries
with which it is cooperating in the framework of the Council of Europes policy towards neighbouring
regions;
d. include, in the context of its political dialogue with the Congress, a transversal examination of the
conditions for successful regional autonomy.
EXPLANATORY MEMORANDUM
I. Introduction5
1. Regions with special status exist in several member states of the Council of Europe. Such regions
represent particular forms of territorial authorities between the central government and local authorities.
They enjoy different powers as compared to other sub-national entities of their respective state and are
established with a view to responding to particular needs of certain territories due to, inter alia, their history,
geographical position, culture or linguistic characteristics.
2. While there is no uniform model of regions with special status nor there could be, as each case aims at
resolving peculiar needs of the territory concerned this report provides a comparative analysis of the
phenomenon across Europe. The analysis of European special status regions examines their scope,
background and legal guarantees (part II), the implementation of the principles of regional democracy in
those territories (part III), the main powers vested with the special status regions, including external
relations, and the procedures for their implementation and their guarantee (part IV), the financial
arrangements (part V). It concludes by highlighting the essential elements of special status autonomy (part
VI).
3. The Council of Europes interest in the potential of special status for better territorial governance and for
the prevention or solution of conflicts over certain territories is not new. Already in 1999 the Congress of
Local and Regional Authorities of Europe adopted a seminal Recommendation 70(1999) on local
law/special status, based on a study by the Congress [CG/GT/CIV (5) 3], which promotes the introduction
or preservation of forms of special status with the aim of seeking solutions to current conflicts in Europe.
Furthermore, in 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1609
(2003) on Positive experiences of autonomous regions as a source of inspiration for conflict resolution in
Europe (see also Report Doc. 9824). A motion for a Resolution of ethnic conflicts in Council of Europe
member states was presented by several members of the Parliamentary Assembly in 1999 (Doc. 8425),
stressing the importance of special status as a means for conflict resolution. The potential of special status
arrangements as instruments for conflict resolution is highlighted also by the Commission for Democracy
through Law (Venice Commission) including in its General Legal Reference Framework to Facilitate the
Settlement of Ethno-Political Conflicts in Europe, adopted in October 2000 (CDL-INF(2000)16, esp. p.6).
The Congress Recommendation 278 and Resolution 293 (2009) on Regions with legislative powers:
towards multi-level governance and the recent Schausberger report of the Committee of the Regions of the
EU6 are also relevant in this respect.

4. While the reasons for granting special status to specific parts of a states territory may vary, it is
commonly accepted that such asymmetric distribution of powers enables tailor-made solutions and may
constitute an important governance tool in contemporary complex societies, based on the rule of law. To
cope with such complexity, power is increasingly distributed in non-uniform ways among various tiers of
authority.
5. Special status arrangements for sub-national units not only are consistent with the overarching public
international law principle of territorial integrity of states: they also help preserve such integrity by
addressing specific claims without challenging the unity of the state. As provided in Congress
Recommendation 240 (2008) on the European Charter of Regional Democracy, the relationship between
regional authorities and central government shall be based on the principle of mutual loyalty and equal
dignity and shall entail respect for the unity, sovereignty and territorial integrity of the state (article 9.1.).
6. In some case, especially when special status is established in order to accommodate ethno-cultural
minority groups, it is considered to be the most genuine expression of internal self-determination of peoples
(although the term is used sparingly in legal acts see below, 72). In any event, the protection of specific
groups and territories by means of special territorial autonomy is to be balanced with the principle of respect
for central governments economic and social cohesion objectives and to central government activities
aimed at achieving comparable living conditions and balanced development throughout the national
territory, in a spirit of solidarity between regional authorities as specified by article 10 of Congress
Recommendation 240 (2008).
7. This report comparatively analyses internal constitutional rules on special status regions, irrespective of
the terminology used in each country. Its aim is to provide a comparative framework on how these
arrangements work, with special regard to the implementation of regional and local democracy as defined
primarily in the Council of Europes European Charter of Local Self-Government and in the Reference
Framework for Regional Democracy in these particular conditions.
II. Special status: scope, background and legal guarantees
a. The scope of special status
8. All territorially compound states, be they called federal or regional, are based on a certain degree of
asymmetry. This means that in every federal or regional system even if the powers of the sub-national
units are constitutionally the same they are not exercised in the same way. Thus, asymmetry and
differentiation are innate in each form of territorial division of power. However, the different exercise of the
same competence does not amount to special status, nor does the provision common to most federal
states of peculiar territorial settings or rules of representation for some sub-national entity, such as, inter
alia, capital cities or districts in most federal countries, city-states in Germany, the so called half-cantons in
Switzerland (although this term is no longer in official use after the constitutional amendment of 1999).
9. Special status entails the legal guarantee of more powers (legislative and/or administrative and/or
financial), at least quantitatively in terms of legislation, and normally privileged forms of representation and
negotiation often by means of bilateral channels with the state for specific territorial authorities. Such
authorities always enjoy political and administrative autonomy, while formal legislative autonomy depends
on the constitutional setting of each country. For example, Madeira and the Azores enjoy political autonomy
and wide competences, even though they cannot pass formal laws. Similarly, theCollectivit territoriale of
Corsica has overall a broader autonomy as compared to other regions in France although formal law-

