Guide Escaping the Self-Determination Trap

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David B. Keith Krause and W. Lerche, Thesis on file in McGill University Edward A. Thesis on file in George Washington University Robert Z. Peter M. Michael D. Terrence M. Michael Lowy, Fatherland or Mother Earth? Luis E.

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Lugo, Sovereignty at the Crossroads? Macedo and A. John Mackinlay and Peter Cross eds. McCorquodale ed. Self-determination in International Law Aldershot: Ashgate, Samuel M. John J. Monty G. Thesis on file at Princeton University Robert W. Thomas A. Marvin W. James H. William R. Taurus, Hein, Mark L. Karen Mundy, et al. Thomas D. Thesis on file at University of California- Davis Ved P. Abeysinghe M. Thesis on file at Columbia University Gerald L. Kaarle Nordenstrengand and Herbert I. Manon Olsthoorn et al. Opello and Stephen J. Diane F. Andrew W. Orridge and Colin H. Albert J.

Paolini et al. Christopher O. Thesis on file at University of Virginia Thesis on file at University of Georgia, Randolph R. Stephen J. Andrew Reynolds ed. Henry J. Sureda A. Dennis A. James N. Rosenau, et al. Rudolph C. David J. Westport, CT: Quorom Books, Milan Sahovic ed. Thesis on file at University of Essex Robert K. Harris O. Gertrude E.

Harry D. Peter P. Schweitzer et al. Bereket H. Mortimer N. Surya P. Malcolm N.

Escaping the Self-Determination Trap

Kamal S. Marc A. Gerry J. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. Of course, this expansive reading of a right to constitutional self-determination may not yet be firmly established in international law — general practice still appears to require an express confirmation of a right to secession in the constitution in order to generate a definite international legal entitlement to secede.

Moreover, settlements such as those of Southern Sudan or Bougainville, which actually provide for loose federation as an interim step towards a referendum on independence, are bound to strengthen this impression. For, where sovereignty is expressly allocated to constituent units or shared by them and the centre, a stronger claim of constitutional self-determination may be made than in cases of federal authority devolved from the centre to constituent republics.

The theory is that in such cases sovereign constituent units have transferred powers to the centre rather than the other way around and, accordingly, they may recapture their full sovereignty by seeking dissolution of the federal or confederal ties they have freely accepted. In this way, the question of whether original sovereignty lies with the centre or with each of the two constituent entities has been sidestepped.

It lies with both the centre and the constituent states. Given this unusual construction, it was, however, found necessary expressly to confirm: The United Cyprus Republic is an independent state in the form of an indissoluble partnership, with a federal government and two equal constituent states, the Greek Cypriot State and the Turkish Cypriot State. Cyprus is a member of the United Nations and has a single international legal personality and sovereignty. While this provision clearly confirms singular legal personality for Cyprus at the international level, it retains the theory of two sovereign entities when analysed from within.

Cyprus is a somewhat special case, as the settlement proposal provided for only a very limited element of integration between the two constituent entities. A land corridor connecting the territory with Armenia and certain outlying regions has also been occupied since that date. A cease-fire was achieved in In , the OSCE called for a settlement respecting the territorial integrity of Azerbaijan, while offering: Legal status of Nagorno-Karabakh defined in an agreement based on self-determination which confers on Nagorno-Karabakh the highest degree of self-rule within Azerbaijan.

Azerbaijani laws, regulations, and executive directives would have legal force in Nagorno-Karabakh only as long as they did not contradict the latter's constitution and laws. Karabakh residents would travel abroad with specially marked Azerbaijani passports. This would also involve the right to have diplomatic missions abroad, which would nonetheless have to be affiliated with Azerbaijani embassies.

This example, together with the proposed Cyprus settlement, shows how far international actors and agencies are willing to go in order to retain, nominally, the doctrine of territorial unity of states. In these two instances in particular, where effective control over Northern Cyprus and Nagorno-Karabakh respectively was obtained in conjunction with the use of foreign military forces, a settlement formally ratifying the disruption of the territorial unity of the state under attack would have been legally difficult. The doctrine of jus cogens , which uncontroversially includes the prohibition on the use of force, would inhibit such an approach.

