Law, Social Justice & Global Development
(An Electronic Law Journal)
Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States
Edited by Yash Ghai
Cambridge University Press (2000)
Reviewed by Sitharamam Kakarala
National Law School of India University
This is a book review published on: 14 December 2001
Citation: Kakarala S, 'Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States', 2001 (2) Law, Social Justice & Global Development Journal (LGD).
This volume under review adds a valuable new dimension to the on going debates on ethnicity, identity, self-determination and autonomy. Self-consciously limited in scope, a set of twelve essays, including an incisive overview by the editor, grapple with issue of autonomy and identity, arguably one of the most troubling issues of our times, in multi-ethnic states. The variety of case studies range from Canada, Spain. Cyprus and the former Yugoslavia from the West, to China, India and Sri Lanka in Asia, to South Africa, Eritrea/Ethiopia in Africa, to Papua New Guinea and Australia. While it is always difficult to transform the variety in terms of geographies, ethnicities and histories per se into direct ‘representative’ experiences of other states and peoples, particularly given the extraordinarily complex nature of claims of self-determination and autonomy. Put together these essays provide valuable insights into where and under what circumstances certain states and peoples could successfully negotiate issues of autonomy or failed to do so.
The core contribution of the volume lies in the self-limiting approach of scrutinising constitutional engineering as a mediating opportunity to address the issues of ethnicity and autonomy. This approach, though not entirely unknown, marks a departure from the other prevalent approaches on the theme in some crucial respects. A predominantly common approach in many studies has been scrutinising the issue in the framework of international human rights lawi. Some other prominent studies went into sociological analyses of conflict and violence between states and peoplesii. A major difference between these approaches and the approach in Autonomy and Ethnicity relates to finding solutions. While the international human rights approach tends to privilege the interventionism of the international community, a much troubled area of negotiation in a ‘community’ still dominated by ‘sovereign’ state actors who are unwilling for international mediation. The sociological studies tend to point towards more fundamental socio-economic and cultural reasons for the trouble, whose corrective process is both immensely complex and seemingly impossible. On the contrary, the approach in the Autonomy and Ethnicity minimises controversy by confining to an analysis of existing constitutional frameworks that help or hinder autonomy. It also tries to evolve certain broad guidelines, through an analysis of comparative experiences of constitutional engineering, which helps facilitate autonomy in a gradual way.
The book is organised into three broad sections, although the editor’s introductory chapter, framework of analysis, is naturally separated from the case studies. Part I has five case studies under the rubric of ‘Operating Autonomies’, Part II has one study under the rubric of ‘Failed Autonomies’, and Part III has five case studies under the rubric of ‘Seeking Autonomies’.
Yash Ghai’s introductory chapter is the converging point for both the introduction as well as conclusion, in the absence of a formal concluding chapter at the end. It lays down the basic framework of analysis with necessary conceptual clarifications, and simultaneously contains the observations drawn from the case studies. It would probably be difficult to be more precise than him in explaining the core framework of the analysis, which he summarises as exploring ‘the dialectics of ethnicity and territoriality as mediated by a variety of forms of autonomy’. His view on ethnicity as a living process that continuously interacts and transmutates within and vis-à-vis modernity rather than being ‘primordial’ is both appealing as well as brings in the experience of the contemporary theorisations on ‘hybridity’ of identity. The nine observations-cum-propositions at the end represent interesting insights. For example, ‘autonomy is easier to concede and likely to succeed when there is no dispute about sovereignty’, as well as reaffirm some of the known liberal beliefs such as ‘Autonomy does not promote secession; on the contrary, true autonomy prevents secession’. However, the proposition that ‘autonomy is more likely to be negotiated and to succeed if there are several ethnic groups rather than two’ is drawn predominantly from such vexed contexts as Sri Lanka-Tamil polarity, Greek-Turkish polarity (Cyprus). Further the optimistic view about the multi-polarity contexts like India is likely to remain problematic. For, the overall multi-polarity in India did not help in reducing localised bi-polarity - for various and different reasons, there have been growing tensions, at times resulting in violent clashes, between local ethnic groups such as the conflict between Nagas and Kukis in the North-East or Tamils and Kannadigas in the South, which are growing into a formidable challenge to the existing federal structure.