making is pre-empted. Political autonomy of the concerned territory is expressed by an own elected
assembly and an accountable government.
10. As a rule, special status only affects specific territories (regions) of a state where there is no wish or
need to introduce a fully-fledged federal system. To extend special status to all territories of the state would
contradict in essence the very rationale of a special treatment. However, in some case the constitution can
provide an open framework for the enjoyment of special status to most sub-national entities such as in
Spain. To identify special status regions, it is essential that the constitutional or legislative framework also
provides specific procedural traits for some territories, as is the case in Spain (articles 143, 148, 149.3, 150
and 151 of the constitution).
11. Conversely, a constitutional division of competences allowing to exercise specific additional powers for
the regions that so decide does not amount to a special status. Rules of this kind are to be found in
Germany in some enumerated areas of the concurrent legislative competence (article 72.3 Grundgesetz), in
Italy, where ordinary regions can be transferred a number of additional competences (article 116.3
constitution, although such provision has not been used in practice) and in France, where the
territorial collectivities can experimentally derogate to the legislative or regulatory provisions for a specific
item and for limited time (article 72 constitution).
12. Furthermore, the establishment of different categories of sub-national units entrusted with different
competences (such as in Belgium, with Regions and Communities, or in the Russian Federation, composed
of Republics, Krais, Oblasts, cities of federal significance, an autonomous oblast and autonomous okrugs)
is essentially a means to make special status a structural element of the whole constitutional architecture of
a country, thus departing from the idea of special status 7.
13. The so-called frozen conflicts are often regarded as special status regions by the states they de facto
broke away from, even though these territories do not accept such status and consider themselves as
independent states. This is the case, for example, of the break-away region of Transnistria, which according
to the legislation of the Republic of Moldova is an autonomous territorial unit with special legal status (law
no. 173/2005)8. While it is generally considered, including by the Council of Europes Parliamentary
Assembly, that special status autonomy might be a tool to resolve such conflicts peacefully by reasonably
accommodating the positions at stake (see also above, 3, 5 and 6), the frozen conflicts are not included in
the category of special status regions due to the absence of common acceptance of such status by the
involved parties.
b. Background, motives and content of special status
14. There are two main reasons why certain territories of a state are granted special status. The first is a
peculiar geographic position that has the effect to isolate the territory from the rest of the state: very often
special status regions are in fact islands and as such they express specific needs in terms of selfgovernment9. Occasionally, exclaves also enjoy particular forms of autonomy, such as the Nakhchivan
Autonomous Republic in Azerbaijan10. The second is a particularly strong cultural, linguistic or religious
diversity of a territorys dominant population as compared to the majority population of the state. Often these
two elements are combined.
15. Economic disparity should not be a reason for granting special status. In this respect, it is worth
recalling Article 10 of the Draft European Charter of Regional Democracy (Congress Recommendation 240
(2008): The exercise of regional self-government shall contribute to the central governments economic and
social cohesion objectives and to central government activities aimed at achieving comparable living

conditions and balanced development throughout the national territory, in a spirit of solidarity between
regional authorities.
16. There are also other pushing factors for granting some differential treatment to given territories. These
include the presence of specific socio-economic conditions or some historical legacies. Among the former,
examples include the special regimes recently established for the Greater London Authority and the Rome
Capital Area. Examples of the latter are the so called Swiss half cantons. However, these particular
regimes are either non regional in nature (such as the Greater London Authority or the Rome Capital Area)
or limited to minor elements (such as the representation in the upper chamber for the Swiss former half
cantons) and do not amount to full special status in the meaning of this Report.
17. Special status is normally expressed by a constitutionally or legally entrenched guarantee of more
autonomy for specific territories (see above, 9). This in most cases entails more numerous legislative and
administrative powers as compared to other territorial authorities belonging to the same state. Other criteria
for identifying special status are special procedural or institutional channels for cooperating with the state or
to be represented in central institutions (see below, III.c) and special financial arrangements (see below, V).
While special and more numerous competences are always a criterion for special status, asymmetrical
financial and procedural regimes can also affect other, non-special territories: financial benefits are in fact
very often granted to economically weak areas irrespective of their constitutional status, and special forms
of representation might be due to historical (like the so called Swiss half Cantons) or other reasons, like a
proportionally better representation of smaller territorial units (like for the composition of second chambers
of federal parliaments).
c. Legal guarantees and entrenchment of special status
18. Special status must be based in law. Normally the entrenchment has constitutional nature and is further
specified in legislative and administrative acts. Constitutional guarantee at least in the material sense, like
for the devolved areas in the United Kingdom or for the Danish Home Rules on Greenland and the Faroe
Islands is an essential condition for legal certainty. Constitutional entrenchment is necessary since special
status impacts on the principle of equality among the citizens of the same state.
19. Occasionally, special status regimes originate from and are based on international agreements. This is
the case of, inter alia, South Tyrol in Italy (so called Gruber-Degasperi Agreement, 1946), Nakhchivan in
Azerbaijan (Moscow and Kars Treaties, 1921) and (although not strictly in a formal sense) the land Islands
in Finland (so called land Settlement, 1921). International anchoring provides an additional layer of legal
guarantee to special status regions, as the infringement of existential elements of their autonomy can be
challenged in international forums including in the International Court of Justice. More recent special status
arrangements, such as the ones regarding Crimea in Ukraine and Gagauzia in Moldova, have been
adopted with significant international participation, although no formal international guarantee is provided.
20. While the existence of a general right to autonomy under public international law is disputed and mostly
denied, such a right is sometimes explicitly recognised by some domestic provisions. The right to autonomy
can be defined as a constitutional right for all nationalities and regions of the state, as provided by article 2
of the Spanish constitution, or as a specific right of the population of a special status territory, as is provided
by article 4 of the statute of the autonomous province of Vojvodina.
21. In most cases, the state constitution provides for the overall framework of special status regions,
normally with ad hoc provision for specific territories. Only occasionally like in the case of Spain the
constitution provides for a general constitutional right to autonomy potentially open to all regions. Quite

exceptional is also the inclusion of detailed provisions in the state constitution itself, such as the Ukrainian
constitution with regard to Crimea (title X constitution).
22. More detailed provisions on the functioning of special status regions are usually included in legal acts
subordinated to the constitution. These are often constitutional or quasi-constitutional acts (organic laws
and the like) enacted by the state parliament, normally after adoption by the regional assembly and
sometimes after confirmation by regional population in a referendum. In some cases the affected regions
adopt their own statute or basic law (normally by qualified majority and sometimes by involving the local
population through a referendum) within the limits of the state constitution.
23. Such legal acts are usually entrenched and cannot be modified by simple majority. The essence of
special status lies in fact it not being alterable, in its fundamental elements, by the arbitrary will of state lawmakers. To the contrary, amendments to the essential elements of special status require, as a rule,
negotiated procedures. On the other hand, the examples in the United Kingdom demonstrate that it is
possible to have fluid constitutional arrangements, in which each case is treated on its specific merits,
evolving step by step over a long period of time.
24. The adoption by referendum of the legal act establishing and regulating the special status normally
gives additional legitimacy to such status, like in the case of the devolution acts of 1998 for Scotland, Wales
and Northern Ireland. The status of the latter was remarkable in that it was settled in part through an
international agreement between the Republic of Ireland and the United Kingdom, which constitutes part of
the 1988 Good Friday Agreement, and involved referendums on both sides of the border. However, popular
votes might be particularly controversial in case of tensions, internationally driven processes or post-conflict
situations. Furthermore, popular support is in some situation controversial, like in the case of the Basque
country: the majority of the Basque voters voted against the Spanish constitution (as the only autonomous
community) but yet in favour of the autonomy statute which is based on this constitution.
III. Principles of regional democracy
25. In special status regions, principles of regional democracy are, as a rule, stronger entrenched and
protected as compared to other regions of the respective state. The legal safeguards are similar to those
provided for in federal countries, with the significant difference that they affect specific individual territories
rather than just the community of the sub-national entities.
26. Special status autonomy is developed against the background of and taking in consideration three main
general principles: subsidiarity, territorial cohesion and solidarity. These principles are general orientation
criteria informing the detailed mechanisms and procedures aimed at achieving the necessary balance
between different and sometimes diverging needs that special status arrangements are aimed to achieve.
Subsidiarity implies that decisions should be taken as close as possible to citizens by ensuring that action
by a higher level is justified in the light of the possibilities available at the various levels of government.
Territorial cohesion aims at granting equal opportunities to citizens, regardless of where they live, by
providing then with equitable conditions of access to public services, sustainable development and quality
of life throughout the country, with due regard for the diversity of geographical and demographic situations.
Solidarity implies that, in exercising their powers and responsibilities, regions refrain from taking steps that
can jeopardise the overall structural balance and harm the common interests of the state, including by
helping territories facing structural or occasional problems.
a. Protection of boundaries

