Autonomy and Demilitarisation in International Law: The Åland Islands in a Changing Europe [1 ed.] 904110271X, 9789041102713

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AUTONOMY AND DEMILITARISATION IN INTERNATIONAL LAW: THE ALAND ISLANDS IN A CHANGING EUROPE Edited by

Lauri Hannikainen & Frank Horn The Northern Institute for Environmental and Minority Law, University of Lapland, Rovaniemi, Finland

T Library of Congress Cataloging-in-Publication Data Autonomy and demilitarization in international law the Aland Islands in changing european context / editors, Lauri Hannikainen & Frank Horn ; the Northern Institute for Environmental and Minority Law. p. cm. Papers presented at a seminar held at Aland Folk High School. June 1993. Includes bibliographical references and index. ISBN 904110271X (alk. paper) 1. Aland (Finland)--International status. 2. Aland Chapter 3: Demilitarised and Neutralised Zones

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Constitutive documents establishing neutralised zones are generally formulated in a very succinct manner, stipulating that the geographical area in question may never be used for the conduct of military operations during wartime situations. The legal status of a neutralised zone thus differs from that of a demilitarised zone in that it is intended to apply during a wartime situation. The ratione materiae of a neutralised zone is to prohibit the conduct of military operations in a defined geographical area - and not the establishment and maintenance of military installations in the said area. Thus a neutralised zone may contain fortifications, barracks, etc. The ratione temporis of a neutralised zone is from the outbreak of a war (armed conflict) until the said area itself is subjected to an armed attack or until the war ends. One has to bear in mind here that the majority of the constitutive documents are of considerable age and use the term "war" in order to define their ratione temporis, while in modem State practice that term has largely been superseded by the more generic term of "armed conflict". 5 For the purposes of this study, a neutralised zone is defined as: a legal regime which prohibits military operations in a defined geographical area in armed conflicts. There are examples in European State practice of geographical areas having a status mixtus - i.e., being both demilitarised and neutralised at the same time. The rationale behind this is presumably to combine the potential peacetime confidence-building effect of demilitarisation with the wartime exclusion of the area from the conduct of military operations following from neutralisation. Another explanation for giving an area a status mixtus would be to negate the negative effects of demilitarisation on a military weak party - i.e., seeking to achieve a more reciprocal legal regime. 6 If a legal regime constituting a status mixtus is respected, then it is submitted that it is likely that there is a positive multiplier effect of the two notions. It is probable that a geographical area that contains no military installations will be perceived as constituting less of a military threat than an area with such installations. Of course, the opposite argument can also be made: the fact that an area does not contain any military installations may induce an aggressor to invade it. If the legal regime is not respected, then the multiplier effect is on the negative side since the demilitarisation will have prevented the sovereign State from taking adequate precautionary steps in order to defend the area in the eventuality that its neutralisation is not respected. Another question which merits a brief comment is the legal nature of the notions of demilitarised and neutralised zones. With respect to this question one can discern two positions in doctrine. One position would be to describe the legal nature of the notions as limitations on State sovereignty, 7 while another position would be to view the notions as limitations on the States' capacity to act - while not affecting the actual sovereignty. 8 Since the establishment of a demilitarised or neutralised zone does not affect the legal title to the said territory and does not affect the exercise of either prescriptive or enforcement jurisdiction, the present writer holds the view that

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demilitarised and neutralised zones are probably best seen as limitations on a States' capacity to act while not affecting the actual sovereignty over the area. Legal regimes comprising demilitarisation or neutralisation can be described as either bilateral or unilateral. A bilateral regime comprises territories on both sides of a frontier. A bilateral regime establishes, in general, a reciprocal legal regime in that the duties incumbent upon the parties are of a similar nature. A unilateral regime, on the other hand, consists of obligations resting upon a single State. Unilateral regimes often comprise an obligation to keep a strategically important location demilitarised or neutralised. They seldom contain any reciprocity with respect to the other parties to the legal regime. In general, the model of unilateral regimes prevails in European State practice, and it is mainly during the late 19th century that bilateral regimes were established. Finally it should be noted that the scholarly interest in the legal notions of demilitarised and neutralised zones seems to have declined significantly after the Second World War with one notable exception - namely the Aland Islands.

2. DEMILITARISED AND NEUTRALISED ZONES IN EUROPEAN STATE PRACTICE

2.1. Development of the Notions in State Practice The early examples of demilitarised zones had a relatively low level of ambition. The provisions laying down a demilitarised regime were often very succinctly formulated, lacking a stringent delineation of the exact nature and scope of the regime. Quite often a regime was established for the sole purpose of the dismantlement of a particular military installation; these installations were in most cases fortifications. Several regimes were related to fortifications which could control navigable rivers. 9 In general, the temporal validity of the early examples of demilitarisation seems to have been restricted to the actual dismantlement of the object in question. It was seldom that the regimes included provisions which inhibited construction of fortifications in the future; it seems as if the parties were more concerned with the fulfilment of an immediate exigency rather than establishing a regime for the future. 10 As the early usage of the notion of demilitarised zones was both geographically and temporally limited, it could perhaps be best described as object-oriented. The notion of demilitarised zones was expanded during the late 18th and early 19th centuries to cover a defined geographical area rather than a particular object. 11 The first examples of neutralised zones proper date from 1815. 12 Most of the examples from this period are demilitarisation regimes providing for the dismantling of fortifications which could menace communications usually major rivers or other maritime routes. The constitutive documents

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were still vaguely formulated as to the exact nature and extent of the legal obligation resting upon the territorial sovereign. Mechanisms for verification of the implementation of the obligations, and settlement of disputes related to the regimes, have not been found. The overwhelming majority of cases were the result of the conclusion of treaties. No purely unilateral act resulting in legal obligations has been identified. In the majority of cases the regime was established after the conclusion of an armed conflict where the victorious parties sought to impose demilitarisation as a castigation of the vanquished. The regimes established during the 19th century can be described as area-oriented rather than object-oriented. From 1905 onwards one can discern a trend where the notions of demilitarisation and neutralisation became more ambitious in the sense that the meaning of the notions was expounded more fully. Quite often the constitutive documents clarified the content of the legal regime in more stringent language. Furthermore, the geographical area over which the regime applied was in several cases quite large. Another interesting aspect was that, while a sizable number of regimes still had punitive motives, demilitarisation and neutralisation came to be viewed as a confidence-building measure. 13 The notion of demilitarisation played an important role in the peace treaties following the First World War. Many former enemy States were put under obligation to restrict military use of certain parts of their territory: very farreaching regimes were established. 14 The probable rationale behind these was to weaken the defensive capacity of the enemy States. 15 Several areas that shifted in, 16 or acquired, 17 sovereignty were also subject to demilitarisation and neutralisation. During the inter-war period, regimes were also established with a particular confidence-building purpose. 18 This period also evinced a new interesting feature, namely the establishment of international organisations which were given functions in relation to the implementation of demilitarisation and neutralisation regimes. 19 It seems as if the normative status of the notions of demilitarised and neutralised zones reached a peak in the period 1905-1939. After the Second World War the notion of demilitarised zones again became an element in the settlement of the conflict. The Allied Powers used the notion as a method to impose far-reaching regimes on the vanquished States. However, the deteriorating political climate in Europe had the effect that several regimes were only half-heartedly implemented if at all. States that were the object of the regimes sought to free themselves from the obligations - and, more importantly - other State parties to the constitutive documents often showed a lack of will to uphold the continued validity of the regimes. The notion of demilitarised zones has, in a relatively small numberof cases, been used in Europe after the Second World War. The United Nations has established a "non-military" zone on the island of Cyprus. 2 Furthermore, the UN, and more particularly its Security Council, has used the notion of demilitarised zones in its handling of the armed conflicts in the former

°

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Yugoslavia (i.e., the Vance Plan and the "safe areas" in Bosnia-Hercegovina). One interesting feature that comes to the fore when one is studying these recent examples of demilitarised zones is the fact that they seem to constitute a return to the earlier examples: namely that they seem to have a relatively low level of ambition and are explicitly stated as being only of a temporary nature. The relatively high normative status that characterised the legal notions of demilitarised and neutralised zones during the 19th and early 20th centuries seems to be somewhat tarnished today. This development seems to be particularly relevant in connection with the notion of neutralised zones. This notion emerged in European State practice in the early 19th century and lost its position in the early decades of the 20th century. The last geographical area that was neutralised in Europe was the Aland Islands in 1921. 2.2. The Contemporary Situation In my report to the Aland Peace Institute, a total of some 60 demilitarised or neutralised areas were identified. However, the large majority of these areas have lost this status today. A total of ten areas were identified as still retaining their legal status. Space will not allow us to comment on them in detail. However, some of the areas identified in the report as still being demilitarised and neutralised must be considered as controversial cases. The ten areas are listed below. Controversial cases are marked with an asterisk (*). Geographical area

State

Regime

Constitutive document

Huningue The A.land Islands Corfu and Paxoi Island Lemnos Island* Mytilene, Chios, Samos, Nikaria Islands Spitsbergen Pelagosa Islands Dodecanese Islands* Bulgaria/Greece UNPAs & "Pink Zones"*

France Finland Greece Greece Greece

demilitarisation demi!. & neutral. demi!. (neutral.) demilitarisation demilitarisation

Norway Croatia Greece Bulgaria Croatia

demi!. & neutral. demilitarisation demilitarisation demilitarisation demilitarisation

Paris, 1815 Paris/Geneva, 1856/ 1921 London, 1863, 1864 London/Lausanne, 1914/1923 London/Lausanne/Montreux, 1914/ l 923/ 1936 Paris, 1920 Paris, 1947 Paris, 1947 Paris, 1947 Vance Plan, 1992

The first controversial case is the Lemnos Island. Greece maintains that the demilitarised status of Lemnos, laid out by the London Declaration of 1914, 21 was implicitly removed by the 1936 Treaty of Montreux. 22 However, Turkey holds the view that Lemnos continues to have a demilitarised status. The 1936 Treaty of Montreux explicitly discharged Turkey of its obligation to keep the Bosporus and the Dardanelles demilitarised. Since it was considered necessary for the parties to the 1923 Lausanne Treaty to explicitly

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discharge Turkey of its obligation to keep the Bosporus and the Dardanelles demilitarised, it would seem somewhat inconsistent to maintain that the 1936 treaty would tacitly have had the same effect with respect to the obligation resting upon Greece to keep the Lemnos Island demilitarised. 23 Another controversial case is the legal status of the Dodecanese Islands in the Aegean Sea. These Islands were ceded to Greece by Italy following the Second World War. According to Article 14 of the 1947 Italian Peace Treaty, the Islands shall be and shall remain demilitarised. However, after the Turkish invasion of Cyprus in 197 4, Greece started to re-militarise the Islands. Turkey has protested against this, but Greece holds that it is entitled to do so as an exercise of its right to self-defence under Article 51 of the UN Charter. The demilitarisation of certain areas in the former Yugoslavia raises some questions as to their legal status. In connection with the cessation of hostilities between Croatia and the Federal Republic of Yugoslavia in January 1992, a UN-brokered peace plan was to be put into effect (the so-called Vance Plan). According to the original plan, areas in Croatia with a predominantly Serbian population would be designated "UN Protected Areas". However, when the parties accepted the Vance Plan, the territorial situation had changed, and territory which was not included in the original Peace Plan had now been occupied by the Serbs. These areas were included in the proposal under the designation "Pink Zones". According to the Peace Plan, the areas would be qualitatively and quantitatively demilitarised under the supervision of the United Nations Protection Force in Yugoslavia (UNPROFOR). Still, the implementation of the agreement was largely unsuccessful. The Federal Army handed over some of its heavy equipment to the irregular Serbian forces before they departed. In March 1994, Croatia and the Krajina Serbs concluded an agreement which stipulated that the frontline (contact zone) between them should be demilitarised. Finally, in August 1995, the Croatian army launched an offensive and regained control of the Krajina area. The question is whether the "UN Protected Areas" and "Pink Zones" can be considered to retain their legal status after the escalation of hostilities. According to the traditional view concerning the effects of an armed conflict on the continuation of demilitarised zones, this would not be the case. The UN Security Council, acting under Chapter VII of the Charter, has also used the notion of qualitative demilitarisation of defined geographical areas in the conflict in Bosnia. 24 A "heavy-weapon exclusion zone" has been established around Sarajevo. Furthermore, a number of encircled towns with a predominantly Muslim population have been declared "safe areas". Two of these areas, Srebrenica and Zepa, were occupied by Bosnian Serb forces in autumn 1995, while the remaining three, Sarajevo, Gorazde and Bihac, retained their status. While "safe areas" may provide protection for a beleaguered civilian population, the experience ofBosnia-Hercegovina shows their weaknesses in a situation where the implementation is insufficient. There

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have also been a number of reports concerning the use of UN-declared "safe areas" as staging areas for offensive military operations.

3. OBSERVATIONS ON SOME LEGAL QUESTIONS DISCUSSED IN DOCTRINE A number of geographical areas having the legal status of either demilitarised or neutralised zones have been subject to a change of sovereignty. Either a geographical area has been acquired by an existing State, or a new State has been formed. In some cases the new sovereign has continued to honour the legal status of the territory which was incumbent upon the former possessor. Here the question arises whether the new sovereign is obliged under international law to respect the legal status of the geographical area, or if it is for the new sovereign to decide upon grounds of political expediency rather than legal obligations. It has been argued that a new sovereign of a demilitarised or neutralised zone is under an obligation to respect the legal status of the area under the doctrine of either "international servitudes" or objective (territorial) regimes. In connection with demilitarised and neutralised zones, the notion of international servitudes has been discussed in relatively few instances. During the negotiations on the dissolution of the union between Sweden and Norway in 1905, a Norwegian delegate stated that the proposed demilitarisation should not be viewed as a servitude resting upon Norway. 25 Regarding Aland, Sweden argued in 1920-21 that the recently sovereign State of Finland was under a duty to respect the demilitarisation of Aland under the 1856 Peace Treaty. 26 It should be noted that neither case-law nor doctrine unequivocally supports the view that the notion of State servitudes is to be considered part of contemporary international law. In place of the doctrine of State servitudes, attention has been focused on State succession in relation to treaty obligations and on the notion of objective (territorial) regimes. According to the tabula rasa principle, treaty obligations resting upon the original State are not passed on to the successor State. However, it has been maintained that there exist exceptions to this general principle. One of these exceptions is described as "objective regimes." 27 Objective regimes constitute treaty-obligations relating to a geographical area and lay down rights for the benefit of third States. As prima facie examples of objective regimes demilitarised zones are often referred to. 28 It is relatively seldom in State practice that the question of the continued validity of a demilitarised or neutralised regime has arisen. With respect to bilateral regimes it seems generally to be the case that these are not considered to be valid when the change of sovereignty takes place in the geographical area in question. The situation is, however, somewhat different with multilateral regimes. Here one can find a few examples of geographical areas which have been considered to retain their demilitarised or neutralised status

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despite a change of sovereigns. Four cases are identifiable: the Provinces of Chablais and Faucigny in Savoy, Huningue in France, the Aland Islands and the Pelagosa Islands. The relevant question here is whether the new sovereign respects the demilitarised or neutralised status in the belief that it is under an obligation to do so, or whether the continuance of the regime can be explained by considerations of political expediency. If we can discern that the underlying reason for a State to respect the continued validity of a demilitarisation or neutralisation regime is a perceived obligation to do so, then the next question is which legal principle - servitude, objective regime or other - was considered relevant. As regards the Provinces of Chablais and Faucigny, 29 in 1860 the said Provinces were transferred from Sardinia to France. 30 According to the 1860 treaty it was recognised that "the King of Sardinia cannot transfer the Neutralised Parts of Savoy, except on the conditions which he himself possesses them". Consequently, the retainment of the legal status of the provinces was not the result of any application of the above-mentioned principles, but according to the tenet that no possessor can put a new possessor in a better legal situation than that which the original possessor had (nemo plus Juris transferre potest quam ipse habet). With respect to the town of Huningue, which still retains its demilitarised status, there is not enough information available to find out the underlying reasons for both Germany and France to continue to respect its legal status. When Finland separated from Russia, it claimed that it was not bound to respect obligations entered into by Russia - including the demilitarisation regime of the Aland Islands. The question of the legal status of Aland was finally settled in 1921, when the League found that the 1856 regime was still binding upon Finland, as it was concluded in the European interest - i.e., constituted an objective regime. The Pelagosa Islands in the Adriatic Sea were ceded to Yugoslavia from Italy under the 1947 Peace Treaty. The said Treaty stipulated that Yugoslavia was to keep the Islands demilitarised. The Islands came under Croatian sovereignty when the Federal Republic of Yugoslavia was dissolved. When Croatia became independent, its Government declared that it succeeded to all treaties which were concluded by the former Federal Republic of Yugoslavia; i.e., it did not seek to apply the tabula rasa principle. This general declaration would also comprise the obligation to keep the Pelagosa Islands demilitarised according to the 1947 Peace Treaty. From the study of State practice one can conclude that there is slight support for the contention that demilitarised and neutralised zones are prima facie to be considered in force in relation to a new sovereign of the territory as an international servitude or an objective regime. Examples can also be found in State practice of a demilitarised or neutralised regime being discontinued by a State without the territory in question being transferred. There are some cases where a State has put forward the argument that it has been released from treaty obligations to keep an area