On the other hand, a peaceful and effective reincorporation would not appear feasible. Hence, both settlements largely retain the de facto result obtained through the use of force, while de jure restoring the territorial unity of the state. A similar approach was taken in relation to Bosnia and Herzegovina, which had also suffered territorial division as a result of the use of external armed force and the gravest of violations of humanitarian obligations.

Recognizing the reality as it then was, the Bosnia Herzegovina settlement achieved at Dayton in also provided a settlement consisting of entities endowed with quasi-sovereign powers. In this instance, the disintegrative force of confederal status was meant to be flanked by complex power-sharing. This would allow the entities fully to retain and develop their separate powers while sharing control over the limited competences of the central state. In fact, contrary to widespread expectation, the state has managed to grow together to some extent since then, although an attempt to formalize this achievement through integrative constitutional revisions failed early in The Dayton Accords on Bosnia and Herzegovina of 14 December confirm the statehood and continued legal personality of the state of Bosnia and Herzegovina.

The latter, in turn, is composed of cantons which are either Bosniak or ethnic Croat dominated, and have aligned with one another accordingly. However, the feared merger of Republika Srpska with Serbia and of the Croat cantons with Croatia is precluded by the agreement, which confirms the commitment of the parties to the sovereignty, territorial integrity, and political independence of Bosnia and Herzegovina. The enforced continuation of territorial unity is meant to be eased by consociationalist power-sharing techniques. Weak central authority is balanced with extensive human rights provisions, which are, however, not always effectively enforceable at the central level.

Very extensive consociational mechanisms of co-decision, disproportionate representation and veto provisions are not coupled with the necessary effective dispute resolution mechanism. Instead, in practice, decision-making at the international level has had to take on this role.

There is also provision for excessive executive representation in the government and in executive agencies at the central level, and separate agencies of governance at the entity, federal, and cantonal levels. At the outset, there were even separate armed forces of both entities. The combination of a confederal union composed of two entities, one of which is itself a federation and the other a highly centralist component republic, is certainly unusual, and can be explained only in the light of the results of the armed conflict when, in , violence was finally arrested in Bosnia.

However, asymmetrical federal or confederal settlements are by no means uncommon. As was noted already, asymmetrical settlements of this kind generally occur where the secessionist entity has effectively escaped state control. Another very complex and highly asymmetrical settlement has emerged in relation to Sudan. As will be noted later, the Machakos Protocol offers a quasi-confederal union between the North and South for an interim period of six years.

Other parts of the package that was to become the Sudan settlement offer a somewhat special status to the capital region and to several component states on the frontline between North and South. In addition to the Southern settlement, two further settlement documents have been generated. The first concerns Darfur. It is at present not fully accepted by all factions in western Sudan, and its status is therefore somewhat uncertain. The Republic of Sudan has a federal system of government in which power shall effectively be devolved.

Pending a final decision on the status of Darfur in accordance with this Agreement, responsibility shall be distributed between the national and other levels of government in accordance with the provisions of the Constitution. However, there is an option for the creation of a new layer of governance, at the regional level.

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An interim authority for the Darfur region is to be created. The authority will also ensure that: 78 The permanent status of Darfur shall be decided through a referendum held simultaneously in the three states of Darfur. In the referendum, the following options for the political administration of Darfur shall be presented. In either instance, the character of Darfur, as defined by historical and cultural tradition and ties shall be respected. The settlement offers a somewhat enhanced federal status to the three western states, in particular in relation to wealth-sharing, development, and transfer of federal resources.

However, it is also possible for the West to transform itself into an asymmetric region within the federation to enjoy these benefits together by forming a unit of self-government. Eastern Sudan, on the other hand, has achieved less of a status. The Republic of the Sudan is a united, independent, and sovereign state.

Sovereignty is vested in the people and shall be exercised by the State in accordance with the National Interim Constitution into which this Agreement shall be incorporated. This is balanced by the confirmation that: A federal system of government, with an effective devolution of powers and a clear distribution of responsibilities between the centre and other levels of government, including local administration, is essential to ensure fair and equitable participation of the citizens of the Sudan in general and the people of Eastern Sudan in particular.