27. As to the protection of boundaries a principle laid down in article 5 of the European Charter of Local
Self-Government (ECLSG) the territory of special status regions is normally identified in the foundational
act establishing the special status regime. As mentioned above (II.c), such act is, as a rule, entrenched so
as to not be unilaterally amendable by simple majority by the state legislature. Therefore, not only the very
existence of special status regions, but also their territorial delimitation is normally protected by entrenched
provisions. However, depending on the constitutional design of each country, different degrees of legal
guarantee of the protection of boundaries are to be found.
28. A first distinction concerns the criteria used to identify and potentially modify the borders of the
special status regions. In most cases, the foundational acts of each special status regime list the
municipalities, the administrative units or the territories (especially in the case of islands and archipelagos)
that constitute the special status region. In some other case historical borders have simply been formalized
in legal acts (such as in the case of the borders of Scotland and Wales with England). Finally, in some
cases the legislative framework does not identify the territory but rather provides for the criteria to determine
it. In Spain, the constitution establishes the procedure according to which provinces can establish
autonomous communities (article 143). In Moldova, the Law on special legal status of Gagauzia (article 5)
establishes that Gagauzia is composed of localities where Gagauzians make up more of 50% of the
population and gives the option to hold a referendum on joining the Gagauz Yeri for municipalities with less
than 50% Gagauz population.
29. A second important distinction regards the degree to which changes to the special regional boundaries,
including amalgamation with other authorities, are possible. Based on the legal status of the special regime,
the change of boundaries might require a constitutional amendment 11, sometimes even an international
agreement or third party consent (as in the case of the Autonomous Province of Bolzano South Tyrol), the
approval by the citizens of the autonomous territory in a referendum (like for the territory of the autonomous
province of Vojvodina) or a simple legislative amendment. In such latter case, the degree of consultation of
the affected authorities or citizens is determinant. In the United Kingdom, it is contended that, since
devolution acts were adopted by means of referendum in the devolved areas, their changes would require
the same procedure, although formally there is no obligation to do so. It is worth noting that the Northern
Ireland Parliament was unilaterally abolished in 1972 by the UK Parliament.
b. Supervision of acts and substitution
30. Following the principle laid down in article 8 of the ECLSG, the Council of Europe Reference Framework
for Regional Democracy (MCL16(2009)11 of 03 November 2009, hereinafter Reference Framework) as
well as the Helsinki principles of regional self-government (adopted in 2002 by the ministers responsible for
local and regional government hereinafter Helsinki Principles) establish that any supervision of regional
authorities by central state authorities shall normally only aim at ensuring their compliance with the law
(Helsinki principles, B4.1). Furthermore, administrative supervision of regional authorities may be exercised
only according to such procedures and in such cases as are provided for by constitutional or legislative
provisions. Such supervision shall be exercised ex post facto and any measures taken must be
proportionate to the importance of the interests which it is intended to protect. (Helsinki principles, B4.2).
31. As to substitution, Congress Recommendation 240 (2008), article 44, states that national or federal
authorities power of temporary substitution to act in lieu of regional authority organs may be exercised only
in exceptional cases and under the procedures provided for by the constitution or by law. This power shall
be confined to specific cases where regional authorities have seriously failed to exercise the competences
vested in them and shall be utilised in accordance with the principle of proportionality in the light of the
interests it is designed to protect. Furthermore, the decision-making power resulting from a substitution

measure shall be entrusted to staff acting solely in the interests of the regional authority concerned, except
in the case of delegated responsibilities.
32. When special status regions are part of a state that encompasses also other forms of regional
autonomies (as in Spain, Italy or France departments and overseas territories), the rules on supervision of
regional acts and substitution by the state are generally the same for all type of regions. Normally,
substitution is possible only in exceptional cases of persistent violations of laws or international liability of
the state resulting from a regional misconduct, as is typically the case of non-compliance with obligations
arising from European Union law.
33. Conversely, when special status regions are the only regional authorities in their respective country,
specific rules on supervision and substitution are established. These generally respect the principles
mentioned above and sometimes go beyond by establishing specific guarantees. For example, all Danish
laws must be submitted to the President (Lagmadur) of the Faroe Islands before they can enter into force
on the autonomous territory. All the laws adopted by the land parliament need to be signed by the Finnish
president within four months: the president can veto the laws in case of ultra vires legislation or if the law
jeopardises the internal or internal security of the country, but in order to minimise the risk of a presidential
veto, a mixed expert commission examines the laws before they reach the state president.
c. Right to be consulted and cooperation mechanisms
34. Special status has both a material and a procedural dimension. The former means in essence more and
special powers (see IV below). The latter essentially consists in a wide range of rights to participate in
decision-making, including to be involved and effectively consulted in state decisions affecting their
competences, essential interests or the scope of their self-government. The more developed special status
regions have direct bilateral channels with the state institutions and can veto unilateral state decisions
affecting the core of their self-government.
35. As stipulated by the Reference Framework and Helsinki principles (B3.2), the involvement is ensured
through representation in state decision-making bodies and/or through consultation between the state and
the regional authorities concerned.
36. Nearly all special status arrangements provide for a guaranteed representation of the special status
region in the state parliament, irrespective of the population ratio. This is of particular importance for small
special status regions. Reserved seats in the Danish parliament are provided for the Faroe Islands and for
Greenland, in the Finnish Parliament for the land Islands, in the French Parliament for Polynesia, in the
Portuguese Parliament for the Azores and Madeira, etc. The asymmetric structure of special status
autonomy can give rise to cases of over-representation and issues of legitimacy: this is the case, for
instance, of the so called West Lothian question, which means that Scottish members of the British
parliament can vote on issues only affecting England while no reciprocity is given, since for devolved
matters the Scottish parliament is competent.
37. In some cases, representation for the special status regions is established also in the state government.
The president (Baskhan) of Gagauzia is automatically a member of the Moldovan cabinet and the
presidents of Italian special regions have the right to participate in the state cabinet meetings when issues
of their specific interest are discussed.
38. Even more importantly, for most special status regions institutional bilateral bodies or procedures are in
place with a view to establishing direct channels for cooperation and to prevent political conflicts or judicial