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demilitarised or neutralised, due to a fundamental change of circumstances, i.e., invoking the principle of rebus sic stantibus. One of the first instances where a State successfully managed to release itself from obligations under a treaty by reference to a fundamental change of circumstances is directly relevant for this study. In 1860 Russia claimed that it was no longer required to honour the neutralisation of the Black Sea under the provisions of the 1856 Paris Peace Treaty. In the aftermath of the First World War, France claimed that the neutralisation of the provinces of Chablais and Faucingy was terminated due to the change of circumstances. Furthermore, Italy considered itself released from its obligations with respect to the demilitarisations contained in the 1947 Paris Peace Treaty due to a fundamental change of circumstances. When Russia and France claimed that the legal regimes pertaining to the Black Sea and the provinces of Chablais and Faucigny should be terminated, they did not act purely unilaterally, as they sought to achieve the termination through a new treaty with the parties to the constitutive document. Italy, on the other hand, never sought to re-negotiate the Peace Treaty, but declared unilaterally that it was released from its obligations. It is often claimed that demilitarised and neutralised zones have a distinct confidence-building effect. That this is the case is corroborated in State practice. However, in a substantial number of cases the rationale behind the establishment of a regime was a desire to castigate a State which had been defeated in an armed conflict. This was imposed upon the State concerned by means of provisions in a peace treaty. If such a dictatorial regime had any confidence-building effect whatsoever, then it was in a short perspective. For a regime to acquire a truly confidence-building effect, it should be the result of negotiations on a reciprocal basis where no party seeks to acquire a discriminating result. In European State practice demilitarised and neutralised zones have, more often than not, been used as a vehicle to castigate a vanquished State rather than as a confidence-building measure. Finally, while not a legal question, the effectiveness of demilitarised and neutralised zones today must be viewed in light of the development of modem military technology. Modem warfare is in several respects entirely different from the situation which prevailed when the notions of demilitarised and neutralised zones were developed. While a demilitarised zone of a relatively modest area in the 19th century could be described as establishing a sort of cordon sanitaire between two opposing armies, the range of modem armoury largely negates the effect of a demilitarised area of a corresponding size today. In the present situation a demilitarised zone must be of considerable size in order to establish an effective bar against military operations. For instance, in the aftermath of the Napoleonic Wars, the allied powers noted that the fortifications of Huningue had constantly been an object of uneasiness to the town of Bale (Basel). They agreed among themselves to demolish the fortifications of Huningue, and to prohibit the French from re-establishing them" at any time, and not to replace them by any other fortifications at a

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distance of less than that of three leagues from the town of Bale". It is fair to assume that no possible French fortifications around the city of Huningue would cause any apprehension among the population of Basel today. Since France possesses long-range missiles and submarine-launched ballistic missiles capable of carrying nuclear weapons, it would not be necessary to launch an attack on the city of Basel from a distance of less than "three leagues". From a military perspective, the value of the prohibition against erecting fortifications around Huningue must be considered insignificant. The rationale behind the continuation of the regime could probably be explained by reasons of political expediency. While the effect of qualitative demilitarisations might be debatable in the light of the development of modem military technology, this would not seem to be the case with quantitative demilitarisations. A demilitarised zone laying down quantitative reductions of troops may have an important function in defusing tensions along a disputed border where recurrent incidents threaten to escalate a dispute. 4. THE LEGAL STATUS OF THE &AND ISLANDS IN A EUROPEAN PERSPECTIVE

As we noted from the enumeration of existing demilitarised and neutralised zones in Europe, the Aland Islands is among the oldest locations that retains this legal status today. In this last section some aspects of the legal status pertaining to Aland will be discussed in relation to other examples in European State practice. The demilitarisation of Aland in 1856 took place in the general setting of the termination of the Crimean War. The Aland Islands was not the only area which was put under a special legal regime. The 1856 Paris Peace Treaty also provided for the neutralisation of the Black Sea. This neutralisation remained, however, in force for only 14 years. The 1856 demilitarisation of Aland can be categorised as qualitative. Russia was forbidden to construct fortifications or to maintain or construct military or naval establishments. This qualitative demilitarisation was in line with other examples from the same period. For example, the 1829 Peace Treaty of Adrianople, between Russia and Turkey, provided for the dismantling of existing fortifications. Likewise, the 1878 Peace Treaty of Berlin provided for the destruction of Ottoman fortifications in Bulgaria. A majority ofregimes from this time-period shared one important aspect with the 1856 Paris Treaty regarding the demilitarisation of the Aland Islands: namely, they were imposed upon a vanquished State by a peace treaty. In the 19th century this seems to have been the general function of demilitarisations and neutralisations: to impose conditions which would weaken the military potential of the vanquished State - presumably as a safeguard against renewed hostilities. As was noted above, the provisions of the 1856 Peace Treaty were not particularly stringent. This was in line with other treaties of the period. In

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generally worded provisions, the addressee of the regime was required to perform a specific act. Most of the examples related to the dismantling of existing fortifications in combination with the prohibition against erecting new fortifications; i.e., they were qualitative in nature. It was difficult to find examples of quantitative demilitarisations. One exception to this is the unilateral declaration made by Turkey, in December 1832, that it would not deploy any troops on the Island of Samos in the Aegean Sea. 31 This is, furthermore, the only example found where a State has been considered to be under a legal obligation to honour a demilitarisation due to a purely unilateral act. If we compare the 1856 Aland demilitarisation with the regime established in 1921, we find some notable differences. First of all, demilitarisation and neutralisation were employed in 1921 outside the setting of a peace settlement following a war - as was the case in 1856. The rationale behind the introduction of the expanded demilitarisation and the neutralisation of Aland may partly be explained by a desire to mitigate the concerns of Sweden ensuing from the decision by the League to prescribe sovereignty over the Islands to Finland. State practice shows several examples of allocations of sovereignty over disputed areas coupled with determinations that the geographical area in question should be demilitarised or neutralised. It seems as if it is conceived that a loss of territory is easier to accept if the new possessor is under an obligation to keep the territory demilitarised or neutralised i.e., not being in a position to use the newly acquired territory as it pleases. Another distinct feature of the 1921 regime is that it is laid down in a multilateral treaty and incorporates a guarantee from the contracting States to uphold the regime in the eventuality that some State violates the legal status of the Islands. The Aland Islands is today the only area in Europe which is both demilitarised and neutralised and where the population has an autonomous status. However, from the empirical material at least three other locations have been found which have been demilitarised or neutralised and where the population has had autonomy. First, in 1815 Austria, Russia and Prussia concluded a treaty which stipulated that the Free City of Cracow was to be internationalised and neutralised. 32 This status was reiterated in Article VI of the Final Act of the Congress of Vienna. The population of the Free City obtained autonomy. 33 The legal status of the Free City of Cracow was discontinued in 1846. 34 Second, as a means of reparation after the First World War, the Treaty of Versailles stipulated that France was given the right to exploit coal mines in the district of Saarland, while Germany retained sovereignty over the area. According to Article 30 in the Annex to Article 50 of the Treaty, Germany was forbidden to maintain a military service in the area or to construct fortifications. The population of Saarland was given autonomy. 35 After the Second World War France retained its influence over Saarland. Saarland continued to be an autonomous region, but in economic affairs it was affiliated with France. This special status was discontinued in 1957 after a plebiscite. The

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third case of an area being both autonomous and demilitarised was the Free City of Danzig. 36 The legal status of the Free City was established through the Treaty of Versailles. According to Article 5 of its Constitution "the Free City of Danzig cannot without the previous consent of the League of Nations, in each case, 1) serve as a military or naval base; 2) erect fortifications; 3) authorise the manufacture of munitions or war material on its territory". 37 The Free City lost its legal status in the aftermath of the Second World War. It is also noticeable that of the ten remaining demilitarised or neutralised zones in Europe today, seven consist of islands. Together with Spitsbergen, Aland is the only remaining status mixtus in Europe. A distinct feature concerning the legal status of the Aland Islands is the high esteem it holds among the local population. Proposals to alter the legal status of Aland have been met with resolute opposition among the population. While the population views the autonomous status and the restrictions on military uses of the Islands as an indivisible whole, the actual legal linkage between the two is not as strong as was the case with some of the other examples of demilitarised and neutralised zones in which the population had autonomy. This interest in the maintenance of the legal regime was hardly strongly present in many other examples where the population appear to have been more or less indifferent to the maintenance of the legal regime - if they even knew at all of its existence. 38 NOTES 1

See the Italian Peace Treaty, 1947, UNTS, Vol. 49. In Annex XIII (D) the notion was defined as follows: "For the purpose of the present Treaty the terms "demilitarisation" and "demilitarised" shall be deemed to prohibit, in the territory and territorial waters concerned, all naval, military and military air installations, fortifications and their armaments; artificial military, naval and air obstacles; the basing or the permanent or temporary stationing of military, naval and military air units; military training in any form; and the production of war material. This does not prohibit internal security personnel restricted in number from meeting tasks of an internal character and equipped with weapons which can be carried and operated by one person, and the necessary military training of such personnel." 2 A learned reader will probably consider that my formulation is too traditional in not taking into account the important development which has taken place with regard to zonal disarmament with the establishment of nuclear weapon free zones (NWFZs). There the notion has been expanded to cover not only the territory of a State, but also regions. However, since the development of NWFZs is largely a non-European development, it can be argued that a study regarding Europe can be based upon the traditional definition. The proposals to establish NWFZs in Europe (e.g. a nuclear weapon free corridor in Central Europe and a nuclear weapon free zone comprising the Baltic Sea) have been unsuccessful. 3 Compare the 1920 Peace Treaty between Finland and Russia (FTS No. 1/1920), which stipulated in Article 15(2) that Finland was prohibited from deploying artillery pieces on the southernmost part of the Carelian Isthmus which were capable of firing beyond the territorial sea. 4 It should also be noted that the notion of demilitarised zones was introduced in Article 60 of the 1977 Additional Protocol I to the 1949 Geneva Conventions, intended to apply during wartime. See Best, 1994.

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See Brownlie, 1963, pp. l 9ff; Schindler, 1979; Greenwood, 1987. For example, Sweden demanded that a demilitarised zone be established along the southern part of the common border with Norway during the 1905 crisis in connection with the adjournment of the union between the two States. This demand caused apprehension in Norway since the establishment of a demilitarised zone would lead to the dismantlement of the Norwegian border fortifications - its only defence against the, at least numerically, superior Swedish army. Instead, the Norwegians proposed that a neutralised zone be established along the southernmost part of the common border. The negative effect of dismantling fortifications, according to a demilitarisation regime, would consequently be balanced by the positive effect of barring the Swedish army from using that area in wartime situations, as a result of the neutralisation regime. As a result of these negotiations, a partly demilitarised and neutralised zone was established through the 1905 Karlstad Convention. (See Wilhlstrand, 1953) The regime was discontinued by the parties through a bilateral treaty in 1993. (See Regeringens proposition 1992/93: 164 om upphavande av 1905 ilrs konvention mellan Sverige och Norge angilende neutral zon, befastningars nedlaggande m.m.) The bilateral treaty is published at STS No. 52/1993. 7 See Bjorkholm & Rosas, 1990, p. 16; Bailey, 1980, p. 520. 8 Strupp describes their legal nature as "Beschrankung der Staatlichen Handlungsfahigkeit" (Strupp, 1933, p. 193). 9 E.g. the Peace Treaty of Munster of January 30, 1648, prescribed the dismantling of fortifications on the river Scheidt. According to a peace treaty concluded between the Ottoman Porte and Austria in 1699, Austria was prohibited from erecting fortifications along the rivers of Maros and Theiss. 10 The first example of a regime stipulating destruction of existing fortifications coupled with the prohibition of the construction of new fortifications was the regime laid down in the Peace Treaty of Munster of October 24, 1648. According to Article LXXXIV, no fortifications were to be erected on the Rhine from Basel to Philipsburg. See Israel, 1967, Vol. I, p. 33. 11 E.g. in 1806 a border region in Tyrolia was demilitarised according to provisions in a peace treaty between France and Bavaria. (See Verzijl, 1970, Vol III, p. 504.) 12 The areas in question were the Free City of Cracow, neutralised through a treaty between Austria, Prussia and Russia in 1815, and the French provinces of Chablais and Faucingy, which were neutralised in accordance with Article XCII of the 1815 Final Act of the Congress of Vienna. 13 One of the first instances where the notions seem to have been used for a genuinely confidence-building purpose was the regime established between Sweden and Norway according to the 1905 Karlstad Convention. 14 An obvious example of a far-reaching regime would be the 1919 Treaty of Versailles, which stipulated that several strategically important areas in Germany should be demilitarised. Germany was prohibited from constructing fortifications in the Rhineland (Article 42). All existing fortifications were to be dismantled (Art. 180). Likewise, Germany was inhibited from constructing fortifications in Saarland (Annex to Article 50, Article 30). According to Article 115, the strategically important islands of Helgoland and Dune were to be demilitarised. Qualitative limitations were also imposed on Germany with respect to fortifications along its Baltic Sea coast (Articles 195, 196). The text of the Treaty is reprinted in: Gesetz Uber den Friedensschluss zwischen Deutschland und den allierten und assoziierten Machten, Reichs Gesetzblatt 1919, nr 140. 15 See Tanner, 1992, p. I. 16 In September 1919 Czechoslovakia was recognised as a sovereign State. Prior to this it was part of Austria-Hungary. According to Article 56 of the Peace Treaty of St. Germain-enLaye, Czechoslovakia was prohibited from constructing any fortificafions on the right bank of the Danube south of Bratislava. Treaty of Peace between the Allied Powers and Austria, St. Germain-en-Laye, 1919, reprinted in Israel, 1967, Vol. III, p. 1558. 6

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17

In 1920 the Norwegian claim to sovereignty over Spitsbergen was recognised in a convention. The same convention stipulated that Norway was forbidden to construct any naval base or fortification in the area, which was also neutralised. This regime was qualified by any acts that Norway might be obliged to take under its obligations as a member of the League. Traktat angi!ende Spetsbergen, Paris, 1920, STS No. 25/1924. See 0streng, 1974; Broms, 1979. 18 In order to avoid border incidents, the Soviet Union and Finland concluded a treaty in ]922 which stipulated both quantitative and qualitative demilitarisation along the common border. FTS No. 8/1922. 19 I.e. the 1921 Convention relative a la Non-fortification et a la Neutralisation des fles d'Aland, which stipulates in Article 7 that the Contracting Parties shall carry out decisions made by the Council of the League of Nations with respect to the guarantee that the Islands should never constitute a military threat. See Annex 2 in this book. 20 See The Blue Helmets, 1990, p. 306. 21 See Ronzitti, 1985, p. 40. 22 Convention regarding the Regime of the Straits, Signed at Montreux, July 20, 1936. LNTS, 1936 (No. 4015). 23 See Bring, 1987, p. 306. 24 See Security Council Resolutions 819 (1993) and 824 (1993). 25 See Wilhlstrand, 1953, p. 95. 26 See Fagerlund, 1993, p. 83. 27 Some support for the exception of objective regimes from the general application of the tabula rasa principle can be found in the 1978 Vienna Convention on State Succession with Respect to Treaties (not yet in force). Article 12 of the Convention prescribes that State succession shall not affect the validity of territorial rights which have been established through a treaty for the benefit of another State. See Brownlie, 1990, p. 667. 28 There seems to be a presumption that demilitarised zones are concluded in the European interest and consequently have third-party effects. However, it is extremely seldom that this is explicitly recognised in constitutive documents. Only one example apart from the Aland Islands can be identified. In the 1878 Berlin Peace Treaty between Russia and the Ottoman Empire, it was stipulated that all existing fortifications on the Danube from the Iron Gates to its mouths should be dismantled and that no new ones should be constructed. This regime was "recognised as of European interest" in so far as it assured freedom of navigation on the river. Re~rinted in Hurst, 1972, p. 551. 2 These Provinces were neutralised through Article XCII in the 1815 Final Act of the Congress of Vienna. Reprinted in Sandgren, 1910. 30 Treaty between France and Sardinia for the Annexation of Savoy and Nice to France, 1860. Reprinted in Hurst, 1972, p. 403. 31 See Verzijl, 1970, Vol. III, p. 505. 32 See Verzijl, 1970, Vol. III, p. 504. 33 See Ydit, 1961, p. 101. 34 Convention between Austria, Prussia and Russia, uniting the Free City of Cracow to the Austrian Monarchy, Cracow, 1846, reprinted in Hurst, 1972, p. 274. 35 See Ydit, 1961, p. 44; Hannum, 1990, pp. 389ff. 36 See Ydit, 1961, p. 185; Hannum, 1990, p. 375. 37 See Hannum, 1993, p. 605. 38 Compare the situation when the demilitarised and neutralised zone along the SwedishNorwegian border, according to the 1905 Karlstad Convention, was dissolved in 1993.