Instead of forming their own region going beyond coordination and cooperation, the Eastern States are in fact bound more closely into the overall state by the application of integrative power-sharing techniques. Hence, the East gains weight in central decision-making, a fairer representation of Easterners in the federal executive and, crucially as always in this region, an element of wealth-sharing.

Another example of a somewhat flexible federal geometry is furnished by the new Iraqi constitution. According to Article 1: The Republic of Iraq is a single, federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic, and this Constitution is a guarantor of the unity of Iraq. The federal system is composed of a capital city area exercising decentralized powers, regions, and governorates.

The interesting aspect, again, relates to the regions. Regions can establish their own constitution and structures of regional authorities and can exercise all powers not exclusively assigned to the centre. In essence, they can constitute themselves into federal units only loosely bounded by the constitutional system. This may be done by one single governorate or in conjunction with one or more others, following a referendum. Hence, the presently unipolar asymmetry in the Iraqi constitution may, over time, be changed into a more complex asymmetry, or, ultimately, the state may transform itself into a full federation of regions for instance, North, Centre, and South under the existing constitution.

Another example of a proposed complex asymmetry is Moldova. As we noted, after a period of armed unrest Gagauzia was granted asymmetrical autonomy in Accordingly, a very loose association between Moldova and Transdniestria might be expected. This would take account of the realities on the ground, without creating a precedent in favour of disrupting territorial unity.

The preamble to the document misses the traditional reference to territorial unity and integrity. The absence of the usual, more direct commitment to the territorial unity and integrity of Moldova is balanced by a Joint Statement by the presidents of the Russian Federation and the Ukraine adopted in connection with the Memorandum in which both governments: Declare that the provisions of the Memorandum cannot contradict the generally accepted norms of international law, and also will not be interpreted or acted upon in contradiction with existing international agreements, decisions of the OSCE, the Joint Declaration of 19 January of the Presidents of the Russian Federation, Ukraine, and the Republic of Moldova, which recognize the sovereignty and territorial integrity of the Republic of Moldova.

In this way, the unwillingness of Transdniestria to commit itself altogether too expressly to the territorial unity of Moldova at this early stage of agreement, before its status had been formally settled, could be compensated for by a commitment to the continued territorial integrity of Moldova on the part of its principal sponsor the Russian Federation and the neighbouring state controlling its eastward boundary.

Subjects of the federation have the right to leave the federation in case a decision is taken to unite the federation with another state and or in connection with the federation's full loss of sovereignty. This proposal for conditionality of a right of secession finds its counterpart, and presumably inspiration, in a provision of the Gagauzia settlement. The Russian proposal was much criticized due to its emphasis on wide powers for Transdniestria, the insistence of the Russian Federation to link a constitutional settlement to the permanent demilitarization of Moldova, and the lack of express protection of the continued territorial unity of the state.

National sovereignty is vested in the people of Moldova, who are the only source of state authority in the Federal State. The proposal represents a significant backtracking from the far more open document of Clearly, Transdniestria was now offered an asymmetrical federal status firmly embedded in the overall constitutional order of Moldova. However, the Moldovan central authorities and the Moldovan parliament remained concerned about the consequences of federalization even as foreseen in the joint proposal, and were also opposed to a general revision of the state constitution.

Transdniestria, on the other hand, saw little advantage to be gained from settling, given the relatively comfortable status quo. Another year later, in , the Ukraine put forward its own settlement plan. However, the events in Georgia of August have led the parties to renew their search for a settlement and a revival of some of the previously discussed solutions is expected.

The events in Georgia, of course, were preceded by their own protracted history of settlement attempts. As opposed to Transdniestria, however, the territories border Russia directly. The UN Security Council had firmly committed itself to the maintenance of the territorial integrity and unity of Georgia.

Differentiating International Terrorism and ‘Peoples’: Struggles for Self-Determination

In relation to South Ossetia an initial settlement memorandum was achieved in After much discussion about a federalization of Georgia, the Georgian government instead put forward a number of settlement plans based on asymmetrical autonomy designs. A settlement for Abkhazia, which had historically enjoyed a greater degree of self-government than South Ossetia, has also remained elusive. In fact, the situation became tenser, with the occasional invocation of the spectre of a possible incorporation of Abkhazia and South Ossetia into the Russian Federation if Kosovo gained independence — a prospect which led the Georgian President to declare at the UN General Assembly: I wish to remind all present that my country's territories, just like yours, are not for sale or exchange.