litigation. These instruments are either limited to specific issues or entrusted with a general competence.
Particularly important in this regard are the joint commissions in place for each Italian special region. These
are composed by equal number of state and regional representatives and draft the implementing measures
(by-laws) for the respective autonomy statute. Such measures enjoy a higher rank as compared to the laws
of both the state and the regional parliament.
39. In exceptional cases, special status regions enjoy veto rights over vital decisions affecting them, if the
consultation mechanisms have not worked. For example, the land Islands have the right to veto
international decision matters directly affecting their legislation (as expressed by the referendum on EU
accession in 1994).
40. More frequently, special procedures are established in order for the special status authorities to be given
time to adapt to state reforms or to make their voice heard at state level. In Greenland, all measures that
affect or might impact on the island must be communicated in advance to the local authorities, which have
in principle six months to take their stand. In the Autonomous Provinces of Trento and Bolzano-South Tyrol
in Italy, state laws introducing fundamental socio-economic reforms enter into force only after six month in
order to provide time to adopt the necessary local legislation adapting the principles to the specific needs of
the special territories.
d. Legal protection
41. While consultation mechanisms and veto rights are essentially political in their nature, access to a
judicial remedy in order to secure the free exercise of powers of regions with special status and the respect
for the principles of regional self-government enshrined in domestic law makes it possible to settle conflicts
according to legal rules. For this reason, legal protection is a fundamental element of the rule of law, on
which regional democracy must be grounded.
42. In most cases, the judicial body entrusted with the adjudication of conflicts regarding competences of
special status regions is the state constitutional court. The court can be called to resolve legal disputes by
the bodies of the state (normally the government) or of the special status authorities (more often the
executive, sometimes the parliament). Normally, there is no legal rule regarding the presence of judges from
the special status region in the constitutional court, although this might be provided for in practice in some
case. There are those who argue for the creation of an additional supranational constitutional court at the
European level to deal with legal disputes of this nature that are not able to be resolved at the national level.
The Council of Europes Venice Commission, which has long played a valuable advisory role with regard to
new constitutional proposals, would seem well-placed to play a greater role in the definition of the
competences of special status regions.
43. It is worth noting that where no constitutional court is in place, a functional equivalent is in charge with
the resolution of litigation concerning the delimitation of competences: this is the case of, notably, the
recently established supreme court of the United Kingdom, which has jurisdiction, inter alia, to resolve
disputes relating to devolution issues, i.e. concerning conflicts of competence, the powers of the three
devolved governments or laws adopted by the devolved legislatures. In some occasions, the courts can
render advisory opinions on issues related to special status regions, such as in the case of the Supreme
Court of Finland on matters regarding the land Islands.
44. Sometimes special status arrangements de facto limit the access to judicial adjudication. This is the
consequence either of vague provisions that are therefore difficult to adjudicate in a court, as sometimes
happens, for instance, for Gagauzia, or of a deliberate choice to resolve issues only at political level. For

example, the bilateral treaties concluded after 1994 between Tatarstan and the Russian Federation on a
number of subjects including economic policy, military camps, protection of the environment, etc., do not
provide for a judicial settlement of conflicts and there is no clarity as to what should be the applicable law. It
must be remembered that judicial adjudication of competence disputes is an essential element of local
regional democracy based on the rule of law, as established by article 11 of the ECLSG and by article 21 of
Congress Recommendation 240 (2008).
45. Particularly interesting is the conflict-resolution mechanism provided in Greenland (article 18 Home Rule
Act 1978), which effectively combines political and judicial instruments. In case of disagreement about the
exercise of competences, a special commission is tasked with the solution of the dispute. This commission
is composed of two members appointed by the Danish government, two appointed by the autonomous
government and three supreme court judges. If the four political representatives can find an agreement, the
conflict is settled, otherwise it is adjudicated by the three judges.
e. Democratic representation and citizens participation
46. Like any other regional or local authority vested with political power, special status regions must have a
representative assembly. Such assembly is elected by direct, free and secret suffrage and in a multi-party
system in all special status regions. The special status of the involved territories and the composition of the
involved population often determine the presence of a peculiar political system in the special status territory,
with regional parties sometimes being in power for very long time.
47. While assemblies are always elected, representatives of cooperation bodies between the special status
authorities and the state are usually appointed or indirectly elected by the assembly or by the executive.
48. Most special status regions have a parliamentary system, whereby the executive and its head are
appointed by the elected assembly. There are some instances, however, when the president of the region is
directly elected by popular suffrage, such as in Gagauzia and in the Italian special regions with the
exception of the autonomous province of Bolzano and the Aosta Valley. If the president is directly elected,
the members of the regional government are appointed by the president and confirmed by the elected
assembly; conversely, the directly elected presidents, while not answerable to the assembly, account to it of
his/her acts (can be removed in exceptional circumstances by the State President and can be dismissed by
the assembly, which in this case is automatically dissolved, art. 126 constitution).
49. Quite frequently, special status regions provide for wider use of direct citizen participation, such as
referendums, citizens assemblies, popular initiatives and the like, especially in smaller territories. According
to Congress Recommendation 240 (2008), articles 4, 6.1 and 6.2, the exercise of citizens right to
participate in the management of public affairs shall be encouraged, and regional self-government shall
comply with the principles of informed decision-making and evaluation of decisions made, as well as pursue
aims of flexibility, openness, transparency, participation and public accountability.
50. Special status regions normally have their own assets, administration, staff and staff code. In Scotland
and Wales, the civil service is not a devolved matter and civil servants are members and subject to the rules
of the UK civil service, although they owe their loyalty to the devolved administration in first place.
IV. Main powers and procedures
a. Content and scope of self-government for special status regions