BIBLIOGRAPHY Ahlstrom, Christer, 1995. Demilitariserade och neutraliserade omri!den i Europa. Mariehamn: A.lands Fredsinstitut.

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Bailey, Sydney D., 1980. 'Nonmilitary Areas in UN Practice', AJIL, pp. 499-524. Best, George, 1994. War & Law Since 1945. Oxford: Clarendon Press. Bjorkholm, Mikaela, & Rosas, Allan, 1990. Alandsoamas demilitarisering och neutralisering. Abo: Abo Akademis F6rlag. Bring, Ove, 1987. Nedrustningens folkratt. Stockholm: Norstedts forlag. Broms, Bengt, 1979. 'The Demilitarization of Svalbard (Spitsbergen)'. In Hakapaa (ed.), Essays in Honour of Erik Castren. Helsingfors: Finnish Branch of the International Law Association, pp. 6-18. Brownlie, Ian, 1963. International Law and the Use of Force by States. Oxford: Oxford University Press. Brownlie, Ian, 1990. Principles of International Law. 4th ed. Oxford: Oxford University Press. Delbrtick, Jost, 1982. 'Demilitarization'. In Encyclopedia of Public International Law, Instalment 3, pp. 150-152. Fagerlund, Niklas, 1993. Alands folkrattsliga status och EG. Mariehamn: Meddelanden friln Alands Hogskola, nr. 3. Greenwood, Christopher, 1987. 'The Concept of War in Modem International Law', International and Comparative Law Quarterly, pp. 283-306. Hannum, Hurst, 1990. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights. Philadelphia: University of Pennsylvania Press. Hannum, Hurst, 1993. Documents on Autonomy and Minority Rights. Dordrecht: Martinus Nijhoff Publishers. Hurst, Michael, 1972. Key Treaties for the Great Powers 1814-1914. 2 Vols. Newton Abbot: David & Charles. Intemationella avtal och dokument r6rande Aland 1856-1992, 1993. Mariehamn: Alands kulturstiftelse. Israel, Fred D., 1967. Major Peace Treaties of Modem History 1648-1967. 4 Vols. New York: Chelsea House Publishers. Marshall-Cornwall, J.H., 1935. Geographic Disarmament: A Study of Regional Demilitarization. London and Oxford: University Press. Regeringens proposition 1992/93: 164 om upphavande av 1905 1\rs konvention mellan Sverige och Norge angilende neutral zon, befastningars nedlaggande m.m. Ronzitti, Natalino, 1985. 'Demilitarization and Neutralization in the Mediterranean', Italian Yearbook of International Law, pp. 33-54. Sandgren, Carl, 1910. Recueil des Traites, Conventions et autres actes diplomatiques de la Suede. Stockholm: Kngl. boktryckeriet. Schindler, Dietrich, 1979. 'The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols', Recueil des Cours, Vol. 163, pp. 125-163. Strupp, Karl, 1933. Neutralisation, Befriedung, Entmilitarisierung, Handbuch der Volkerrechts. Zweiter Band, Sechste Abteilung. Stuttgart: Verlag von W. Kohlhammer. Tanner, Fred (ed.), 1992. From Versailles to Baghdad: Post-War Armament Control of Defeated States. New York: UNIDIR. The Blue Helmets: A Review of United Nations Peace-Keeping, 2nd ed., 1990. United Nations. Verosta, Stephan, 1982. 'Neutralization'. Jn Encyclopedia of Public International Law, Instalment 4, pp. 31-34. Verzijl, J.H.W., 1970. International Law in Historical Perspective. Leyden: A.W. Sijthoff. Wilhlstrand, Arne, 1953. Karlstad konferensen 1905, Protokoll och aktstycken. Uppsala: Almqvist & Wiksell. Ydit, Meir, 1961. Internationalised Territories: From the 'Free City of Cracow' to the 'Free City of Berlin'. Leyden: A.W. Sythoff. 0streng, Willy, 1974. 'Svalbards situasjon i storpolitisk perspektiv', Intemasjonal Politikk, pp. 679-701.

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LAURI HANNIKAINEN

Chapter 4: The International Legal Basis of the Autonomy and Swedish Character of the Aland Islands

1. THE SETTLEMENT OF THE ALAND QUESTION AT THE LEAGUE OF NATIONS After Finland separated from Russia in late 1917, the question arose as to the fate of the Swedish-speaking Aland Islands. Aland had been a part of the autonomous Grand Duchy of Finland under the Tsar of Russia since 1809, when Sweden had lost Finland and Aland to Russia. It seemed clear that when Russia lost Finland it would also lose Aland. Finland was eager to win recognition from European States of its sovereignty over Aland. However, the population of Aland was nearly unanimously for Aland's annexation with Sweden, which the Alanders regarded as "the motherland". A dispute arose between Sweden and the newly independent Finland over the status of the Aland Islands. Sweden called upon Finland to recognise in respect of the principle of self-determination - the right of the Alanders themselves to determine their future status. Finland demanded in forceful terms the recognition of its sovereignty over Aland. The two States agreed to submit their dispute to the Council of the League of Nations ultimately for the Council's binding decision. 1 At the time of the Council's decision both State parties to the dispute were members of the League of Nations. The League Council's Decision (Resolution), adopted on 24 June 1921 2 , was favourable to Finland. The Council, being aware of Finland's de facto sovereignty over Aland and Finland's firm behaviour in the dispute, recognised Finland's de jure sovereignty over Aland over the protests of Sweden and Aland.

L. Hannikainen and F. Horn (eds.), Autonomy and Demilitarisation in International Law:

The Aland Islands in a Changing Europe, 57-83. © 1997 Kluwer Law International. Printed in the Netherlands.

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During the Council's handling of the Aland question the Finnish Government had suspicions that the Council's final solution might not be in favour of Finland. To improve its chances before the Council, in 1920 Finland granted autonomy to Aland in a special Autonomy Act (No. 124/1920). The Act provided for a Legislative Assembly (regional parliament), with limited legislative powers, and a Government for the Region of Aland. Swedish was made the sole official language of Aland; Swedish was also the language of all correspondence between the Aland administration and the State authorities. The Alanders rejected the autonomy scheme, but clearly the 1920 Autonomy Act made a positive impression on the League Council. Notwithstanding the 1920 Autonomy Act, the League Council, to appease Sweden and Aland, in its Resolution of 24 June demanded from Finland certain improved guarantees for the autonomy and especially for the Swedish character of Aland: The new guarantees to be inserted in the autonomy law should specially aim at the preservation of the Swedish language in the schools, at the maintenance of the landed property in the hands of the Islanders, at the restriction, within reasonable limits, of the exercise of the franchise by new-comers, and at ensuring the appointment of a Governor who will possess the confidence of the population. The Council preferred not to formulate the guarantees in detail. It "recognised that these guarantees will be more likely to achieve their purpose, if they are discussed and agreed upon by the Representatives of Finland with those of Sweden, if necessary, with the assistance of the Council". Should these efforts fail, the Council declared that it would itself fix the guarantees. The Council went on to say that, in any case, it would see to the enforcement of the guarantees. Indeed, the representatives of Finland and Sweden proceeded without delay to negotiate on the formulation of the guarantees dictated by the Council. The negotiations were conducted under the chairmanship of a member of the Council, Mr. Hymans from Belgium. Only three days after the adoption of the Council's Resolution, on 27 June 1921, Mr Hymans submitted to the Council the text agreed upon by the representatives of Finland and Sweden. 3 The agreed text contained seven points: 1. Finland undertook to introduce into the Autonomy Act the following guarantees: 2. Aland was not in any case obliged to support any other schools than those in which the language of instruction was Swedish. In the State schools instruction was to be given in Swedish. The Finnish language could not be taught in those primary schools which were supported or subsidised by the State or by the communes, without the approval of the commune concerned.

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3. When real estate situated in Aland was sold to a person who was not legally domiciled in Aland, any person legally domiciled in Aland, or the Aland Government, or the commune in which the estate was situated, had the right to redeem the estate. Any dispute between the acquirer and redeemer as to the purchase price was to be settled in court. 4. Immigrants to Aland who enjoyed Finnish citizenship could acquire provincial and communal franchise in Aland only after five years of legal domicile therein. Persons who had been legally domiciled in Aland for five years were not to be considered immigrants. 4 5. The Governor of Aland was to be named by the President of Finland in agreement with the President of the Legislative Assembly of Aland. 6. Aland had the right to use for its own needs 50 per cent of the revenues of the land tax. 7. The League Council had the authority to watch over the application of the guarantees. Finland had to forward to the Council, with its observations, any claims of the Legislative Assembly of Aland in connection with the application of the guarantees. The Council was to consult, in juridical questions, the Permanent Court of International Justice. The League Council approved the text agreed upon by the representatives of Finland and Sweden, and decided to annex it to its Resolution of 24 June. Within the minorities protection system of the League of Nations, the protection afforded to Aland could be characterised as "far-reaching". 5 Finland faithfully incorporated the provisions of the text of 27 June 1921 into its domestic legislation - not in the 1920 Alandic Autonomy Act but in a new Alandic Guarantees Act (No. 189/1922). Both the Autonomy Act and the Guarantees Act had a strong status in the constitutional system of Finland. They could not be amended or repealed, nor could exceptions be made to them, by the Finnish State without the consent of the Legislative Assembly of Aland. Any amendment, repeal or exception had to be enacted by the Finnish Parliament following the same procedure as that required for the amendment of the Finnish Constitution. These constitutional guarantees of the Acts regulating Aland's autonomy have remained in Finnish law and will evidently do so in the future as well. Formally, it was not the whole autonomy system of Aland which came under the supervision of the League Council, but only those guarantees which were stipulated in the Council's Resolution of 24 June 1921 and formulated in greater detail in the text agreed upon by Finland and Sweden on 27 June. On the other hand, the supervision of the League also extended indirectly to those provisions of the autonomy system which were closely connected to the above-mentioned guarantees. 6 In late autumn of 1921 the Convention on the Demilitarisation and Neutralisation of the Aland Islands was concluded by ten interested States under the coordination of the League of Nations. After that it could be said that the

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new status of Aland had been established internationally by, or at least under the coordination of, the League of Nations. It was the Council of the League which was entrusted with supervising respect for Aland's international status. Aland's new status proved to be of lasting character. It gave something beneficial to all the parties involved: confirmed Finland's sovereignty over Aland, gave assurances to Sweden against military action from Aland toward Sweden, and created international guarantees in support of Aland's autonomy and Swedish character. The Alandic Parliament had the right to send complaints to the League Council via the Finnish Government, if it considered that Finland had violated the guarantees, but no such complaints were sent by the Alandic Parliament in the 1920s or 1930s. Even though the years of the existence of the League of Nations have been the most difficult years of the seventy-five-year-old autonomy of Aland (nationalistic feelings were quite high in Finland), the Finnish Government and the leading organs of Aland were able to settle their disputes without the involvement of the Council.7 Apparently the existence of the guarantees binding Finland internationally and the Council's supervisory powers had a moderating effect on the Finnish Government. 8

2. ALAND'S STATUS AFTER THE COLLAPSE OF THE LEAGUE OF NATIONS The League of Nations lost the ability to fulfil its tasks towards the end of the 1930s. After World War II the League was replaced by the United Nations (UN) and was dissolved in 1946. The League of Nations had supervised a number of international arrangements for the protection of minorities. In the post-World War situation it became evident that virtually the entire minorities protection system supervised by the League had collapsed. The UN did not succeed to the League in this matter and assume its supervisory functions. 9 The UN Secretariat published in 1950, upon the initiative of the Economic and Social Council, a report on the legal validity of the undertakings concerning the protection of minorities placed under the supervision of the League of Nations. The conclusion of the Report was that the whole minorities protection system had ceased to exist because of rebus sic stantibus, i.e., a fundamental change of circumstances. However, the Report recognised that States might have assumed undertakings not only towards the League, but also towards each other, and that some of the latter obligations might have remained in force. The Report found one clear example of such an effect: Finland's obligation towards Sweden to respect the guarantees concerning Aland, assumed by Finland in 1921. It was the interpretation of the Report that the text presented by Mr Hymans to the League Council on 27 June 1921, as a text agreed upon by the negotiators of Finland and Sweden, constituted

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an agreement binding in international law. The Report concluded concerning Aland: No change of circumstances has occurred. The special regime for the Aaland Islands concerns particularly Sweden, Finland and the population of the Aaland Islands .... Finland's obligation towards Sweden still exists. 10 The view of the UN Secretariat's Report was similar to that of Sweden, i.e., the view assumed by Sweden in the 1940s. On the other hand, after the events of24-27 June 1921 the negotiators of both parties to the "agreement" - Finland and Sweden - had expressed concurring opinions to a different effect. 11 It had been the opinion of Finland that it obligated itself only to the decision of the League Council; the text presented on 27 June to the Council of the League was only an unofficial common understanding between the negotiators of Finland and Sweden. In the process before the Council it was Finland's (successful) policy to exclude Sweden from getting any specific role in the supervision of the guarantees. Regarding Sweden in 1921, one might have expected that Sweden would have stressed after the Council's solution that, in its opinion, Finland had assumed obligations not only towards the League but also towards Sweden. However, Sweden was dismayed by the Council's recognition of Finland's sovereignty over Aland and concerned with the bitterness of the Alanders. Sweden did not want to publicly admit that it had concluded with Finland a binding agreement expressly confirming its assent to the denial of the right of external self-determination of the Alandic people. It was better to place the responsibility on the Council. It was the wish of the Swedes that the solution reached by the Council in June 1921 would not become the final solution on the international status of Aland, but that in later years the matter would be taken up again by the Council for revision. Thus the negotiators of Sweden pronounced publicly that Sweden had not concluded any binding agreement with Finland. 12 The views of both Finland and Sweden that they had not concluded a binding agreement - i.e., treaty between themselves was also reflected domestically. Neither in Finland nor in Sweden was the agreement included in the register of treaties in force. When Finland enacted the 1922 Alandic Guarantees Act, the text presented to the League Council on 27 June was not treated as a treaty by Finnish State organs. It was also the view of Finnish legal experts that Finland had not concluded a treaty with Sweden. 13 Why, then, did Sweden reverse its view in the 1940s? When it became evident that the League of Nations would no longer be able to supervise the respect for Aland's international status, Sweden became worried about the fate of Aland. During World War II Finland's independence was in danger, and even after the War it was far from secure. After having been subjected to a war of aggression by the Soviet Union in 1939, Finland became a co-belligerent

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with Nazi Germany in 1941. In the settlement of World War II Finland was treated as a co-belligerent of the defeated Axis powers and was in practice "under the heel" of the Soviet Union. In Sweden's opinion, it would best serve Aland if Sweden emphasised that it had a legal interest in speaking for the preservation and respect of Aland's international status. Thus, according to Sweden, there remained in force between Sweden and Finland a binding agreement from June 1921, under which Finland had an obligation to Sweden to respect Aland's autonomy and Swedish character. The Alanders supported Sweden's new position, since with the collapse of the League of Nations they had lost the possibility to make complaints to an international organ. Finland could have contested Sweden's new interpretation and argued that, with the breakdown of the minorities protection system of the League of Nations, Finland's obligations concerning Aland's autonomy and Swedish character ceased to exist. However, Finland did not do that, but, on the contrary, made it known that it would respect its international obligations. 14 It was in the interest of Finland, which had been labelled a co-belligerent of Nazi-Germany and was under pressure from the Soviet Union, to stress respect for international law - both Finland's rights and obligations. Finland did not comment upon Sweden's view concerning the existence of a binding agreement of 1921. It was apparent that Finland regarded the decision of the League Council as the basis of its obligations. Finland would even have been ready to submit its obligations to a new international supervisory system, but the Soviet Union torpedoed such a scheme. 15 In 1951 the new Alandic Autonomy Act was enacted in Finland (No. 670/1951). The new Act enlarged and specified the jurisdiction of the Alandic Legislative Assembly and created a specific regional citizenship, the right of domicile, for persons having permanent residence in Aland (Sections 3 to 5). In the new Act acquisition of the right of domicile required, according to the main rule, a residence period of five years in Aland. Only persons with the right of domicile had full rights in Aland (voting rights, freedom of enterprise, the right to own real estate). A notable novelty in the Act was the stipulation (Section 11 ( 19)) according to which, if a treaty ratified by Finland contained a provision which was in conflict with the Autonomy Act, the provision was to enter into force in Aland only if the Legislative Assembly consented to the statute implementing the treaty. Even if the disappearance of the international supervisory system was definitely a negative matter for the Alanders, the above-mentioned provisions in the 1951 Autonomy Act reinforced the autonomy and the preservation of the Swedish character of Aland, as compared with the 1921 settlement.