Part I contains five case studies of ‘operating autonomies’Canada, India, China, South Africa and Spain. As is self-evident, these studies represent tremendous pluralism within them in terms of political and judicial structures, development levels, ethnic pluralism. While ethnic pluralism is the most explored theme in the case studies, followed by variations in political structures, variations in the levels of development is perhaps the least explored themes. However, a core theme that cuts across the studies is ‘symmetric’ versus ‘asymmetric’ federalism as techniques of constitutional engineering. It emerges strongly from most studies that as ‘politics of recognition’ seems to be the trend of response to multiculturalism, many states are tending to resort to cautious and graded negotiations with asserting ethnic groups. From this it goes without saying that one method by which states are negotiating autonomy challenges is through resorting to asymmetric federalism. But there is need to scrutinise the generalisations drawn in these studies in a more comparative way against a matrix of intervening variables, as it is likely to unfold further complexity. For example, China’s asymmetric federalism is more in the context of economic liberalism combined with political authoritarianism, wherein the essence of ‘federalism’ is more management of different economic systems under a common political structure mediated by an authoritarian state. But China has not resorted to asymmetric federalism with regard to its minorities. Whereas, the Canadian case represents autonomy claims emerging from extreme linguistic bi-polarity, but strongly mediated by the contexts of an advanced market economy and a responsive judiciary. As a result, the Canadian Supreme Court’s intervention, that Quebec did not have a right to secede within the constitution, but at the same time, when such a claim is supported by a popular vote in Quebec, the rest of Canadians have an obligation to negotiate the terms of secession keeping the interests of all parties at the centre is interesting, but an unlikely possibility in most third world contextsboth for the reasons of susceptibility of judicial autonomy to the executive pressures as well as the difference in economic development levels; such a thing is impossible to imagine in the cases of Kashmir or Jafna. A third dimension of complexity in the asymmetric federalism that is perhaps equally left un-addressed is religion. In the asymmetric federalism of Canada and Spain the ethnic identities are predominantly linguistic (English v. French speaking in Canada; Castilian v. other linguistic groups in Spain), wherein the states seems to have negotiated or being negotiated with a relative sense of peace. In South Africa the asymmetric federalism shaped by tribal-cum-linguistic identity on the one hand and race on the other, is too brief an experience to comment on, but the author suggests that the state has been quite successful in negotiating the change.iii However, the experience in India is again a more difficult puzzle, for partly it is mediated by the variable of religion. Needless to say that India has two of the longest outstanding challenges of autonomy within its fold - Kashmir and Nagas, the origins of both leading to mid-1940s. These two groups enjoy special status in the constitution, making way for asymmetric federalism. But that asymmetry caused anger among the right-wing Hindu revivalist groups from the beginning, more linked to the Islamic dimension and Pakistan question, and still continue to shape the current situation regarding the autonomy challenge in Kashmir. Although it is not the same case with regard to the North-East, the special constitutional guarantees to the region did not help the Indian state, which could be seen from the continuing existence of Armed Forces Special Powers Act of 1958 for over four decades. This brings the final point on the section, that India could be both a ‘successful’ case study to include in ‘operating autonomies’ (more in regard to the symmetric federalism, which is the focus of the author of the chapter) as well as an ‘unsuccessful’ case study to include in ‘seeking autonomies’ (more in the asymmetric federalism, a theme which is largely untouched by the author of the chapter).
Part II deals with the failed autonomy in the former Yugoslavia. It could raise some sensitive questions, as the ‘failed’ nature of autonomy is not entirely because of ethnic pluralism or the ‘failure’ of constitutional engineering, but more because of the non-existence of constitutional engineering. That is, despite being a constitutionally federal regime, and high-sounding provisions on autonomy and self-determination, the political system in Yugoslavia was more in tune with decentralisation within authoritarian structure of power rather than democratic decentralisation (p. 149), which brings the generally held belief that the long-term success or failure of autonomy demands have a great bearing on the infusion of democratic devolution of power, however slow and gradual that process may be.