51. As affirmed by the Reference Framework and the Helsinki principle A1.2, regional self-government
denotes the legal competence and the ability of regional authorities, within the limits of the constitution and
the law, to regulate and manage a share of public affairs under their own responsibility, in the interests of
the regional population and in accordance with the principle of subsidiarity. In addition to that, special
status consists in broader legislative and administrative powers as compared to other regions of the same
state where existing , special financial arrangements and ad hoc procedures to regulate the relations
with the state and other subjects. While financial arrangements will be dealt with in the next section (V), this
part analyses the main competence areas normally devolved to or exercised by special status authorities,
their legal guarantees and the procedural framework for their exercise. Particular attention is devoted to
international relations and inter-regional cooperation as key areas of interest for special status regions
(IV.c).
Entrenchment of the competence matters
52. As mentioned above (part II.c), special status requires constitutional coverage, at least in the material
sense, and is further specified in other acts, constitutional or legislative in nature. These include
constitutional laws, regional constitutions, statutes of autonomy, and entrenched laws of the state
parliament, often adopted with formal consent of the involved territory, expressed by the elected assembly
and/or by referendum. All these various forms of entrenchment, including, where existing, international
anchoring of special autonomy, serve the purpose to impede that essential elements of the special
autonomy be changed by unilateral decision of an occasional majority in the state parliament.
53. It is generally contended that the essential elements of the special status cannot be changed, for sure
not without the consent of the affected authorities. Such elements include, in particular, the very existence
of the concerned authority, its special position within the constitutional framework of the state and the very
purpose why the special regime has been established. Conversely, the division of competences requires
some degree of flexibility. The procedure to amend the competence fields and the limits for the exercise of
the competences varies based on the source of law in which they are enshrined.
Political autonomy
54. Within the framework of the state constitution and of the other sources of law regulating the special
status autonomy, including the procedures in place for cooperation and supervision, the special status
authorities are free to determine their own policy in the competence fields they are responsible for. This
means that they normally enjoy full discretion to exercise their initiative with regard to the matters that are
not excluded from their competence, with a view to adapting them to the specific needs of the territory. It
thus implies that the definition of the specific needs of the territory and of its population is determined in first
place by the regional authorities concerned and that such authorities shall be vested with decision-making
and implementation powers in the areas covered by their own competences.
55. Special status regions usually have legislative powers in the areas of their competence as the most
genuine expression of their political autonomy. However, even when special status regions do not enjoy the
power to adopt formal laws (as in the case of the collectivit territoriale of Corsica, the Azores and Madeira,
or Wales until 2006), it is essential that they can adopt binding legal acts of a general nature that in fact can
express the decision-making power and the political autonomy of the special status authorities.
Division of competences

56. Competence matters of special status regions are normally listed in a detailed way by the foundational
acts of the autonomy. In most recent arrangements, such as the new autonomy statutes of Catalonia and
Vojvodina, a great degree of detail is used to determine and define the competences. Conversely, when
competences are not sufficiently specified as to what authority has what power in what policy area,
controversies are likely to happen and difficult to solve, as noted by many with regard, for instance, to the
difficult implementation of the autonomy of Gagauzia.
57. At the same time, however, it must be noted that a clear identification and division of competences is
per se not enough to prevent controversies. First, the lists of competences often overlap between the state
constitution and the basic laws of the special status arrangements, and this can cause disagreements
between the state and the special status governments, as the specific content of individual competences
can be interpreted differently. Secondly, competences are in many cases not exclusive, but rather shared by
the different layers of government. Third, competence matters such as those in the field of environmental
protection, economic territorial development, infrastructure, energy and others, are often transversal,
whereby the prevailing interest whether state-wide or local cannot be defined a priori. Therefore, to
attribute a competence to one level does not per se resolve the question of what authority is responsible for
what action, simply because, in a multilevel system, most fields are subject to regulations issued by different
authorities.
58. Thus, to avoid competence conflicts, it is essential that the procedures for cooperation and consultation
(see III.c) and the legal guarantees (see III.d) are equally developed as the techniques for dividing the
responsibilities in detail. In this regard the Government of Wales Act 2006 is to be mentioned, which divides
(schedule 5) between fields (broad subject areas) and measures (specific policy areas within a field) and
provides a mechanism for the Welsh Assembly to gain further legislative competences.
b. Core areas of competence
59. A comparative analysis of the main competence areas for which special status regions are responsible
shows that such authorities are vested in first place with the powers to regulate the essential elements that
have led to the establishment of the special status regime. These can be divided in two broad areas. The
first is the protection of the specific cultural, linguistic and ethno-national characteristics of the population
living in the autonomous territory. The second is the regulation of the specific socio-economic and
infrastructural needs of the territory. As these two reasons concur in determining the establishment of most
of the special status regimes (see above, 14), also the respective competences are frequently combined.
60. The culture-related competences include in particular promotion of regional culture, defending and
enhancing the regions cultural heritage, the regulation of the use of language(s), school, education and
training, symbols, museums, libraries, theatres and other cultural institutions, sport, local media.
61. The territory-related competence include, inter alia, urban and territorial planning, protection of the
environment, forestry, construction, trade, hunting and fishing, transportation, roads, water and energy
supply, heath care, social security and social welfare, local labour market, economic development, use of
natural resources, juvenile policies, foreign relations as provided (see below, IV.c). The effective control over
the environment and the use of natural resources is of particular importance in those special status regions
that are especially rich in terms of bio-diversity and/or whose culture is especially linked to the land, as in
the case of but not limited to indigenous peoples.
62. A third set of competences common to the special status regions are those necessary to the functioning
of the administration and to the preservation of an own political system. These include, in particular,