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After the adoption of the 1951 Autonomy Act and the partial normalisation of Finland's relations with the Soviet Union the Alanders could be convinced that their rights were not in jeopardy.

3. THE 1991 A.LAND AUTONOMY ACT AND RECENT VIEWS ON FINLAND'S OBLIGATIONS In the 1970s a lively discussion among legal scholars arose concerning the international legal basis of the autonomy and Swedish character of the Aland Islands. The initiator of the discussion was Professor Tore Modeen 's book "De folkrattsliga garantierna for bevarandet av Alandsoarnas nationella karaktar" in 1973. Modeen endeavoured to prove that Finland and Sweden had concluded a binding agreement on 27 June 1921. His reasoning was that even if the two States were unwilling to make an agreement binding under international law, there emerged a "meeting of minds" between them; this meeting of minds was written down and presented to the Council of the League of Nations. He also pointed out that a considerable number of international legal experts were of the opinion that there existed a treaty between Finland and Sweden. 16 Modeen got opposing arguments especially from Dr Ilkka Saraviita, who based his arguments on Finland's constitutional law, and from Love Kell berg, legal expert of the Swedish Ministry of Foreign Affairs, who based his arguments on the statements of Sweden's negotiators after the events of 24-27 June 1921. 17 There are also other experts who deny the existence of a binding agreement. 18 Sweden's ministers of foreign affairs reiterated in 1986 and 1992 that Finland continuously owes to Sweden the obligations which it assumed on 27 June 1921. The statement of 1986 recognised that Finland has fulfilled its obligations in an exemplary way. 19 Regarding the view of the State of Finland, it has developed in an interesting and even surprising way. In 1970 two top officials of the Finnish Ministry for Foreign Affairs, the Secretary-General of the Ministry and the Chief of the Legal Department, stated expressly in a memorandum that Finland and Sweden had concluded a treaty in June 1921 and that the treaty was still in force. In another memorandum in 197 4 a high official of the Political Department of the Ministry spoke of the agreement of 1921 which forms the basis of Finland's obligations towards Sweden. 20 Since the two memoranda were meant for communication between State officials, they did not become known to thexublic. The 1951 land Autonomy Act was replaced by a new Autonomy Act in 1991 (No. 1144/1991); the new Act entered into force in the beginning of 1993. In preparing the 1991 Act the Finnish Government, two committees appointed'by the Government, as well as the Chief of the Legal Department of

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the Ministry for Foreign Affairs referred to the 1921 Agreement as a legally relevant document. 21 The Government Bill proposing Finland's accession to the European Convention on Human Rights (No. 22/1990) referred to "the so-called 1921 Aland Agreement which is in force between Finland and Sweden". Similarly, the Foreign Affairs Committee of the Finnish Parliament considered that there exists an agreement from 1921 which, even if it is unusual in form and was not signed by the parties, continuously binds Finland towards Sweden. 22 The Parliamentary Committee on the Constitution did not share the view that there exists an agreement binding on Finland towards Sweden. The Committee considered that in 1921 Finland gave a unilateral commitment to the League of Nations, but did not enter into treaty relations with Sweden. On the other hand, the Committee was of the opinion that the so-called (nonbinding) Aland Agreement had given rise to customary international law 23 a view which had been advocated by Professor Allan Rosas. 24 The 1991 Autonomy Act develops further Aland's autonomy. The new Act deviates from the 1921 settlement to a greater extent than the 1951 Autonomy Act. Most deviations are in favour of Aland. In one of them a new condition is created for the acquisition of the right of domicile in Aland: in addition to the residency of five years, the applicant has to be satisfactorily proficient in the Swedish language (Section 7). The right of persons not having the right of domicile to acquire and own real estate is further restricted. Also the new provisions concerning the appointment of the Governor of Aland are more favourable to Aland than before (Section 52). Furthermore, it should be noted that according to the new Act, Aland can have a role in Finland's treaty negotiations with other States (Section 58). There is one provision in the new Autonomy Act which deviates from the 1921 settlement formally to the detriment of Aland. Section 40 of the new Act improves the position of the Finnish language in schools - as compared with the previous acts. Whereas according to the previous instruments, the Finnish language could not be taught at all in those Alandic primary schools which were supported or subsidised by the State or by a commune, without the approval of the commune concerned, the 1991 Act no longer subjects all teaching of the Finnish language to such approval procedure. Finnish can now be taught in Alandic schools as a foreign language without permission. The approval of an Alandic organ must be acquired only if a school wants to have a language of instruction other than Swedish. 25 The modification created in Section 40 of the 1991 Act has two bases: 1) The trend in Europe is towards multicultural societies and increased use of different languages. Aland has a greater need than before to have persons able to master Finnish. Thus, over 90 per cent of Aland's pupils nowadays study Finnish at school as a foreign language. The modification of Section 40 is actually not detrimental to Aland. 26 2) Opposition in the Finnish Parliament

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to the draft Act would have been considerable, if the strict provision on school language had not been liberalised. 27 Some concluding observations: 1. The autonomy and preservation of the Swedish character of the Aland Islands are stronger in the law of 1991 than in the law of 1920-22. The only real deficiency at present, as compared with the 1920s, is the absence of an international system supervising respect for Aland's international status. 2. Whereas it is understandable that Sweden during the 1940s began to support the view that it had made a binding agreement with Finland in June 1921 - and thus reversed its earlier position - it is surprising that Finland has more or less made a similar reversion in recent decades. It is apparent that Finnish governmental circles have had no need to concentrate properly on examining the international legal basis of Finland's obligations, since the constitutional guarantees for the Alandic Autonomy Acts in Finland's legal system have, in any case, effectively ensured Aland's autonomy. 3. There is no unanimity among experts of international law concerning whether Finland and Sweden made a binding agreement on 24-27 June 1921. A number of experts are in support of the binding agreement, but there are also a considerable number of experts who base Finland's obligations on the Resolution of the Council of the League of Nations and on customary international law, and deny the existence of any binding agreement.

4. THE VIEW OF THE EUROPEAN COMMUNITY/UNION

The Commission of the European Community commented on Aland's status in 1992 in its statement concerning Finland's membership application. As regards autonomy, the Commission stated that after the Council of the League of Nations in 1921 confirmed Finland's sovereignty over Aland, Finland agreed to certain guarantees; they are included in the Autonomy Act. As regards demilitarisation, the Commission referred to the 1921 Convention. 28 In February 1994 Finland and the European Union reached agreement on the terms of Finland's accession to the EU. During the negotiations the EU recognised that the Aland Islands as an autonomous region could decide itself whether it wanted to join Finland's membership within the EU. Protocol No. 2 of the Act of Accession in the 1994 Treaty of Accession to the European Union deals with the Aland Islands; it entered into force at the beginning of 1995, when Finland became a member of the EU and Aland joined Finland's membership. The opening words of Protocol No. 2 run as follows: Taking into account the special status that the Aland islands [sic] enjoy under international law, the Treaties on which the European Union is

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founded shall apply to the Aland islands [sic] with the following derogations .... (my italics) The derogations have as their purpose to respect the right of domicile (regional citizenship), and to make it possible for the autonomous region to maintain its economic viability. 29 Finland included in the minutes of the negotiations a unilateral declaration recalling the special status of Aland. The declaration refers to the constitutional basis of Aland's autonomy and to the Resolution of24/27 June 1921 of the League Council and concludes that "the Aland Islands are the subject of an established status under International Law". 30 Thus, both the EU and the Finnish Government recognised that Aland has a special status under international law, the bases of this special status being resolutions of the League Council and the treaties providing for the demilitarisation of Aland. There is no detailed analysis of the special status, but the principal features can be found in the statements. It is notable that there is no mention of any agreement between Finland and Sweden.

5.

THE BASIS AND CONTENT OF FINLAND'S OBLIGATIONS

In light of the criteria for a binding inter-State agreement - treaty - under international law, it is evident that Finland and Sweden did not conclude a treaty at the League of Nations on 24-27 June 1921. The essential criteria for a treaty in international law are the following: I) a treaty creates for the State parties - or at least for one of them - obligations or rights, and these are judged according to international law; 2) there occurs a "meeting of minds" between the parties - mutual consent; 3) the parties have the intention to bind themselves to a mutual treaty; this intention must be ascertainable from the treaty text or from the statements or behaviour of the parties. On the other hand, for a treaty to become binding on the State parties, it is not necessary that it be in written form or be signed or ratified by the parties. However, the oral form, or absence of signatures or ratifications, may be an indication of the absence of intention to become bound. In such a case there must be ascertainable proof of the intention to become bound. 31 It seems quite clear that in late June 1921 Finland and Sweden did not intend to conclude a treaty in their negotiations at the League of Nations. Both States seemed to be of the opinion that they were submitting to the decision of the League Council but were not entering into treaty relations with each other. The fact that the agreed text was not signed by the negotiators and that the text was not treated as a treaty in the domestic procedures of either State are further proof in addition to the weightiest proof, the expressed statements denying a treaty relationship - that the two States did not conclude a treaty. As far as international practice is concerned, the example of South Tyrol is of special interest here. In 1969 Italy, the sovereign of South Tyrol, and

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Austria, the Protecting State of South Tyrol according to the 1947 Peace Treaty between Italy and the Allied States, concluded an unusual agreement, the "Siidtirolpaket". It was concluded for the advancement of the autonomy of South Tyrol and the rights of the German-speaking majority population of South Tyrol. 32 The Parliaments of both Italy and Austria accepted the "Siidtirolpaket" in procedures which Hannum describes as "informal approval". 33 According to the prevailing view, the "Siidtirolpaket" is not an internationally binding treaty but a political agreement. 34 This depends on the attitude of Italy. In its domestic procedure of approval of the "Siidtirolpaket" Italy purposefully avoided those procedures which it normally applies when approving treaties. It would not have been impossible for Finland and Sweden to make on a later occasion an informal (but binding) treaty to the effect that the texts made at the League of Nations in late June 1921 obligated Finland towards Sweden. There appears in fact to exist a certain kind of common understanding between the two States, but on no occasion have the two States had a dialogue to that effect. The common understanding consists only of unilateral statements by high State officials or State organs. Thus, no later agreement has been concluded. On the other hand, in light of the criteria of customary law in international law, it appears clear that international customary rules have developed which obligate Finland to respect Aland's autonomy and Swedish character. The criteria for the emergence of customary rules are: the State or States concerned 1) apply a certain practice, and 2) recognise this practice as obligatory (opinio Juris sive necessitatis). Finland has for over 70 years respected bona fide the settlement of 1921, and its responsible State organs and officials have on many occasions confirmed that Finland recognises its international obligations to respect Aland 's autonomy and Swedish character. There exist rules of at least local customary international law involving Finland and Sweden. Finland's attitude and practice fulfil the criterion, set by the International Court of Justice (ICJ) in the Right of Passage over the Indian Territory case for norms of local customary international law, of constant and uniform practice. Customary law is equal to treaty law as a source of rules of international law. 35 Even though the importance of treaty law has been growing, the ICJ has continuously paid a great deal of attention to customary international law. 36 Finland has customary obligations to respect the principles and the spirit of the solution made within the League of Nations on 24-27 June 1921. 37 Modifications to the 1921 text, appearing to correspond to later societal development, have been made by the mutual understanding of the Finnish State and Aland. Such modifications have not run against the principles and spirit of the 1921 solution and appear to be permissible. In general terms, modifications which are genuinely consented to by Aland or are not

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contested by Sweden appear to be permissible, i.e., they are not prohibited by international law. Thus, Finland has, in addition to the customary obligations arising from the 1921 solution, at present also more comprehensive customary obligations to respect the autonomy of Aland. Those obligations rest on the principles of the Aland Autonomy Acts and the related Acts. Finland has recognised that autonomy and the guarantees confirmed by the League Council form a unity. With the growing importance of international human rights, some legal experts have expressed allegations that some rules for the preservation of the Swedish character of the Aland Islands might violate Finland's obligations under human rights conventions. 38 No international organ supervising the observance of human rights conventions has ascertained such a violation. In any case, in the opinion of the majority of Finnish and Swedish experts of international law - such as Rosas, Pellonpaa, Scheinin, Eriksson, Bring and the present author - if Finland's obligations to respect the Swedish character of Aland were in conflict with Finland's obligations under human rights conventions, the latter would prevail. 39 This has also been the assessment of two committees of the Finnish Parliament: the Foreign Affairs Committee and the Committee on the Constitution. 40 This solution can be based on the principle of lex posterior derogat legi priori, if both Finland and Sweden have ratified a given human rights convention. Indeed, both States have ratified a handsome number of human rights conventions. If the lex posterior principle were not applicable in a particular case, it appears to be a widely shared view that human rights conventions have law-making character and are very restrictive in tolerating the parties' commitments which conflict with them. 41 The European Court of Human Rights, for example, has not paid respectful regard to State parties' commitments towards non-parties, even if given before the party's ratification of the European Convention on Human Rights. 42 On the other hand, Pellonpaa estimates that if the European Court had to assess the consistency of a rule of particular international law between Finland and Sweden with the European Convention, it would be fairly reluctant to interfere with the margin of appreciation of Finland and Sweden. 43 The constitutional guarantees of Aland's autonomy and Swedish character are strong permanent in character in the present constitutional system of Finland, since the Aland Autonomy Act cannot be amended or repealed, or exceptions made to it, without the consent of the Alandic Legislative Assembly. It can be asked, therefore, whether Aland's international legal status and Finland's international obligations have much significance. The answer is that Aland's international legal status certainly strengthens Aland's autonomy and Swedish character; for example, States other than Finland, and the EU, are also under obligation to respect Aland's autonomy and Swedish character.

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The whole question of Aland's status and Finland's obligations became acute, when it became evident that Finland would seek a close relationship with, and even membership in, the EC. The Alanders began to wonder and doubt whether the EC would agree to recognise Aland's special international status within the EC and consent to exceptions called for by that special status. The Alanders had a vital need to clarify the basis and content of Aland's international status and Finland's obligations. The atmosphere relaxed after the EU recognised the special international status of Aland. However, it is important to know the basis and content of Aland's international status and Finland's obligations. If some external party at some point in time began to put pressure on Finland to give up a certain aspect of Aland's autonomy or guarantees of its Swedish character, Finland could refer not only to its constitutional law, but especially to Aland's international status and to Finland's international obligations. If Finland, for one reason or another, wanted to weaken Aland's autonomy or the guarantees of its Swedish character, international law would protect Aland. If Finland resorted to harsh pressure to compel Aland to give up its opposition to an amendment which would weaken Aland's status, the fact that Finland has international obligations would make it possible for outside States - at least Sweden -to react. Since Finland's international obligations rest on customary law, it would be remarkably difficult for Finland to denounce its obligations. According to international law, a State cannot be easily acquitted of its customary obligations. 44

6. To WHOM DOES FINLAND OWE ITS OBLIGATIONS? The principal purpose of this section is to examine to whom Finland owes its obligations to respect the autonomy and Swedish character of Aland and, consequently, who would have the right to react if Finland violated its obligations. Since it can be safely stated that the international status of Aland has won general recognition within the international community, all States and international organisations are under obligation to respect Aland's international status. Thus, they all owe the obligation to respect Aland's autonomy and Swedish character to Finland and to those States or international organisations to which Finland owes its international obligations in this matter. It is possible that the right to react to Finland's violations would not be strictly limited to those States or international organisations to which Finland owes its obligations. It is possible that there would be a wider "legal interest" to react having its basis in community interest. It appears clear that international organisations regard concern for respect of human rights to be one of public community interests. 45

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It was argued previously in section 5 that Finland owes its obligations to respect Aland's autonomy and Swedish character at least to Sweden. Sweden has on many occasions expressed its interest in the matter. When Finland's representatives have spoken of Finland's international obligations in recent decades, they have expressly referred to Sweden, not to any other State or international organisation. Quite clearly Finland has recognised that it owes its obligations to Sweden. Sweden has the international legal right to react, if it suspects that Finland has violated its obligations concerning respect of Aland's autonomy and Swedish character. 6.2. To the International Community of States or to a Considerable Group of States? At the time of the existence of the League of Nations, it could properly be argued that Finland owed its obligations to the League. Finland had agreed to submit to the decision of the League Council, and the Council created the framework of Finland's obligations and became the supervisor of Finland's observance of these obligations. Even though not all existing States were members of the League, it was the central organisation of the international community of States. It could be argued that Finland owed its obligations to the international community of States. But, as it was explained above in section 2, virtually the whole minorities protection system supervised by the League of Nations collapsed during the 1940s. The UN did not assume the League's supervisory functions. The 1950 Report of the UN Secretariat was of the opinion that after the collapse of the League's minorities protection system, Finland owed its obligations concerning Aland's autonomy and Swedish character only to Sweden. There is no concrete evidence to submit that currently Finland would owe its obligations to respect Aland's autonomy and Swedish character to the international community of States. States other than Sweden have not expressed their legal interest to see that Finland respects its obligations concerning Aland's autonomy and Swedish character. Recently Russia has displayed some interest, but the principal motive of its interest is respect for the demilitarisation of Aland. 46 Russia regards the autonomy and demilitarisation aspects as being interconnected and considers that the weakening of one threatens to weaken the other. There exist several grounds to argue that Finland owes its obligations to respect the autonomy and Swedish character of Aland to a wider group of States than just Sweden. According to the arguments of one ground, the international status of Aland is in its totality a "permanent settlement" comprising both the demilitarisation aspect and the autonomy aspect. Alternatively, if the autonomy aspect were not part of a permanent settlement, perhaps it would

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be part of the customary regional law of Europe or of the Baltic Sea area (the second ground). Or, since Finland and the EU have together recognised that Aland e?joys a special, status un~er international law, it c~n b~ asked whether Finland s - and Aland s - accession to the EU creates obhgat1ons for Finland towards the EU to respect the special status of Aland (the third ground). The fourth ground arises from human rights law. If State X in its own territory violates the rights of its citizens, that is not a direct violation of the rights of other States. To whom does State X owe its obligations to respect human rights: to no one, to the international community of States, or to those States which are in treaty relationship with State X i.e., States which, like State X, have ratified a given human rights convention? In the following, we will comment on the first and second grounds together, and then separately on the third and fourth grounds. 6.3. On the Basis of Permanent Settlement or Regional Customary Law to a Considerable Number of Other States?