Part III contains five case studies of ‘seeking autonomy’Ethiopia/Eritrea, Sri Lanka, Cyprus, Papua New Guinea and Indigenous Australians. Like the case studies in ‘operating autonomies’ these studies too represent similar great diversity amongst themselves. Although a common theme among all is apparent bi-polarity of ethnic groups, that is mediated by on the one hand, a complex set of historical practices that are subsequently recognised as injustice (example, application of the principle of terra nullius in Australia, even when it was inhabited by more than 700,000 indigenous people in eighteenth century), prolonged suffering of discrimination and injustice (Sri Lanka), and on the other hand, a strong sense of separate identity based on cultural, linguistic and skin colour differences (Papua New Guinea), historical consolidation of two ethnic groups on a territory, who in their respective original locations are also two antagonistic nations (Cyprus), or a more complex situation arising from state failures (Ethiopia/Eritrea). While this vast diversity makes the proposition that bi-polarity could be the source of failure of autonomy in these locations vulnerable, it nevertheless drives the point home that bi-polarity is a crucial ingredient that needs more rigorous scrutiny in the autonomy demands.
This review will in a way be incomplete if I don’t raise an important omission or rather insufficiently addressed issue, which I felt although my reading. That is, while, as many authors in this book suggested, that the ethnic identities have been constantly interacted, transformed, reinforced or even constructed by the process of modernity, a core institutional representation of that modernity is nothing other than the model of European nation-state that became fait accompli in all the third world post-colonial histories. It is increasingly been recognised that a main cause of ethnic conflicts is such mutilated negotiations within the constraints of imposed frameworks of colonial legacy mediated by uti possidetis, which privileges territories over peopleiv. The devastation of this framework caused on Africa led a native historian to call the nation-state as a curse of Africav. Although few authors in this volume vaguely hinted about the problems of finding solutions to autonomy challenges posed by ethnic groups within the existing nation-state framework,vi the engagement was rather cursory. One would have liked a more in depth engagement on the theme so that the concept of constitutional engineering transcends from being predominantly modernistic, that is, Euro-centric, to a more effective mediating tool between modernity and its discontents.
The book in its own right could, however, be a very interesting and likely to become a very popular reading for students and scholars from as diverse a background as Human Rights, Comparative Constitutional Law, Federalism, and Ethnic Studies.
Within this approach, there are variations
, for some strictly view the issue within a rather narrow minority rights framework and some others viewing it from a broader self-determination vantage point. The following studies represent a larger trend on this theme. Hurst Hannum. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights
. (Philadelphia: University of Pennsylvania Press, 1996); Donald Clark and Robert G. Williamson. Self-Determination: International Perspectives
. (New York: St. Martin's Press, 1996).
ii A prominent project on this theme in recent times is study on ‘States against Peoples’ carried out by Ted Gurr. See Ted Robert Gurr. Ethnic Conflict in World Politics. (Boulder, CO: Westview Press, 1994).
iii For example, ‘the IFP in KwaZulou-Natal has moved from a position of near-total antagonism to the ANC to one in which portions of the party have even been prepared to discuss merger with the ANC.’ p. 118.
iv For example, this idea has been explored at length by Guyora Binder
, ‘The Case for Self-Determination’, Stanford Journal of International Law
, 29, 1993.
v Basil Davidson, The Black Man’s Burden: Africa and the Curse of the Nation-State. Oxford: James Currey, 1992.
vi For example, commenting on a possible futuristic solution for Ethiopia/Eritrea conflict, James Paul argues that
, ‘It [the case study] suggests the limitationsand risksof efforts to alleviate grievances, generated by state failure, by recourse to problematic, officially imposed theories of ethnicity, self-determination and ethinic federalism, or by recourse to dogmatic, official doctrines prescribing national unity and centralised governance. It suggests the need to convert juridical states into organic social formationsand the need to rethink the fundamental tasks of states in the African context.
’ (Emphasis added), p.192.