electoral law, organization of the own administration, in most cases organisation of the own civil service and
regulation, supervision and (co) funding of the municipalities.
63. With regard to competences in the field of jurisdiction and law enforcement, the situation varies
considerably from case to case. While local police is often included in the regional competences as part of
the power to regulate municipalities, the establishment of an own regional police very much depends on the
history of the special arrangement, on whether there has been a violent conflict, on the negotiations with the
state, and other factors. Ultimately, no general trend is to be noticed in this regard. For example, regional
police exists both where there has been no violent conflict (Catalonia), and where severe violent
occurrences happened (Northern Ireland, Basque Country). Conversely, regional police does not exist in
special regions that experienced very limited violence (Autonomous Province of Bolzano-South Tyrol) or
semi-autonomous police exist where no violence occurred (land Islands).
64. Similarly, the existence of an autonomous judicial system depends on the legal tradition of the country
as well as on historical factors. In most cases the judicial system is the same for the whole state, although
exceptions exist, like in the United Kingdom, where England and Wales have one judicial system, Scotland
a different one and Northern Ireland a third one. Within a unified judicial system, specific rules are
sometimes in place with regard to the use of local/minority languages and, as a consequence, to the
requirements for being assigned or even hired as a judge, a prosecutor or an employee of the court. In the
Autonomous Province of Bolzano-South Tyrol, for example, while the judicial system is the same as in the
rest of Italy, a separate selection for magistrates and court employees takes place, all have to be bilingual
and the posts are assigned according to the quota system by language groups as for other branches of
public administration. In the Basque country it is established that the state and the autonomous community
cooperate in the appointment of judges and civil service of the judiciary in the autonomous community.
c. External relations
65. In most cases, special status regions have specific competences with regard to external relations,
including treaty-making power, a limited international subjectivity, inter-regional cross-border cooperation
and, where applicable, special relations with the European Union. While foreign policy is normally a state
competence, the importance of establishing some external relations for many special status regions
depends on factors such as history, the existence of a kin-state of the majority population in the territory,
geographical position and the magnitude of the self-government enjoyed by the special status region.
66. As a minimum standard, special status regions have the right to be consulted by the state government
and often to be included in the state delegation when treaties are negotiated that are of direct concern to
them, as provided, inter alia, by the statutes of autonomy of Sardinia and of the Canary Islands. This
includes, in particular, the right to be effectively consulted, or to be represented through bodies established
for this purpose, in the activities of the European institutions.
67. More frequently, special status authorities are also allowed to directly negotiate with foreign countries
and foreign sub-national authorities, with (Faroes, Greenland) or without (Azores, Madeira) the presence of
the states foreign ministry, normally in limited areas that directly affect them. Some special status regions,
including the Faroe and the land Islands, as well as Greenland, are part of international organisations that
do not necessarily require their members to be states, such as the Nordic Council. Some others, such as
Catalunia, have signed cooperation agreement with a number of multilateral organisations.
68. In some cases, special status regions have their own treaty-making power, although the international
liability ultimately rests with the state. This gives the state extensive powers to control that treaties

concluded by the special status authorities do not conflict with the foreign policy of the state. In this regard,
it is important to establish mechanisms to prevent disputes, like in the case of Denmark, where a special
adviser for Faroese issues is based in the foreign ministry with the task to bring interests together. In case
of disagreement on the competences, a joint committee is in charge to solve the issue.
69. Since special rules with regard to the right to establishment, to buy property, to fish and to use natural
resources are provided in a number of special status regions, these often enjoy special status also with
regard to the relations with the European Union. For example, the Faroe Islands have never been part of
the EU, Greenland has withdrawn from it in 1985, following a referendum, and the land Islands are
exempted from some EU policies based on a protocol negotiated by Finland at the time of its EU-accession.
Specific limitations to the application of EU law are provided in a number of other special status territories,
including as the Channel Islands, the Isle of Man, Gibraltar, Ceuta and Melilla, French overseas territories
and departments.
70. Given the particular history and conditions of some special status regions, some of them also have
additional special agreements that impact on their external relations. For instance, the land Islands are
since long time a de-militarized territory, and Greenland is (at least according to a resolution adopted in
1983) a nuclear-free territory.
71. Furthermore, all special status regions have the right to form associations and to undertake activities of
inter-regional or cross-border cooperation in matters within their competences. This often includes the
establishment of preferential links with the kin-state of the majority population in the autonomous territory.
72. In exceptional cases, also the right to external self-determination is contemplated. Greenland has
started in 2009 a negotiated process that could lead to full independence. The same goes for French
Polynesia, which based on the so called Matignon agreement is entitled to hold a referendum on
independence from France as of 2014. Similarly, the law on special status of Gagauzia stipulates that in
case of change of status of the Republic of Moldova as an independent state, the Gagauz people will be
granted the right to external self-determination.
V. Financial arrangements and related issues
73. It is a fundamental principle of local and regional democracy that local and regional authorities shall
have at their disposal foreseeable resources commensurate with their competences and responsibilities
allowing them to implement these competences effectively (art. 6 and 9 ECLSG and Helsinki principles,
B11.1-4).
74. Special status regions enjoy more competences as compared to other territories of the same state and
are established with the aim to provide viable solutions to complex issues of governance of territorial and
cultural diversities. For this reason, a special financial regime is a necessary precondition for special status
authorities to exist as such.
75. At the same time, a special and more favourable financial regime, while indispensable to finance more
competences, also raises questions of solidarity and proportionality. Being part of a state normally implies
the obligation to participate in forms of equalization between economically stronger and economically
weaker territories. The degree to which special status regions participate in such system varies from case to
case based on a number of factors that are essentially political in nature. Furthermore, to benefit from an
overall more favourable financial regime also impacts on the principle of equality among citizens of the