In the theory of international law there exists the concept of "permanent settlement" or "objective regime". It is characteristic of permanent settlements / objective regimes that they endeavour to determine in a permanent (or at least long-lasting) way the boundaries and/or status of a territory or waterway, and that the purpose is to serve the common interest. After such a settlement has won general recognition, it is obligatory on all States erga omnes. 47 Either all States, or all States of a given region - regardless of whether they participated in the creation of that permanent settlement or not - can have a legal interest in demanding that the permanent settlement be respected. The most commonly mentioned examples are the demilitarisation of Aland and Antarctica and the international status of the Canals of Panama, Suez and Kiel. 48 The character of Aland 's demilitarisation and neutralisation as a permanent settlement gets support from the analyses of Klein, Fagerlund, Lehto and McNair. 49 However, Rosas in Chapter 2 above takes a critical view towards the permanent settlement and gives pertinent grounds for his view. That the regime governing Aland 's autonomy and Swedish character would constitute a permanent settlement in international law has not received much support - significantly less than the support which the regime governing the demilitarisation and neutralisation as a permanent settlement has received. Voices calling for the recognition of a comprehensive permanent settlement concerning Aland have been rare. Even though the regime governing the autonomy and Swedish character has been in existence for over 70 years and appears factually as permanent, there are legal grounds for arguing against attributing the status of a permanent settlement to Aland: I. It has been noted above that Finland's obligations to respect Aland's Swedish character would have to bow if they ran into conflict with Fin-

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land's obligations under human rights conventions. Such a secondary character of obligations is not characteristic of permanent settlements, which create obligations strict and firm in character. 2. It is apparent that Finland can change the rules protecting Aland's autonomy and Swedish character with the consent of Aland or of Sweden. It seems unlikely that Finland would have to listen to the opinions of other States. States other than Sweden have not manifested their legal interest with regard to Aland's autonomy and Swedish character. True, Finland's respect of Aland's autonomy and Swedish character and the existence of the strong constitutional guarantees have made it unnecessary for outside States to express their legal interest. However, Sweden has expressed its interest many times and has been the only State to do so. 50 From the foregoing, it may appear evident that only Sweden would be entitled to react, if Finland violated its obligations to respect Aland's autonomy and Swedish character. However, that is not our distinct conclusion. It is possible to argue that the phrase "the special status of Aland under international law" used in the "Aland Protocol" of the 1994 Treaty of Accession to the EU refers to something having general bearing and being within the common interest. It can be argued that Aland's status is a part of regional customary law - either European or Baltic and that Finland owes obligations to the States concerned and that they are entitled to react to violations.

6.4. To the European Union? What is the legal significance of the special status of Aland in the relations between Finland and the EU? The tone of Protocol No. 2 of the Act of Accession in the 1994 Treaty of Accession is that it permits certain derogations from EU instruments in favour of Aland. Protocol No. 2 uses such terms as "the EC Treaty shall not preclude" certain derogations and "the Aland islands [sic] - being considered as a third territory ... is excluded from the territorial application of the EC provisions ... ". Thus, it is Finland's business to settle with Aland, under the terms of its legal system, the more detailed content of the derogations permitted by Protocol No. 2. If the derogations are made narrower than what Protocol No. 2 permits, that would be a matter at Finland's disposal. On the other hand, Protocol 2 can be modified only in the same way as the primary law of the EU. 51 When Finland notified the EU of the content of the derogations and those derogations entered into force, they became part of the Community law. If Finland does not honour the derogations or there are suspicions to that effect, the EU system offers a complaint procedure for other member States and for the EU Commission to the European Court of Justice (ECJ). Aland does not have such a possibility; its organs, or individual Alanders, can only sue the Finnish Government before Finnish courts and try to get them to request

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a preliminary ruling from the ECJ. The ECJ has the authority to rule that Finland has violated its obligations. 52 If Finland subsequently endeavoured to restrict the derogations by compelling Aland to consentto restrictions againstAland's free will, the EU might react. After all, the EU has recognised that Aland enjoys a special status under international law and Finland has made a unilateral declaration to the EU to that effect. The EU might consider that, on the basis of general international Jaw, it has a public legal interest to speak for respect of Aland's existing status. 53 6.5. To a Number of Other States on the Basis of Human Rights Conventions and Instruments? Multilateral human rights conventions create many obligations upon Finland to respect human rights in the Aland Islands. It appears clear that the parties to a human rights convention owe their obligations under the convention to the other parties of that convention. 54 When Finland's obligations to respect Aland's autonomy and Swedish character are compared with Finland's obligations under multilateral human rights conventions, it appears clear that as !ex specialis the former go much further than the latter. To give an example, human rights conventions do not obligate States to establish far-reaching autonomy systems or to enable regional minorities to control the school system of the region. Thus, if Finland did not fully respect these far-reaching lex specialis obligations, that would not mean that Finland had violated its obligations under human rights conventions. If, on the other hand, it became evident that Finland's lex specialis obligation concerning Aland were regarded as going too far in favour of Aland at the cost, and counter to, the principle of equality and the prohibition of discrimination, that would enable the other State parties to certain human rights conventions to raise an international claim against Finland. 55 Within the Conference on Security and Cooperation in Europe (CSCE), which in 1994 was changed to the Organization for Security and Cooperation in Europe (OSCE), a remarkable body of human rights provisions and international mechanisms for reacting to human rights violations has been created, especially in the course of recent years. In the OSCE a State's human rights system and its implementation is a matter of concern to the whole OSCE and its participating States. The instruments call upon the participating States to respect human rights and democracy. The OSCE's human rights system is not strictly juridical but creates primarily political and moral obligations for States. The OSCE appears to be entitled to express concern for any problems of human rights implementation in the participating States. The autonomy and respect for the Swedish character of Aland are an important part of the democratic system of Finland. It can be submitted that within the framework of the OSCE's human rights supervision mechanisms, other OSCE States

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would be entitled to react if Finland violated the autonomy or Swedish character of the Aland Islands. However, since the OSCE documents are primarily political in character, we are speaking here of Finland's political obligations, not of international legal obligations, towards the OSCE and its participating States. 56

6.6. Conclusions One may conclude that Finland owes its international legal obligations to respect the autonomy and Swedish character of Aland to Sweden. It appears clear that Sweden has the international legal right to react if Finland violates its obligations. It is also possible to argue that Finland has obligations towards the other States of Europe or of the Baltic Sea region on the basis of regional customary law, and that these States have the right to react to violations. Obligations to the EU and its member States are emerging. In addition, Finland owes obligations to the other parties of multilateral human rights conventions, but in practice it is possible that Finland's obligations concerning Aland, as far-reaching lex specialis, do not clash with Finland's more modest obligations under human rights conventions. Within the OSCE, Finland appears to have political obligations to the OSCE and its participating States. International organisations working in the field of human rights can well claim to have a public legal interest. One can name as prominent candidates the UN and the Council of Europe. Nor can one fully bypass such regional organisations or fora as the Nordic Council and the CBSS. Often it is unclear, however, whether primarily political international organs endeavour to react on political grounds or whether they also want to base their right of reaction on legal grounds.

7.

AN ALTERNATIVE LEGAL BASIS: ALAND'S RIGHT OF SELF-DETERMINATION?

Prior to the Council's Decision of 1921, two commissions of the League of Nations dealt with the questions relating to Aland, inter alia, the alleged right of self-determination. The prestigious Commission of Jurists (in 1920) denied that this right was a rule of positive international law. 57 It was the opinion of the Commission that a widespread right of secession from existing States would not only mean infringement of State sovereignty, but would also endanger the interests of the international community. As the principal forms of an entity's self-determination, the Commission presented the formation of an independent State and the choice between two existing States; these are external forms of self-determination. The Commission made it understood that in transitory circumstances the right of self-determination might have an exceptionally important role. If a

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State was not fully formed or was undergoing transformation or dissolution, the situation might be uncertain from a legal point of view. Such transitory circumstances tend "to lead to readjustments between the members of the international community and to alterations of their territorial and legal status". "Under such circumstances, the principle of self-determination of peoples may come into play. New aspirations of certain sections of a nation, which are sometimes based on old traditions or on a common language and civilisation, may come to the surface and produce effects which must be taken into account in the interests of the internal and external peace of nations." The Commission considered that, depending on circumstances, a choice must be made between the recognition of the right of self-determination and the recognition of minority rights: The fact must, however, not be lost sight of that the principle that nations must have the right of self-determination is not the only one to be taken into account. Even though it be regarded as the most important of the principles governing the formation of States, geographical, economic and other similar considerations may put obstacles in the way of its complete recognition. Under such circumstances, a solution in the nature of a compromise, based on an extensive grant of liberty to minorities, may appear necessary according to international legal conception and may even be dictated by the interests of peace. The Commission of Jurists did not take a definite stand on the rights of Aland. It recognised that Aland was geographically distinct and that its population was homogeneously Swedish. The Commission's conclusion was that the dispute between Sweden and Finland referred to a transitory situation. The Council of the League of Nations was entitled to deal with the question of Aland's status. The second commission, the Commission of Rapporteurs, which was not a legal commission, had as its purpose to outline the League Council's final position on the Aland dispute. Like the Commission of Jurists, the Commission of Rapporteurs took a cautious attitude towards the right of external self-determination. It was not ready to recognise Aland's right of external self-determination - neither in the form of integration with Sweden nor of independence - but was ready to grant minority rights to Aland to safeguard its Swedish language and culture and traditions. The Commission recognised that in certain ways the population of Aland formed a separate entity from the Swedish-speaking population of Finland and was, as a separate community, in need of special protection. However, Aland's population formed only a small part of Finland's Swedish-speaking population; the Swedish-speaking population of the Finnish mainland objected vociferously to the separation of Aland from Finland. The Commission of Rapporteurs recognised that in exceptional circumstances the secession of a minority from a State might be possible: namely,

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if the State did not grant reasonable and effective guarantees for minority rights. As for Aland, the Commission referred to this possibility in the event that Finland refused to grant guarantees for its special status. However, in light of Finland's enactment of the Autonomy Act of 1920, the Commission considered Finland's refusal most unlikely. The League Council observed the views of the Commission of Rapporteurs. There was nothing in the Resolution of 24 June 1921 speaking in favour of Aland's right of external self-determination. But internal self-determination - i.e., autonomy - was present in· the Council's Resolution: certain new guarantees for the protection of the Aland population were to be inserted by Finland into the 1920 Autonomy Act. It is hardly an exaggeration to say that, in light of the Council's Resolution, autonomy became part of Aland's international status. According to Salo, "the rights of the population of the archipelago were guaranteed as a form of minority protection". 58 During the UN era, the principle of the right of self-determination has developed into one of the basic principles of international law. The emphasis has been on the right of dependent peoples to external self-determination from alien rule, primarily colonial rule. 59 Otherwise, the international community of States has been reluctant to recognise the right of parts of existing States to secede withouJ the approval of the government of the State concerned. Such secession has been considered possible only exceptionally, if there are transitory circumstances or if the government has totally suppressed the human rights of the population of a given territory - a substantial population, not just a limited minority. 60 What the Commission of Jurists said in 1920 concerning the limits of secession is still quite valid. It appears quite clear that according to present-day international law, the Aland Islands is not entitled to external self-determination without the consent of the Finnish Government. 61 In the absence of that consent, the right of selfdetermination can only be internal in character. This internal aspect is worth examining in more detail. One could have expected that with the development of external selfdetermination the UN would also have endeavoured to develop the status of internal self-determination in international law, inter alia, territorial autonomy in existing States. In this way the UN could have pressured individual States to recognise reasonable rights for territorial minorities. But the UN has not done that. Many States appear to be continuously suspicious of territorial autonomy; they fear that it forms the seed of - and is even a dangerous step towards - secession. Therefore, the UN has generally chosen a different way: it has promoted human rights, including political rights, for all. Only recently has the UN begun to emphasise the need to develop and strengthen minority rights. That has taken place in cautious terms. The institution of territorial autonomy for minorities does not exist as an obligation in general international law. Nor is it possible to state that such an obligation exists in the regional law of Europe or Western Europe. No

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multilateral conventions exist which would obligate the ratifying States to grant territorial autonomy even to sizable territorial minorities (minorities which form a majority in a given territory). There was a proposal to include autonomy in the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, but, in the words of Hom, the "proposal to have some mention of self-government in the form of autonomy or similar was clearly rejected, although it was put forward simply as an alternative for participation in decision-making". 62 The CSCE, which in many ways has been in the forefront of the promotion of human rights, has spoken in non-obligatory terms on the territorial autonomy of minorities. 63 In the opinion of Johannessen and Hvenegard-Lassen, even the careful support of the CSCE for territorial autonomy went "far in relation to existing international law". 64 Nevertheless, even if territorial autonomy has a meagre status in general international law, Aland's autonomy is part of existing international law a special case. 65 During the existence of the League of Nations, Aland 's special status was under the supervisory protection of the League. Aland had the right to complain to the League Council, not directly as an international entity, but via the Finnish Government, the sovereign over Aland. Since the dissolution of the League, Aland has no longer had a comparable right of complaint - to complain in the name of Aland as a whole. At present Aland has a number of possibilities to send complaints to international organisations and organs, but these are quite informal in character, not being based on the recognised legal right of complaint in the name of Aland. Besides, the legal avenues informally open to Aland hardly offer protection for the far-reaching lex specialis rules governing Aland's autonomy and Swedish character. Only in the Nordic Council might Aland have a somewhat more formal right of complaint, but it is evident that the Nordic Council, a political body, would be cautious in handling complaints by autonomous territories. 66 The existing situation is disappointing. It is disappointing that minorities and their organisations do not have a recognised legal right to make, in their own capacity, complaints to international organs. Procedures should be created within the framework of which minorities would be entitled to complain directly to an international organ about violations of their rights. Something new has been developing recently and may be developing; the reader is advised to consult Chapter 10 (Spiliopoulou) on the international legal capacity of Aland below. It seems evident that Aland 's autonomy and Swedish character cannot be based directly on Aland's international rights, but rather on Finland's obligation to respect Aland 's special status. When Aland's autonomy and the rules protecting Aland's Swedish character have been modified during the UN era, the modifications have been agreed upon by the Finnish Government and Aland's authorities. No external State has participated in these modifications. Thus, Aland has had a vital role

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in the modification of its international status. Does this mean that Aland has an international legal capacity and that one should speak of A.land's international rights? Not necessarily, given that A.land's role in such modifications is based on Finland's domestic law. It does not appear surprising to the present author that an autonomy confirmed by international law can be modified by the subject of the autonomy and the obligated State in mutual understanding. Only if the obligated State were acting mala fide and tried to impose its will on the holder of the autonomy to its detriment, would external involvement be important. Yet, even if A.land's formal possibilities to guard its rights in the international arena appear to be limited, it has many more informal ways to promote its position internationally.

8.

CONCLUDING OBSERVATIONS

A.land's international legal status, as it was determined within the League of Nations in 1921, has already existed over seventy years. Finland's obligation to respect Aland 's autonomy and Swedish character is deeply rooted in international customary law. The European Union has recently recognised A.land's special international status. Since A.land's status is also well protected under Finland's constitutional law, A.land's autonomy and Swedish character rest on a truly firm legal ground. Sweden has displayed its interest in seeing that Finland lives up to its obligations. Still it would be welcome, if Aland - and other autonomous regions and territorial minorities - had the internationally recognised legal right to send complaints to an international supervisory organ, if they consider that the obligated State is not bona fide respecting its obligations. International law should be developed in this respect.

NOTES 1 See LNOJ, September 1921, pp. 693-694, 699, and October 1921, p. 393. The League Council established two different commissions, one to clarify international legal issues concerning Aland and the other to outline the principles relevant to the Council's solution. The commissions gave reports which dealt with various questions concerning Aland's status in international law and which are of considerable interest even today. These reports are dealt with in section 7 of this Chapter. On the work and reports of the Commission of Jurists and of the Commission of Rapporteurs, see Barros, 1968, pp. 282-283, 300-319. The report of the former can be found in LNOJ, Supplement special, No. 3, 1920, and the report of the latter in League of Nations doc. Conseil B 7.21/68/106, 1921. 2 The text of the Decision can be found in Annex 1 of this book. 3 The text can be found in Annex I below. 4 An alien could acquire provincial and communal franchise only after having acquired Finnish citizenship and after having been legally domiciled in Aland for five years. 5 See Modeen, 1973, p. 40; Lindholm, 1982, p. 117; Hofmann, 1982, p. 5.

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See Vortisch, 1933, pp. 182-184; Erich, 1925, pp. 411-412; Hesslen, 1939, pp. 65-66. See Palmstierna, 1951, pp. 23-24. At one time during the 1930s the relations between Aland and the Finnish State became so tense that an unofficial petition, signed by some 10,000 Alanders, was sent to the League of Nations. However, the League took no action in response to the petition. On this, see Wernlund, 1958, p. 58. 8 See Hannikainen, 1993a, note 49 on p. 28. 9 On the League's supervisory system concerning the protection of minorities, its fate after World War II and the position of the UN, see Thornberry, 1991, pp. 38-55, 113-140. 10 UN doc. E/CN.4/367 (1950). The text concerning Aland is on p. 69. Regarding the relevancy of the Report, see Modeen, 1973, pp. 93-128; Thornberry, 1991, pp. 53-54; Hannikainen, 1993a, pp. 48-52. An addendum to the Report was published in 1951, UN doc. E/CN.4/367/ Add. I. 11 On the policies of Finland and Sweden and on the statements of their representatives, see Kellberg, 1974; Hannikainen, 1993a, pp. 23-28. 12 The chief negotiator of Sweden was one of its most prominent politicians, Hjalmar Branting, who was Prime Minister in 1920, 1921-23 and 1924-25. 13 See Hannikainen, 1993a, pp. 34-37. Swedish legal experts did not express any definite opinions concerning this matter during the 1920s and 1930s. 14 See Modeen, 1973, pp. 67-76 and 79-80; Hannikainen, 1993a, pp. 43-47. 15 See Modeen, 1973, pp. 76-77. 16 See especially Chapters B, F and G in Modeen, 1973. Regarding the views of experts agreeing with Modeen's conclusion see also Hannikainen, 1993a, pp. 56-59, 75-76. 17 Saraviita, 1976; Kellberg, 1974. Also Kellberg's colleague, Ove Bring, has recently stated that there exists no binding agreement between Sweden and Finland; see Hannikainen, 1993a, pp. 74-75. 18 See Hannikainen, 1993a, pp. 57-59, 72-76. 19 See Hannikainen, 1993a, pp. 63-64. 20 On the two memoranda see Hannikainen, 1993a, pp. 60-62. 21 See Government Bill No. 73/1990, pp. 5-10, 52, 63, 92-93; Hannikainen, 1993a, pp. 64-66, 71-73. 22 Statement No. 2/ 1990 of the Foreign Affairs Committee. 23 Statement No. 2/1990 of the Committee on the Constitution and Report 15/1990 of the same Committee. 24 See Rosas, 1988, p. 42, and the newspaper Hufvudstadsbladet, 14 January 1991. 25 For a detailed discussion, see Chapter 8 (Horn) below. 26 See Hannikainen, 1993b, pp. 30ff. 27 See Hannikainen, 1993a, pp. 69-70. 28 The Opinion of the Commission was issued on 4 November 1992. 29 EU doc. CONF-SF 20/94. 30 EU doc. CONF-SF 20/94. 31 On the criteria of a treaty, binding under international law on the States concerned, see Harvard Law School's Research in International Law, 1935, pp. 686-705, 710-732, 1207, 1212-1213; Fawcett, 1953, pp. 38lff.; McNair, 1961, pp. 4ff., 180-190; Suy, 1962, pp. 11412 I; Reports of the International Law Commission, 1966, UN doc. GAOR A/6309/Rev. l, p. 22; Chiu, 1966, pp. 58-61; United Nations Conference on the Law of Treaties, UN doc. A/CONF.39/11/Add.l (1969), pp. 345-346; Munch, 1969; Schachter, 1977, pp. 296-297; Widdows, 1979; Karl, 1983, pp. 268-281, 387-388; Thirlway, 1991, pp. 4-15; Hannikainen, 1993a, pp. 83-95. 32 See Blumenwitz, 1986, pp. 93-98; Zeller, 1989, pp. 105ff. 33 Hannum, p. 434. For more details, see Zeller, 1989, pp. 33-37. 34 See Blumenwitz, 1986, pp. 98-99; Zeller, 1989, pp. 39-40, 85-99; Verdross & Simma, 1984, p. 342; Hannum, 1990, p. 434. 35 See Degan, 1990; Verdross & Simma, 1984, p. 32lff. 7

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See Thirlway, 1990, pp. 31-110. See Allan Rosas in Hufvudstadsbladet, 14 January 1991. 38 See Scheinin, 1991, pp. 151-152, 156; Modeen, 1976, pp. 153-166; Eriksson & Kangas, 1988, pp. 92-131; Hannikainen, 1993b, pp. 41-49. 39 See Pellonpaa, 1991, pp. 377-378, 388-89; Rosas, 1988, p. 142; for more details, see Hannikainen, 1993a, pp. 73-78, 98-102. 40 Statement of the Foreign Affairs Committee, No. 2/1990, and Report of the Committee on the Constitution, No. 15/1990. 41 In 1975, Finland concluded the Treaty on the Co-operation for the Prevention of Seizure of Civilian Aircraft with the Soviet Union. According to the Treaty, Finland was under the obligation to return to the Soviet Union any Soviet citizen who hijacked a civilian aircraft registered in the Soviet Union into Finland. In 1990 there occurred several hijackings from the Soviet Union into Finland by Soviet citizens. In order to prevent their return to the Soviet Union, some hijackers turned to the European Commission of Human Rights. Pending the complaints, Finland, which had ratified the European Convention on Human Rights in May 1990, informed the Soviet Union that if the European Commission requested it to suspend the return of hijackers, Finland would comply with the request. It seemed quite clear that Finland would have been ready to tum down altogether the Soviet Union's request for return - in the spirit of the Soering case - if the European Commission or the European Court had been against the return. Finland would have done so, even though Finland could not refer to the lex posterior principle, since the Soviet Union was not a party to the European Convention. See Hannikainen, 1991, pp. 539-547, 549, 554-557. 42 See Hannikainen, 1993a, pp. 99-100. 43 Associate Professor Matti Pellonpaa's expert statement to the Parliamentary Committee on the Constitution, 16 October 1990. 44 See Wolfke, 1993, pp. 65-66. 45 See Kamminga, 1992, pp. 116-126. 46 See Hannikainen, 1993a, pp. 116-117. 47 On obligations erga omnes, see Kamminga, 1992, pp. 156-163. 48 On permanent settlements in international law, see Klein, 1980; Fagerlund, 1993, Ch. 3; Re~orts of the International Law Commission in 1966, UN doc. A/6309/Rev. l, pp. 56-61. 4 Klein, 1980, pp. 2ff. and 350-351; Fagerlund, 1993, pp. 99ff.; Lehto, 1991, pp. 57-60; McNair, 1961, pp. 255-263. 50 When Alandic Autonomy Acts have been enacted or amended in Finland, Finland has not requested the opinion of any outside State or international organisation concerning the amendment. Sweden has not considered it necessary to react, because Finland's legislative enactments have not run counter to the spirit of Aland's autonomy and Swedish character. But if the Finnish State resorted to harsh action to compel Aland to consent to dubious changes, Sweden would evidently react. Ove Bring, Legal Adviser of Sweden's Ministry of Foreign Affairs, stated in a memorandum in 1991 that Sweden would have an international legal right to react in favour of Aland, if Finland violated its obligations under regional customary law. Bring considered, however, that Finland can make limited modifications to the settlement of 1921 on the basis of the development of international human rights. On this, see Hannikainen, 1993a, pp. 74-75. If diplomatic negotiations did not satisfy Sweden, it would be open to Sweden to resort to the procedures provided by the bilateral treaties of 1924 and 1926 between Finland and Sweden on the settlement of their mutual disputes. See FTS Nos. 29/ 1924, l 2/ 1926 and 17 / 1953, and also Hannikainen, 1993a, pp. 33-35, 135-137. It also would be open to Sweden to sue Finland at the ICJ, since both Finland and Sweden have accepted the compulsory jurisdiction of the ICJ. Their acceptances were given already in the 1950s. See Multilateral Treaties Deposited with the Secretary-General - Status as at 31 December 1991, UN doc. ST/LEG/SER.E/10, pp. 16 and 24-25; see also Donner, 1988, Chapter 2. 37

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See Joutsamo, 1991, pp. 54-57; Alands landskapsstyrelses meddelande 1/1993-94 Redogorelse for konsekvensema av Alands medlemskap in den Europeiska unionen, 20 May 1994, pp. 6-7. 52 See Joutsamo, 1991, pp. 79-80, 83-89. 53 See Alands landskapsstyrelses meddelande 1/1993-94-Redogorselse for konsekvensema av Alands medlemskap i den Europeiska unionen, 20 May 1994, bilaga, p. 45. 54 See Kamminga, 1992, pp. 163-171; Ramcharan, 1989, pp. 289-295. 55 For more detail, see Hannikainen 1993b. 56 For more detail, see Hannikainen, 1993a, pp. 121-128. 57 LNOJ, Supplement special, No. 3, 1920, pp. 5-14. 58 Salo, 1991, pp. 276-277. 59 See Gayim, 1990, pp. l 9ff.; Salo, 1991, pp. 278ff.; Hannikainen, 1988, pp. 357ff. 60 See Bring, 1992, p. 168; Koskenniemi, 1993, p. 67; Oeter, 1992, pp. 777-778; Hannum, 1993, pp. 41-69. See also Gayim, 1993, pp. 568-598, 645-647. 61 Castren (p. 26), writing in 1959, expressed the opinion that Aland is not a subject of international law. It is interesting to note that the Government of Denmark has recognised the right of secession, and the consequent right of full indepe.ndence, to Greenland and the Faroe Islands, autonomous regions under Denmark's sovereignty, if such is their desire. See Rehof, 1992, p. 29. On the autonomies of these two regions, see Rehof and Nordrevy 4-5/1992. 62 Hom, 1994, p. 104. The 1992 Declaration was adopted by the General Assembly in Resolution 47/135. 63 See Report of the CSCE Meeting of Experts on National Minorities, Part IV, Geneva, 1991. 64 Johannessen & Hvenegiird-Lassen, 1992, p. 10. On the other hand, Hannum, 1990, pp. 453-479, takes a more positive view of the place of territorial autonomy in general international law. 65 See "The Aland Islands - Demilitarized Region", 1995, pp. 78-80. 66 See Hannikainen, 1993a, pp. 141-143.

BIBLIOGRAPHY Barros, James, 1968. The Aland Islands Question: Its Settlement by the League of Nations. New Haven: Yale University Press. Bjorkholm, Mikaela & Rosas, Allan, 1990. Alandsoamas demilitarisering och neutralisering. Abo: Abo Akademis Forlag. Blumenwitz, Dieter, 1986. 'Die Volkerrechtlichen Grundlagen der Stidtirol-Frage - die Entwicklung eines europaischen Minderheitenproblems in sieben Jahrzehnten', Die Friedens-Warte, Band 66, Heft 1-2, pp. 91-113. Berlin: Berlin Verlag. Bring, Ove, 1987. Nedrustningens folkratt. Stockholm: Norstedts Forlag. Bring, Ove, 1992. 'Kurdistan and the Principle of Self-Determination', German Yearbook of International Law, pp. 157-169. Castren, Erik, 1959. Suomen kansainvalinen oikeus, Porvoo: Werner Soderstrom Osakeyhtio. Chiu, Hungdah, 1966. The Capacity of International Organisations to Conclude Treaties, and the Special Legal Aspects of the Treaties so Concluded. Haag: Martinus Nijhoff Publishers. Degan, Vladimir-Djuro, 1990. 'Customary Process in International Law', FYBIL, pp. 1-76. Erich, Rafael, 1925. Suomen valtio-oikeus, Vol. II. Porvoo: WSOY. Eriksson, Lars D. & Kangas, Urpo, 1988. Alandsfriigan. Helsinki: Finnish Lawyers' Publishing Co. Fagerlund, Niklas, 1993. Alands folkrattsliga status och EG. Mariehamn: Alands hogskola. Fawcett, J .E.S ., 1953. 'The Legal Character of International Agreements', B YIL, pp. 381-400. Gayim, Eyassu, 1990. The Principle of Self-determination. Oslo: Norwegian Institute of Human Rights.

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Gayim, Eyassu, 1993. The Eritrean Question - The Conflict between the Right of SelfDetermination and the Interests of States. Uppsala: Iustus forlag. Hannikainen, Lauri, 1991. 'How to Interpret, and What to Do to, the Treaty on Aircraft Seizures with the Soviet Union?', FYBIL, pp. 538-558. Hannikainen, Lauri, 1993a. Ahvenanmaan itsehallinnon ja ruotsinkielisyyden kansainoikeudelliset perusteet. Abo: Abo Akademi Institute for Human Rights. Hannikainen, Lauri, 1993b. Cultural, Linguistic and Educational Rights in the Aland Islands - Analysis in International Law. Publications of the Advisory Board for International Human Rights Affairs, No. 5. Helsinki: Ministry for Foreign Affairs. Hannum, Hurst, 1990. Autonomy, Sovereignty, and Self-Determination. Philadelphia: University of Pennsylvania Press. Hannum, Hurst, 1993. 'Rethinking Self-Determination', Virginia Journal of International Law, pp. 1-69. Harvard Law School's 'Research in International Law' Project: 'Draft Convention on the Law of Treaties', AJIL, 1935 - Supplement, pp. 653-1226. Hesslen, Gunnar, 1939. 'Alands sjalvstyrelse', Statsvetenskaplig Tidskrift, pp. 64-76. Hofmann, Rainer, 1992. 'Minderheitenschutz in Europa. Uberblick Uber die Volker- und Staatrechtliche Lage', ZaoRV, pp. 1-69. Hom, Frank, 1994. 'Recent Attempts to Elaborate Standards on Minority Rights'. In Bring, Ove & Mahmoudi, Said (eds.), Current International Law Issues - Nordic Perspectives, Essays in Honour of Jerzy Sztucki, pp. 81-108. Stockholm: Fritzes. Johannessen, Lene & Hvenegi'trd-Lassen, Kirsten, 1992. Minority Rights in Europe - Progress in the CSCE. Copenhagen: The Danish Center for Human Rights. Joutsamo, Kari, 1991. Euroopan yhteiso - eurooppaoikeus, 2nd ed. Helsinki: Finnish Lawyers' Publishing Co. Kamminga, Menna, 1992. Inter-State Accountability for Violations of Human Rights. Philadelphia: Pennsylvania University Press. Karl, Wolfram, 1983. Vertrag und spatere Praxis im Volkerrecht. Berlin: Springer Ver lag. Kellberg, Love, 1974. 'Alandsoamas intemationellrattsliga stallning', SvJT, pp. 184-194. Klein, Eckart, 1980. Statusvertrage im Volkerrecht. Berlin: Springer Verlag. Koskenniemi, Martti, 1993. 'Hierarkia, polysentriaja valtion "kriisi" ', Oikeus, pp. 57-69. Lehto, Marja, 1991. 'Restrictions on Military Activities in the Baltic Sea - A Basis for a Regional Regime?', FYBIL, pp. 38-65. Lindholm, Goran, 1982. 'Bakgrunden till Alands folkrattsliga stallning', NTIR, pp. 88-125. McNair, A.D. (Lord), 1961. The Law of Treaties. Oxford: Clarendon Press. Modeen, Tore, 1973. De folkrattsliga garantiema for bevarandet av Alandsoamas nationella karaktar. Mariehamn: Alands kulturstiftelse. Modeen, Tore, 1976. 'UNESCO-konventionen mot diskriminering inom undervisningen och Alandsoama', JFT, pp. 139-166. Mi1nch, Fritz, 1969. 'Comments on the 1968 Draft Convention on the LawofTreaties', ZaoRV, pp. 1-11. Oeter, Stefan, 1992. 'Selbstbestimmungsrecht in Wandel', ZaoRV, pp. 741-780. Palmstiema, Carl-Fredrik, 1951. 'Alandsfri'tgan 1918-1951 ', Varldspolitikens dagsfri'tgor, Nr 4. Stockholm: Utrikespolitiska institutet. Pellonpaa, Matti, 1991. Euroopan ihmisoikeussopimus. Helsinki: Lakimiesliiton Kustannus. Ramcharan, B.G, 1989. The Concept and Present Status of the International Protection of Human Rights. Dordrecht: Martinus Nijhoff Publishers. Rehof, Lars Adam, 1992. 'Human Rights and Self-Government for Indigenous Peoples', NJIL, pp. 19-41. Rosas, Allan, I 988. 'Mot en partikular bstersjoratt'. In Joenniemi, Pertti & Vesa, Unto (eds.), Sakerhetsutvecking i 6stersjoomri'tdet: tendenser, !age, framtidsperspektiv. Tampere: Freds- och konfliktforskningsinstitutets forskingsrapport, Nr. 35.