same state and even on the potential enjoyment of fundamental human rights. This requires, however, that
different situations be treated differently.
76. In other words, there is no universal formula to reach the balance between special financial
arrangement and the principles of solidarity, territorial cohesion and proportionality. A comparative analysis,
however, reveals a general trend, regarding both the financial aspects and the institutional principles
supporting them.
a. Financial principles
Own resources and spending power
77. In the implementation of their own competences, special status regions normally rely on resources of
their own at which they are able to dispose freely. These resources include for the most part fixed shares of
state taxes. Very few special status regions have the full tax raising authority in their respective territory.
This is the case, for instance, in the Basque country, where the autonomous community (rather: each one of
its three provinces) levies all taxes on the territory and transfers a share thereof to the state. In any event,
the tax system is always determined and coordinated by the state.
78. Other own resources include own regional taxes, additional regional rate on state taxes that special
status authorities may determine within a given range, other revenues decided by regional authorities,
variable shares of state taxes, non-earmarked funding from the state or borrowings for capital investment
collected from the capital market. Especially the amount of own regional taxes and the possibility to vary the
rate on state taxes varies considerably. Scotland, for example, has the right to Increase or decrease by no
more than 3% the rate on income tax.
79. Furthermore, special status regions often receive lump sums from the state as repayment of part of the
taxes levied by the state in the autonomous territory or as compensation for state activities that are carried
out by the special status authorities. For example, in the land Islands the Finnish state levies all taxes and
custom duties and pays back to the islands a lump sum of 0.45% of the state budget. An additional transfer
is granted if the taxes levied on the islands make up more than 0.5% of the annual tax income of the state.
The statute of the Autonomous Province of Vojvodina provides that the budget of the autonomous province
shall amount to at least 7% of the budget of the Republic of Serbia.
80. The principle of political autonomy implies that special status authorities as a rule have spending
autonomy. This means, in principle, that they are free to determine where to invest their own resources and
thus enjoy policy discretion in the implementation of their competences.
81. Additional transfers are often provided by the state in order to carry out specific duties, such as
infrastructural works. In such case, the money cannot be considered to be part of the special status regions
own resources and funds are normally earmarked by the state for a specific task.
Financial equalization
82. Financial equalisation procedures are designed to correct the effects of the unequal distribution of
potential sources of finance and of the financial burden they must support, with a view to protecting
economically weaker territories. Special status regions often benefit of equalization measures to
compensate their additional administrative costs or particular geographic conditions.

83. In most cases, special status regions either benefit from equalization measures or they are de facto
exempted from the state-wide financial equalization mechanism. This is the case when such regions receive
from the state budget what has been overall raised in the respective territory, except, in general, the costs
for the state administration or the state activities carried out on the territory. In some case, however like, to
different degrees, some Italian special status regions, or Catalonia they contribute to the state-wide
equalization mechanism. A way to contribute to such mechanisms is also the negotiated transfer of
additional competences to a special status region which accepts to cover the related costs from its own
budget, as has recently been the case, for example, for the Autonomous Provinces of Bolzano-South Tyrol
and Trento in Italy.
84. In all cases, it is essential that solidarity mechanisms are governed by predetermined rules based on
objective criteria. In particular, it should be avoided that the state uses its overall power to coordinate public
finances and to respect domestic and international obligations as regards public deficits by unilaterally
restrict the financial autonomy of special status regions, as was recently the case in Italy and Spain due to
the financial constraints. The lack of clear and commonly agreed rules may lead to an increased judicial
litigation and even political confrontation, as was the case in Gagauzia especially before 2001, where the
autonomous region and the state government had opposite views as to the interpretation of the financial
provisions of the law on special status.
b. Institutional principles
85. Whatever the tax and fiscal regime of each special status region, coordination is required among the
levels of government in this field. Such coordination requires both a cooperative attitude by the actors
involved and the existence of adequate institutional and procedural mechanisms to prevent and compose
potential conflicts. As many examples have demonstrated, especially in the Eastern part of Europe, political
agreements not supported by institutional mechanisms are not sufficient to create the necessary conditions
for effective coordination, especially in financial issues.
86. Institutional and procedural mechanisms first require the existence of clear and pre-determined rules on
how the financial relations are to be regulated. This includes, in particular, detailed provisions on how the
fixed and the variable shares of state taxes transferred to the special status regions are to be calculated,
the degree of own financial autonomy of the autonomous territories and the rules on the possible regional
discretion on the rate on state taxes. Experience shows that such rules only prove to work when they are
negotiated and permanently revised in accordance by the parties.
87. Secondly, mechanisms need to be in place for prevention and composition of conflicts as regards
financial relations. Given the complexity of the subject and its particular delicacy, special mechanisms are
often provided in this field on top of the ordinary cooperation mechanisms established between the states
and the special status regions. For example, permanent mixed commissions exist on finance and tax issues
between the Spanish state and the Basque country and between Finland and the land Islands.
88. Third, it is essential that if the cooperation mechanisms are not successful, independent judicial
remedies exist to adjudicate disputes over financial resources (see above, III.d).
89. Fourth, institutional and procedural mechanisms need to combine legal clarity and entrenchment of the
rules with some degree of flexibility to adapt them rapidly to changing circumstances. This could be
achieved by establishing that financial parts of the special status statutes or laws can be modified according
to a simplified procedure, requiring the consent of both the state and the special status authorities, as is the
case, for example, in the Autonomous Provinces of Trento and Bolzano-South Tyrol. In very particular

circumstances conventional rules on financial relations may operate, such as the so called Barnett formula
which regulates the financial transfers in the United Kingdom.
VI. Conclusions
90. Granting special status to specific territories is a means to address particular issues pertaining to those
territories without challenging the overall state structure. Special status provides a significant degree of
institutional flexibility to cater to the very specific situational characteristic without embracing, in particular,
federalization of the whole country. It is not by chance that special status regions are to be found, as a rule,
only in non-federal or at least not fully-fledged federal countries.
91. While sometimes even based on international commitments, special status is essentially a constitutional
instrument. Special status must be anchored in the state constitution and its specific rules shall be
entrenched in legal acts that prevail over ordinary legislation.
92. The essence of special status consists in its entrenchment in legal acts that cannot be unilaterally
amended by the state legislature, at least not by ordinary majority. The foundational principles of special
status regimes can, in principle, only be modified by mutual agreement of the state and the special status
authorities.
93. Special status implies more numerous and stronger guaranteed powers (legislative, administrative and
financial), privileged forms of representation as well as bilateral mechanisms for cooperation with the state.
94. The principles of regional democracy are more firmly guaranteed in special status regions. Such
principles include: political autonomy exercised by a freely elected assembly and by other forms of citizens
participation in decision-making; protection against unilateral change of boundaries; the guarantee that
supervision of acts is carried out only according to procedures and in cases provided by the constitution and
that the state power of temporary substitution to act in lieu of regional authority organs is exercised only in
exceptional cases strictly prescribed by the law; the right of special status regions to be effectively consulted
in due time before the adoption of acts of direct interest to them, and to be given sufficient time to make
their voice heard; effective legal remedies against violations of their rights and prerogatives.
95. The competences of each special status region vary as each case is aimed at solving specific issues
regarding one particular territory. However, core competences are common to all special status regions:
these concern, in particular, the subject matters related with, respectively, the safeguard of the cultural
specificities of the population and the governance of territories that often have particular characteristics as
compared to the rest of the country.
96. Despite the fact that competences of special status regions are entrenched and may be clearly defined,
coordination and cooperation mechanisms are essential in order to reduce conflicts with the state as to the
scope of individual competence areas.
97. Due to their geographic position and cultural characteristics, special status regions are normally
interested in actively engaging in cooperation with international organizations, foreign countries or regions
belonging to those states. To do so, they normally enjoy significant powers in this regard. For external
relations to be effective and not to contradict the foreign policy of the state, it is essential that cooperation
mechanisms are also in place in this area.