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Rotkirch, Roiger, 1986. 'The Demilitarization and Neutralization of the Aland Islands: A Regime "in European Interests" Withstanding Changing Circumstances', Journal of Peace Research, pp. 357-376. Salo, Juha, 1991. 'Self-Determination: An Overview of History and Present State with Emphasis on the CSCE Process', FYBIL, pp. 268-354. Saraviita, Ilkka, 1976. 'Synpunkter p~ skyddet for A.lands spdk- och kulturforMllanden', JFT, pp. 327-342. Schachter, Oscar, 1977. 'The Twilight Existence of Nonbinding International Agreements', AHL, pp. 296-304. Scheinin, Martin, 1991. Ihmisoikeudet Suomen oikeudessa. Jyvaskyla: Gummerus. Suy, Eric, 1962. Les Actes Juridiques Unilateraux en Droit International Public. Paris: Librairie Generale de Droit et de Jurisprudence. The Aland Islands Demilitarized Region, 1995. Mariehamn: A.lands Fredsforening. Thirlway Hugh, 1991. 'The Law and Procedure of the International Court of Justice - Part Three', BYIL, pp. 1-75. Thornberry, Patrick, 1991. International Law and the Rights of Minorities. Oxford: Clarendon Press. Verdross, Alfred & Simma, Bruno, 1984. Universelles Vi:ilkerrecht. 3rd ed. Berlin: Duncker & Humblot. Vortisch, Friedrich, 1933. Die Alandfrage. Berlin: Carl Heymanns Verlag. Widdows, Kelvin, 1979. 'What is an Agreement in International Law?', BYIL, pp. 117-149. Wolfke, Karol, 1993. Custom in Present International Law. Dordrecht: Martinus Nijhoff Publishers. Zeller, Karl, 1989. 'Das Problem der vi:ilkerrechtlichen Verankerung des Stidtirol-Pakets und die Zustandigkeit des Internationalen Gerichtshofs', Ethnos, Band 34.

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Chapter 5: The Autonomy of the Aland Islands in the Constitutional Law of Finland

l. THE NATIONAL LEGAL BASIS OF THE AUTONOMY 1.1. Act on the Autonomy ofAland The act in force on the Autonomy of Aland, given on 16 August 1991 (No.1144), entered into force on 1 January 1993. This is the third autonomy act. It replaced the Autonomy Act of 1951, which in its turn repealed the first Autonomy Act given in 1920. The Autonomy Act contains basic provisions on the substance of the autonomy of Aland. The Act sets out not only the limits of the autonomy but also basic provisions on the organisation of the legislative and administrative bodies, fundamental rights of those possessing the right of domicile (i.e., regional citizenship 1), provisions on the division of powers between the State and Aland and the economic relationship between the State and Aland, as well as provisions on settling disputes between State and regional authorities. 2 The Autonomy Act was enacted by the Parliament of Finland with the approval of the Alandic Legislative Assembly. It has been published both in the Law Gazette of Finland and in the Law Gazette of Aland. 1.2. The National Legal Protection of the Autonomy The Autonomy Act can be amended, explained or repealed only by consistent decisions of the Parliament of Finland and the Legislative Assembly of Aland. In Parliament the decision must be made by a qualified majority, i.e., in the same manner as provided for amendments of constitutional acts. 3 In the Legislative Assembly of Aland the decision must be made by at least a 2/3 majority of the votes cast.

L. Hannikainen and F. Horn (eds.), Autonomy and Demilitarisation in International Law:

The Aland Islands in a Changing Europe, 85-97.

© 1997 Kluwer Law International. Printed in the Netherlands.

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As a consequence, the formal legal protection of the Autonomy is extraordinarily strong. The rights given to Aland can never be taken away without the consent of a qualified majority of the Legislative Assembly. The legal framework of the autonomy of today can thus be studied through the Autonomy Act. This Chapter endeavours to give an adequate picture of the actual state of affairs. However, the picture would be incomplete without studying the economic relationship between the mother country and the autonomy. 1.3. The Formal Status of the Autonomy Act In the Government Bill (No. 73/1990) proposing a new Autonomy Act, the Government proposed an explicit provision according to which the Autonomy Act of Aland would be in force as a "constitutional act" 4 . However, the proposal was rejected in Parliament due to a wish to limit the number of "constitutional acts". As a compensation for the rejected proposal, in 1994 a new Chapter IVa was added to the Constitution Act of Finland. According to it, "the Region of Aland has self-government as prescribed separately". The legal impact of this provision is not quite clear. Actually it is only a kind of declaration. In theory the provision could be amended or annulled without the consent of the Alandic Legislative Assembly. Thus the national legal protection of the autonomy of Aland is not to be found in the Constitution Act of Finland, but in the Autonomy Act of Aland. Hence it can be stressed that the Autonomy Act of Aland is of an exceptionally high standing although it is not called a "constitutional act".

2. THE DIVISION OF LEGISLATIVE POWERS BETWEEN THE STATE AND ALAND

2.1. The Principle of Enumeration

One of the most important elements of Aland's autonomy is the legislative power within certain fields. The system follows the principle of enumeration: the Autonomy Act lists the matters falling within the competence of Aland on the one hand (Section 18) and those falling within the competence of the State on the other hand (Section 27). The lists are long and rather detailed. Among matters belonging to the legislative competence of Aland we should here mention: - the organisation and duties of the Legislative Assembly; - the flag and coat of arms of Aland; - municipal administration; - municipal taxation, additional tax on income and provisional extra income tax; - public order and security, fire-fighting and rescue service;

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building and planning; tenancy and rent regulation, lease of land; the protection of nature and the environment; the protection of buildings and artifacts with cultural and historical value; health care and medical treatment, social welfare; education, culture, sport and youth work; library and museum service; farming and forestry, hunting and fishing; the prevention of cruelty to animals, veterinary care; the postal service, and the right to broadcast by radio or cable in Aland; roads and canals, road traffic, local shipping lanes; trade (subject to certain exceptions); the creation of an offence and the extent of the penalty for such an offence in respect of a matter falling within the legislative coml?etence of Aland. The list is followed by a general clause according to which Aland has legislative competence in "other matters deemed to be within the legislative power of Aland in accordance with the principle underlying this Act". The legislator has in other words realised that it is impossible in advance to make a complete catalogue and to anticipate all future cases. Among matters belonging to the legislative competence of the State we should here mention: - the enactment, amendment, explanation and repeal of a constitutional act as well as an exception to a constitutional act; - the right to reside in the country, to choose a place of residence and to move from one place to another; - the use of freedom of speech, freedom of association and freedom of assembly; the confidentiality of post and telecommunications; - foreign relations (subject to the provisions concerning international treaties) and foreign trade; family and inheritance law; - company law and the keeping of accounts; - insurance contracts; - the formation and registration of pieces of real property and connected duties; - shipping lanes for merchant shipping; nuclear energy (the consent of the Government of Aland is however required for the construction, possession and operation of a nuclear power plant and the handling and stockpiling of materials therefore in Aland); - labour law (with certain exceptions); - criminal law (with the exception that the Legislative Assembly of Aland has the competence to prescribe penalties in matters falling within the competence of Aland); - administrative deprivation of personal liberty; - judicial proceedings, the judiciary;

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the Church Code and other legislation relating to religious communities; citizenship, legislation on aliens, passports; firearms and ammunition; civil defence (with certain exceptions), the armed forces and border guards; - the prohibition of the import of animals and animal products; the prevention of substances destructive to plants from entering the country; - taxes and dues (with the exception of municipal tax and some other taxes); - the issuance of paper money, foreign currencies. The catalogue of matters belonging to the competence of the State is also supplemented by a general clause according to which the State has legislative competence in other matters that are deemed to be within the legislative power of the State according to the principles underlying this Act. 2.2. Implications of the System of Division of Legislative Power The division of legislative power between the State and Aland is in principle exclusive in the sense that a State law is not in force in Aland if Aland has legislative power in the matter. In that case the State law is not even in force subsidiarily; i.e., if the Legislative Assembly of Aland has not enacted a law within a certain field of its competence, there is no law applicable and State law cannot be applied as such. Hierarchically a law of Aland is not subordinate to an ordinary law of the national Parliament. Only the Constitutional Acts and the Autonomy Act are superior. The question whether a certain matter belongs to the competence of the State or to the competence of Aland must be settled by interpretation of the Autonomy Act; interpretation is a strictly legal matter without any elements of discretion. This is the reason why a law of the national Parliament never contains provisions on its applicability in Aland. In other words it is not possible in an ordinary law of Parliament to decide whether it is applicable in Aland or not, because this follows from the Autonomy Act, and the Autonomy Act cannot be amended or explained by an "ordinary" law of the national Parliament. A provision in a State law saying that "this Law shall (or shall not) be applicable in Aland" would therefore not be appropriate. For the authorities and for the citizens the described system might- at least in principle, but not very often in practice - cause difficulties concerning the question of which provisions actually are valid in Aland. The only effective formal way to test applicability in Aland in such a case would be either to bring the matter to court or to have the Legislative Assembly of Aland enact a law. In the first case the matter could be examined by the Supreme Court, and in the latter case by the Supreme Court and the President of the Republic.

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3. THE LEGISLATIVE PROCESS - STATE SUPERVISION 3.1. Alandic Laws Legislation for Aland is enacted by the Legislative Assembly, which represents the people of the Aland Islands in matters relating to its autonomy. The 30 members of the Legislative Assembly are elected by direct and secret ballot. Suffrage is universal and equal, but only a person with the right of domicile (which, as mentioned earlier, is a kind of regional citizenship) may participate in the elections and is eligible. The sessions of the Legislative Assembly are opened and closed by the President of the Republic or, on his behalf, by the Governor. The President of the Republic has the power to dissolve the Legislative Assembly and order new elections. This can be done only after consultation with the Speaker of the Legislative Assembly. When a new law or an amendment to a law of Aland has been passed by the Legislative Assembly, it must be sent to the Ministry of Justice and to the Alandic Delegation. The Alandic Delegation is an expert body which, among other duties and upon request, gives opinions to the Council of State, the ministries thereof, the Government of Aland and the courts. The idea is that the Alandic Delegation settles potential conflicts between State authorities and Alandic authorities. In legislative matters the Delegation gives its opinion on the question of the borders between the legislative competences. In other words, the Delegation examines the laws enacted by the Legislative Assembly of Aland. The opinions of the Alandic Delegation are based on judicial - not political - discretion. The Governor of Aland - who represents the President of the Republic in Aland is usually the Chairman of the Delegation. Two members of the Delegation are elected by the Council of State, and two by the Legislative Assembly of Aland. After having received the opinion of the Alandic Delegation, the Ministry of Justice presents the law to the President of the ·Republic. If the opinion of the Alandic Delegation is that the Legislative Assembly has exceeded its legislative competence, the Ministry of Justice will always ask the Supreme Court for an opinion. Both of these opinions will form the basis for the final decision of the President of the Republic. The President has the right to veto an Alandic law, if he considers that 1) the Legislative Assembly has exceeded its legislative powers, or 2) the law relates to the external or internal security of the State. He is obliged to obtain the opinion of the Supreme Court before he can use his power of veto and declare the law annulled. Opinions of the Supreme Court are in practice asked for only when the opinion of the Alandic Delegation is that the Legislative Assembly has exceeded its legislative competence, or if the law in question concerns new areas and it could be a matter of interpretation whether it belongs to the competence of the State or Aland. The President can

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also veto only a certain part of a law; even only a certain provision can be vetoed, so that the rest of the law still enters into force. In theory the President is not legally bound by the opinion of the Supreme Court, but in practice he almost always follows it. In 1994 the opinion of the Supreme Court was obtained in 17 matters. In the same year, 49 Alandic laws were published in the Alandic Law Gazette. According to the above-mentioned provisions, the decision of the President is based strictly on legal grounds and not on political discretion. The question of external or internal security has hardly ever arisen. In practice the President has used his right of veto on the average about five times a year. The reason is often that the Legislative Assembly of Aland has exceeded its legislative powers by mistake or because of the fact that the division oflegislative powers between Aland and the State is unclear to a certain degree. It can be said that the main function of the supervision of the Alandic legislation is to ensure that the Legislative Assembly does not enact provisions within the domain of the State. 3.2. A.land's Possibilities to Influence State Legislation According to Section 22 of the Autonomy Act, the Legislative Assembly of Aland may submit initiatives on matters within the legislative power of the State. Such initiatives shall be presented to Parliament by the Government of Finland. In these cases the Government of Finland has no discretion as to whether to pass a bill or not; actually it is no more than a "post office". In principle this is of great importance, because the consequence is that Aland has the possibility to bring a matter to Parliament even if the Government does not agree. Furthermore, the Autonomy Act explicitly stipulates that an opinion shall be obtained from Aland (i.e., the Government of Aland) before the enactment of a law of Parliament, if the law is of special importance to Aland. The idea is that special provisions concerning Aland should be included in the law, if required by the conditions in Aland. However, special provisions are seldom included in laws of Parliament - a matter that often has been regretted by Alandic politicians and officials. 4. THE ADMINISTRATIVE SYSTEM - DIVISION OF POWERS

The administrative power normally follows from the legislative power; i.e., in the fields of its legislative power Aland also has administrative competence (and bears the costs for the administration). Vice versa the State has administrative powers within the frames of its legislative power. From this main rule there are certain exceptions. The Autonomy Act stipulates several

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obligations for State and/or Alandic authorities to negotiate with each other before a decision is made. In some cases a decision cannot be made without the consent of the other party. The State authorities also have an explicit obligation to aid the Alandic officials in administrative matters. Taking into account the small size of the Alandic population and administration, the described division of administrative powers would be inflexible if it did not allow exceptions. Thus, administrative powers can be transferred from Alandic authorities to State authorities and vice versa. The means for the transfer is a so-called consentaneous decree: i.e., a presidential decree issued in agreement with the Government of Aland. A precondition for a transfer of administrative powers is, in other words, a mutual agreement between the Government of Finland and the Government of Aland. Legislative powers may never be transferred by a consentaneous decree. The only way to transfer legislative powers is to amend the Autonomy Act.

5. CONFLICTS OF COMPETENCE The division of legislative and administrative powers between the State and Aland naturally causes problems in practice. The problems can be of a strictly legal nature caused by the difficulty for the legislator to express a clear division of powers. Problems can also rise because of more or less political opinions about the borders of the autonomy, or when new questions, not foreseen by the legislator, appear. It is, however, of great importance to note that every kind of disagreement on the division of powers always must be solved by legal means. The division of powers always follows from the Autonomy Act, and unclear situations are to be solved by interpretation of the Act. Thus the final word in these matters belongs to the Supreme Court and not to the Finnish Government. In practice, problems concerning the division of powers are usually solved by more or less informal consultations between the authorities. If there is a disagreement, the Alandic Delegation must, upon request, give its opinion. Should there be a conflict even after the opinion of the Delegation, a decision on the matter must be rendered by the Supreme Court. As a consequence, the Supreme Court finally decides whether a law passed by the Parliament shall be in force in Aland or whether the Legislative Assembly of Aland has the legislative power in the matter. In practice, it is most unusual that a conflict of competence is brought to the Supreme Court. The role of the Court is in fact more important within the system of supervision of the laws of Aland. When giving its opinions on new laws, the Court also gives its decisions on the delimitation of legislative powers between the State and Aland. In certain special cases explicitly mentioned in the Autonomy Act, the Alandic Delegation makes the final decision on conflicts of competence.

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These cases concern controversies about the opening of new merchant shipping lanes in Aland and the right of the State to hold real property in Aland.

6. THE ECONOMIC RELATIONS As mentioned above, a study of the autonomy of Aland from a legal point of view would be incomplete without examining the economic relationships between the State and Aland. The starting point is that legislative powers tend to lose significance in practice, if they are not combined with a certain economic autonomy. Formal competence must in other words be supplemented by economic powers. Otherwise the competence will remain only on paper. In this sense the new Autonomy Act of 1991 radically improves the situation. The former strict State control was abandoned, and instead Aland annually receives a certain sum of money called "the amount of equalisation". This amount is actually not a State subsidy, but rather a consequence of the fact that Aland has a very limited power to levy taxes (only municipal and some other minor taxes). Thus, the State levies taxes in Aland in the same way as in other parts of Finland, and these taxes should be "returned" to Aland in some way - taking into account that the State also has direct costs relating to Aland for its local administration (for example, customs and border control) and courts, but also for its infrastructure in a broader sense (for example, Alanders using the services of central hospitals in Finland). The amount of equalisation is calculated by multiplying the total State income for the year, not including new State loans, as established in the State final accounts, by a certain index. This index, called the "basis for equalisation", is at present 0.45 per cent. The Autonomy Act regulates in detail the preconditions for the alteration of this percentage. The Autonomy Act also stipulates possibilities for extraordinary grants, tax retributions and special subsidies. The main feature of the economic system is that the Alandic autonomy, by virtue of law, receives a certain sum every year. Fluctuations in the State economy affect the amount, but on the whole the system gives a certain economic security. The system has also raised the question whether Aland "gets more than it pays" or vice versa. Calculations have been made, but their reliability is uncertain. Nevertheless, its seems that in times of stable economy, Aland pays a little bit more to the State than what it receives in equalisation. The economic system includes the principle that the party having administrative powers shall also bear the costs of administration. If administrative tasks are transferred by a consentaneus decree, it must therefore also be considered whether the basis for equalisation should be altered or whether the costs can be covered in some other manner.

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In 1992 the Ministry of Justice set up a working group with representatives of both the State and Aland to examine the advantages and disadvantages of a potential transfer of tax jurisdiction to Aland. The working group's report was given in August 1994. It includes an analysis of the advantages and disadvantages of such a transfer, but does not give any recommendations. So far it has not led to further action. It seems that the State has little interest in transferring tax jurisdiction, and is rather afraid of creating an Alandic "tax haven". The Alanders continuously stress the need for diversified tax legislation in Aland and complain that the State does not understand the need for special provisions due to different economic realities. For example, Aland would like to have different provisions concerning the taxation of travel, tourism and off-shore activities.

7. THE JUDICIARY The jurisdiction in Aland is conducted by State courts, as provided by State legislation. Hence, the District Court (tingsratt) in Mariehamn is a State court. The Court of Appeal (hovratt! hovioikeus)is in Abo/Turku. The Supreme Court in Helsinki is the highest appellate court. Judicial proceedings are regulated by State legislation. In consequence, State courts have the jurisdiction to apply Alandic laws. Appeals in administrative cases may be brought, depending on the case, either to the Government of Aland or to the Administrative Court of Aland. The Administrative Court of Aland is comparable to the county administrative courts in Finland; it is an independent State court. Due to the small number of appeals in Aland, however, the Court is organised in cooperation with the District Court in Mariehamn. The appellate court is the Supreme Administrative Court in Helsinki. Appeals concerning the legality of a decision of the Government of Aland may also be brought directly before the Supreme Administrative Court.

8. THE ENTRY INTO FORCE OF INTERNATIONAL TREATIES IN ALAND Foreign relations are a matter within the competence of the State. Aland has no legal competence to conclude international treaties. The effect of international treaties within the fields of Aland's legislative competence is therefore problematic. The Autonomy Act stipulates a system according to which provisions in an international treaty ratified by Finland do not enter into force in Aland without the consent of the Legislative Assembly if the provisions, according to the Autonomy Act, are subject to the authority of Aland. Should a provision of the treaty be ,contrary to the Autonomy Act,

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the provision can enter into force in Aland only if this is provided by an act of Parliament enacted by a qualified majority and with the consent of the Legislative Assembly of Aland also given by a qualified majority (2/3). In order to make it possible for the Government of Aland to influence negotiations on treaties, the Autonomy Act stipulates obligations for the national Government to inform Aland of negotiations. For special reasons the Government of Aland must be given the opportunity to participate in the negotiations. Within the system of the European Economic Area (EEA), new EC legislation - i.e., decisions of the EEA Joint Committee - was comparable to international treaties. In consequence, the decisions of the Joint Committee had to be implemented through a national provision (depending on the case, either by a law of Parliament, a presidential decree or a decision by the Government or by a single ministry/department). If the decision of the Joint Committee contained provisions subject to the authority of Aland, the consent of the Legislative Assembly was, even in these cases, a condition for its entry into force in Aland. In reality, however, the Legislative Assembly would have had little possibility to deny consent, because the consequence would have been that the EC provisions in question would have been suspended altogether; i.e., they would not have entered into force at all within the EEA. This would have disturbed the proper functioning of the EEA Agreement.

9. kAND'S PARTICIPATION IN DECISION-MAKING WITHIN THE EUROPEAN UNION

After the Alandic referendum in November 1994, the Legislative Assembly gave its consent to the accession of Aland to the European Union 5 • According to the Declaration by the Government of Finland on the Application of the EC Treaty, the ECSC Treaty and the Euratom Treaty to the Aland Islands, dated 8 December 1994, these Treaties are applicable to the Aland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the Accession of Austria, Finland and Sweden to the European Union. 6 As a consequence of membership in the EU, part of the legislative powers, of the State as well as of Aland, have been transferred to the institutions of the EU (EC). The division of powers between the State and Aland is, however, not affected. To the extent that a matter belongs to the competence of the Union - and, according to the Autonomy Act, falls within the powers of Aland Aland shall take the measures needed for the national implementation of the EC legislation. New EC legislation is not, as it was within the EEA, comparable with international treaties, which can enter into force in Aland only with the consent of the Legislative Assembly. On the contrary, new EC legislation is also

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applicable in Aland without further consultation. It has to be implemented in Aland in the same manner as in the Member States. From this follows that the Legislative Assembly of Aland would almost completely have lost its possibility to influence Community legislation within the fields of its legislative powers, if the Autonomy Act had not been amended from the beginning of 1995. The amendment of the Act includes a new chapter with provisions on the participation of Aland in matters concerning the EU. Thus Aland is granted possibilities to participate in the national preparation of Finland's positions. Aland shall immediately be informed of draft Community legislation and has the right to participate in the organisation set up by the Government of Finland for preparing positions, as well as in the relevant committee in Parliament. One of Finland's representatives in the EU Committee of Regions shall be proposed by Aland. Aland also has the right to have a representative at the Permanent Finnish Mission in Brussels. This representative is not an ambassador, but rather a contact link whose main task is to provide Aland and the EU with information. Formal contact with the Union and with foreign States is still within the exclusive competence of the State. The division of legislative powers between the State and Aland (following from the Autonomy Act) implies that Aland shall see to it that Alandic legislation does not violate EC regulations, that complementing provisions provided for in EC regulations are also given in Aland, and that EC directives are implemented in a proper and effective manner. Any complaint concerning the implementation in Aland must be addressed to the Member State - i.e., the Republic of Finland - and not directly to Aland. In relation to the Union, Finland is responsible for the implementation of EC law in Aland even if Finland does not have any formal remedies against lack of implementation or inaccurate implementation in Aland. The President of the Republic might conceivably use his power of veto in a situation where implementation in Aland would evidently be an infringement of EC law, but he would hardly do so in situations which are open to various interpretations. Furthermore, the veto of the President of the Republic is of no use if a directive is not implemented at all by Aland. This leads to the conclusion that the only way to solve these problems is to keep up good "speaking terms" between the State and Aland. EU membership seems to increase the interaction between the Governments of the State and Aland. As of yet there has not been much practical experience of this. Time will also show if Aland 's possibilities to have direct contact with the Community will increase.

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10. CONCLUDING REMARKS On a general level, the autonomy of Aland and the Autonomy Act seem to function well. Politically most Alanders seem to be content with the basic solution; demands for re-union with Sweden are no longer heard. The political reality seems to be that the autonomy grants Aland a unique position, and that the goals which, in the beginning of the century, led to the wish to re-unite with Sweden have instead been achieved through the autonomy. From the beginning of its autonomy, Aland has consistently aimed at its extension. The State has - within certain limits - shown an understanding of this goal. As a result the Autonomy Act has been totally revised twice. Most recently the Act was amended in order to secure Aland 's participation in EU matters. On the other hand there have also been controversies between the Alandic and State governments. Aland has often had to struggle for its achievements. The problems seem to have increased during the present European integration process. Apparently the reasons are complex, but areasonable explanation is that the preparations for accession to the EU have been difficult and burdensome for the administration - both in Aland and in the mother country. In these difficult discussions, it has sometimes not been easy for Finnish politicians and civil servants to understand the specific needs of Aland. The problems have been emphasised by the fact that the process of integration, to a certain extent, conflicts with the aims of self-government. Self-government and regional legislative powers, by definition, strive toward solutions different from the central government's solutions, while integration strives toward achieving harmonised rules. Most of the problems in the relations between the State and Aland seem to depend on the surprisingly widespread ignorance in Finland about Aland's status and its historical background. The more State officials know about the autonomy and its legal basis, the fewer the problems and conflicts will be.

NOTES 1

According to the Autonomy Act, the right of domicile is acquired by a child under 18 years of age, provided that his father or mother possesses such citizenship. Finnish citizens can apply for the right of domicile after five years' continuous residence in Aland. The right of domicile is a precondition for the right to vote and stand as candidate in elections to the Legislative Assembly, to own and hold real estate in Aland, and to exercise a trade or profession in Aland. 2 The Autonomy Act also contains provisions on symbols of Aland. Since 1954 Aland has had a flag of its own, a blue-yellow-red Nordic cross flag. Aland also has its own coat of arms. Postage stamps for Aland have been issued since 1984, and since 1993 postal services, including the right to issue stamps, belongs to the competence of Aland. The Alanders hold Finnish passports; however, since 1993 the word "Aland" has been inserted in passports issued in Aland to persons holding the right of domicile of Aland. 3 In order to be adopted as a decision of Parliament, a proposal on the enactment, amendment, expounding or repeal of a "constitutional act" must be approved by a majority to be

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left in abeyance until the first regular parliamentary session following an election. In this first session, the proposal must be approved in an unamended form by a decision that has received the support of no fewer than 2/3 of the votes cast. However, if the proposal is declared urgent by a decision made in a plenary sitting that has received the support of no fewer than 5/6 of the votes cast, then the matter shall be resolved and a decision on the adoption of the proposal can be made with the support of a 2/3 majority, without leaving the matter in abeyance. 4 According to the Constitution of Finland, a "constitutional act" is an act that can be amended or repealed only by a certain qualified procedure in Parliament. The constitutional acts are five in number: 1) the Constitution Act of Finland, 2) the Parliament Act, 3) the Procedure of Parliament, 4) the Ministerial Responsibility Act, 5) the Act on the High Court of Impeachment. The Finnish Constitution is thus multi-documentary. 5 In fact, the A.landers participated in two referendums: first in the national referendum concerning Finland's accession to the Union, and then in a regional referendum concerning only the question of A.land's accession. The poll of the A.landers in the first (nation-wide) referendum was 61.2 per cent of those living in A.land who were entitled to vote. Of the total, 51.9 per cent were in favour of accession, and 48.1 per cent voted against it. In the second (regional) referendum - held after the results of the nation-wide referendum had been published - the poll was only 49.1 per cent. Of the total, 73.6 per cent were in favour of and 26.4 per cent against accession. 6 According to Protocol No. 2 on the A.land Islands: Taking into account the special status that the Aland islands enjoy under international law, the Treaties on which the European Union is founded shall apply to the Aland islands with the following derogations:

Article 1 The provisions of the EC Treaty shall not preclude the application of the existing provisions in force on 1 January 1994 on the A.land islands oh: - restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrdtt!kotiseutuoikeus (regional citizenship)* in Aland, and for legal persons, to acquire and hold real property on the A.land islands without permission by the competent authorities of the A.land islands; - restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsrdtt!kotiseutuoikeus (regional citizenship)* in A.land, or by legal persons without permission by the competent authorities of the A.land islands. ( ... )

Article 3 The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the A.land islands. * I.e., the right of domicile. The protocol uses the Swedish and Finnish terms with the English expression "regional citizenship" in brackets.

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Chapter 6: The Constitutional Setting of the Aland Islands Compared

1. INTRODUCTION 1

In societies facing minority problems and, potentially, separatism, the Alandic model of autonomy and self-government is often referred to as a solution which might be useful in certain conflict situations. The autonomy of the Aland Islands is, however, a peculiar blend of international law and constitutional law as well as of international and domestic politics. This fact amounts to a number of circumstances which might not be conducive to a direct application of the whole legal framework which forms the basis of self-government of the Aland Islands to other areas with specific legislative needs. This Chapter aims at comparing the constitutional and statutory setting of the Aland Islands with a number of other entities in European countries where a special territorial self-government of a higher order has been realised. 2 The constitutions which are covered by this Chapter are mainly West European and contain, apart from Finland and the Aland Islands, Denmark (the Faroe Islands and Greenland), France (Corsica), Spain (two basic modes of regional autonomy), Portugal (the Azores and Madeira), and Italy (two basic modes of regions), as well as Croatia (municipalities with a special self-governing status, or autonomous regions). 3 We will exclude federal arrangements 4 and concentrate on so-called unitary States which nevertheless have provided space for special government breaking the hierarchical model of the unitary State. 5 Because the autonomy arrangements of both Spain and Italy approach federalism, 6 it would be possible to exclude both countries, but because "minority protection" in a broad sense is one target of these regulations and because the regional organisation displays internal variations not usually found in federal countries, we have included them in our study. We will try to emphasise examples from these countries which, at the same time, display more of the minority protection component than most other areas in the two countries. However, we will concentrate more on the

L. Hannikainen and F. Horn (eds.), Autonomy and Demilitarisation in International Law: The Aland Islands in a Changing Europe, 99-129. © 1997 Kluwer Law International. Printed in the Netherland~.

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"institutional" part of autonomy than on variations in the material content of the term. Instead of provincial administration, which mainly belongs to the terminology of the unitary State,7 we will look into constitutional and statutory solutions which try to regulate regionalism by means of autonomous or autonomy-like areas and by means of devolution. The inhabitants of these areas are bound together by, for instance, their common ethnicity, language, history, separate territory, or perhaps even economy to such a degree that special constitutional arrangements have become necessary. These constitutional arrangements may have been helpful in avoiding uncomfortable situations, such as violent actions, but they also manifest a certain respect for and understanding of the special qualities of the areas in question. 8 For instance, Section 227 of the Constitution of Portugal concludes that "(t)he special political and administrative arrangements for the archipelagos of the Azores and Madeira shall be based on their geographical, economic, and social and cultural characteristics and on the historic aspirations of the peoples of the islands to autonomy". The Preamble to the Danish Act Respecting the Home Government of the Faroe Islands (Act No. 137 of23 March 1948) states in turn that "We, Frederik the Ninth (... ) hereby proclaim: In recognition of the special position which the Faroe Islands occupy nationally, historically, and geographically within the Kingdom( ... )." We will look into the question of whether or not the constitutional or other statutory provisions on autonomy are subject to qualified amending procedures where the national constitution-maker or legislator is to some extent bound by the opinion of the autonomous area concerned so that autonomy becomes an entrenched element in the constitutional framework. 9 We will, finally, try to come to a conclusion on whether or not there exists a concept of autonomy at the level of constitutional law in Europe.

2. AUTONOMY AND SELF-DETERMINATION Why is the Alandic model so attractive? In the contemporary world, its appeal seems to depend on its close relationship with the concept of selfdetermination in international law. This concept, again, has various interrelated dimensions, some of which are relevant for areas which form parts of a State. In this respect, people's right to self-determination can be understood, inter alia, as a right of (a certain part of) the population to choose the State under the authority of which they live. This was a common concept with respect to territorial changes after the First World War and concerned almost exclusively areas inhabited by a minority population. 10 This version of the concept of self-determination had a tremendous appeal on the Aland Islands

p Chapter 6: The Constitutional Setting of the Aland Islands Compared 101 at the end of the 191 Os and the beginning of the 1920s and resulted, inter alia, in the organisation of two petition campaigns on the Islands advocating secession from Finland and accession to Sweden. However, after the consolidation of the position of Aland as an autonomous part of Finland, the issue has, with certain smaller exceptions which are mainly of an internal character, ceased to be contentious. It is possible to envision a continuum where the starting point is made up by (A) the existence of a minority population in a unitary State, followed by (B) arrangements involving a specific position for a minority within that State, various autonomy arrangements, involving (C) a non-territorial personal or cultural autonomy 11 and (D) territorial autonomy, and finally (E) secession, either with the intent to create a State in its own right within the area in question or to accede to an existing State consisting of a kin-people. 12 Combining these points with rights at the level of international law, one could compose the following visualisation: Table 1. Indication of the possible relationship between international law and constitutional law

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International human rights

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