98. Special status regions enjoy wider financial autonomy as compared to other territories of the same
state. Not only this is necessary because such territories have more competences and thus carry out more
tasks; the reason for special financial treatment is often also the compensation for the particular territorial or
cultural situation of the affected territories.
99. Special financial arrangements require constitutional entrenchment as they impact on the principle of
equality among citizens. In order to avoid conflicts, it is essential that special financial regimes are
negotiated, detailed and flexible, and that effective remedies against violations are provided.
100. Most of the mentioned elements are common to all European special status regions. The existence
and effective implementation of such elements can be considered the main factor for success of special
status regimes throughout the continent. Conversely, comparative practice shows that the less these
principles are in place and/or effectively implemented, the more likely it is that special status regimes will
fail. Such regimes require careful balances between different constitutional principles, the ability to
constantly adapt and the right balance between rigidity and flexibility.
1

L: Chamber of Local Authorities / R: Chamber of Regions

EPP/CCE: European Peoples Party Group in the Congress

SOC: Socialist Group
ILDG: Independent Liberal and Democratic Group
ECR: European Conservatives and Reformists Group
NR: Not registered
2

Preliminary draft resolution and preliminary draft recommendation approved by the Governance
Committee on 3 June 2013 in Strasbourg.
Members of the Chamber of Regions:
K.-H. Lambertz (President), K. Agorastos, R. Aliev, M. Aygun (5th Vice-President), D. Baro Riba, G. Cobzac,
S. De Francisci(alternate: M. Toscani), S. Dickson (alternate), K. Dubin, G. Gegunzinskas, V. Golenko, O.
Goncharenko, V. Hovhannisyan,S. Ilvessalo (alternate), A. J. Jardim, L. Khabitsova, A. Klarik, N.
Komarova, S. Lisovsky, C. McKelvie, F. Maitia, B. Marziano,M. Mazur, M.M. Mialot-Muller, D. Mller,
M. Neugnot, G. Nussbaumer, O. Olavsen, B. Pecan (alternate), M. Piredda, L. Quanz, T. Rossini,
P. Sedlacek, C-L. Sestini, N. Stepanovs, I. Totev, (alternate: A. Dimitrov), A. Traag, P. Leuba, V. Taleski, Y.
Mildon, I. Schrick, T. Simpson-Laing, E. Staples, S. Steppat, A. Svensson, Mme A. Udzenija, S.
Ugrekhelidze (1st Vice-President), P. Vargas Maestre.
N.B.: The names of members who took part in the vote are in italics.
Secretariat of the committee : T. Lisney, N. Howson
3

See explanatory memorandum to this resolution

See footnote 2

This explanatory memorandum was prepared by Francesco Palermo, member of the Group of
Independent Experts on the European Charter of Local Self-Government.
6

Opinion on the state of devolution in the EU and the place for local and regional self-government in EU
policy making, the Committee of the Regions, adopted on 12 April 2013.
7

A partial exception is the Russian Republic of Tatarstan: despite formally enjoying the same constitutional
status of other republics within the Russian Federation, the legal status of Tatarstan is also governed by the
Treaty On Delimitation of Jurisdictional Subjects and Mutual Delegation of Authority between the State
Bodies of the Russian Federation and the State Bodies of the Republic of Tatarstan and by the Agreement
between the Government of the Russian Federation and the Government of the Republic of Tatarstan On
Delimitation of Authority in the Sphere of Foreign Economic Relations, both adopted in 1994.
8

Not even the identification of a frozen conflict is uncontroversial. In some case there is no international
recognition of independence (such as in the case of Transnistria or Nagorno-Karabakh), in some other case
but a few (like for Abkhazia and South Ossetia). The case of Kosovo is even more complex, as it is
recognized as an independent country by many states (more than half of the UN member states and the
majority of EU and Council of Europe members) but is also considered a special status province by the
Republic of Serbia. For the Council of Europe, all reference to Kosovo, whether to the territory, institutions
or population, shall be understood in full compliance with United Nations Security Council Resolution 1244
and without prejudice to the status of Kosovo.
9

In some case, these are semi-independent, former colonial territories, often referred to as Dependent
Territories, like for example the British dependent territories such as Anguilla, Bermuda, Caiman Islands,
Montserrat islands, Caicos, Islands, Turks Islands. These cases do not qualify as special status regions for
the purpose of this Report.
10

Not all exclaves are per se to be considered special status regions, but only those that enjoy special legal
status. For example, the Russian exclave of Kaliningrad is not included in this report as it has the status of a
normal oblast.
11

It is worth noting that the Italian constitutional court established that the constitutional procedure
established for allowing individual municipalities to be attached to a different region (requiring a successful
referendum and a law of the parliament after consulting the regional assemblies involved) in practice does
not apply to special regions as their territories are identified by special statutes with constitutional rank.
Therefore, only the amendment of the autonomy statute by means of a constitutional law would allow
changing the borders of special regions (judgment no. 66/2007).
http://www.sznt.ro/en/index.php?option=com_content&view=article&catid=17%3Anemzetkoezidokumentumok&id=267%3Aregions-and-territories-with-special-status-in-europe&Itemid=23&lang=en
http://www.slobodnavojvodina.org/index.php?option=com_content&view=article&id=1767:eu-councilvojvodina-eu-region-with-specialstatus&catid=49:english&Itemid=62http://www.slobodnavojvodina.org/index.php?
option=com_content&view=article&id=1767:eu-council-vojvodina-eu-region-with-specialstatus&catid=49:english&Itemid=62