Any hint of a precedent for Abkhasia and South Ossetia would therefore be both inappropriate and reckless. The foundation of modern peace and security is Europe is based directly on the principle of respect for territorial integrity and sovereignty. Indeed, it is the cornerstone of contemporary international order. In fact, in the wake of armed action which took place in relation to South Ossetia in August , Russia significantly increased its troop presence in that territory and in Abkhazia, recognizing the purported independence of both soon afterwards.

Article 4 underlines this statement, confirming that the sovereignty of the Federation extends throughout its entire territory. Of course, in reality the Russian Federal constitution in turn establishes its superiority over legal acts of a federal subject. Chechnya, too, had concluded a treaty relationship with the Russian Federation. Although the entity was offered constitutional self-determination in the agreements of —, to be actualized by the end of , it was forcibly reincorporated into the Russian Federation. The sovereignty of the Chechen Republic is expressed in the possession of the full authority legislative, executive and judicial outside of the jurisdiction of the Russian Federation and outside the authority over objects of shared jurisdiction between the Russian Federation and the Chechen Republic, and is to be an inalienable part of the Chechen Republic.

The perhaps surprising affirmation of the inalienable sovereignty being vested in the Republic may be a result of the overall structure of the Russian Federation and the previous Soviet constitutional history. Naturally, federations which have gone through violent conflict will tend to be particularly concerned about territorial unity at the victorious conclusion of the conflict, even if there is no settlement. This is evident in the case of the Federal Republic of Nigeria, which had been subjected to significant secessionist strife in the past, and where the potential for secessionist violence is never far away.

When autonomy or federalization is not acceptable to one side and secession is not on the cards for the other, the option of a deferral of the issue comes to the fore. This allows both sides to retain their legal positions. In the meantime, they may enter into negotiations on a substantive settlement or establish an agreed interim phase of autonomous administration until final settlement negotiations can take place.

For instance, under international pressure, Lithuania suspended the application of its declaration concerning independence to facilitate negotiations on an agreed divorce.

Accordingly, this option bears the risk of enhancing the position of the party which benefits from the status quo. Indeed, as the latest events in Abkhazia and South Ossetia have shown, this may extend to an attempted consolidation of de facto independence over time. Nevertheless, deferment of the self-determination issue to another time and mechanism can be more than a formalized way of ignoring the problem. For, in agreeing to address the issue in the future lies a recognition that there is an issue to be addressed — this may include an acknowledgement that the case, at least potentially, may indeed be one of self-determination.

In other words, this technique does not resolve the self-determination issue, but it recognizes that there is an issue that needs resolving. For instance, the Brioni agreement was adopted at a time when it was far from certain that the unilateral declarations of independence of Croatia and Slovenia would attract international support. Deferment of the issue was introduced into the Rambouillet settlement of Following upon that period of three years, Kosovo insisted, there would need to be a referendum on independence.

On the other hand, in a crucial provision, it was stated that: Three years after the entry into force of this Agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, each Party's efforts regarding the implementation of this Agreement, and the Helsinki Final Act, and to undertake a comprehensive assessment of the implementation of this Agreement and to consider proposals by any Party for additional measures.

This provision was of course not free of deliberate ambiguity. The reference to the Helsinki Final Act, which is generally taken to emphasize territorial unity over self-determination in the sense of secession, was regarded as strengthening the position of the Yugoslav government.

This latter point was confirmed in a confidential side-letter issued to Kosovo by the US delegation. While there may be dispute about the substance of the provision in terms of a possible change of status for Kosovo, it consists of course principally of a requirement of process. However, rather than necessarily achieving a final settlement for Kosovo, the meeting was only to determine the mechanism that would be applied in achieving such a settlement. Of course, the Rambouillet agreement remained unimplemented. Instead, a military confrontation ensued. That resolution also provides for a fairly complex approach to the underlying self-determination issue.

Again, the resolution restates the commitments of UN member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. It also recalls its previous call for substantial autonomy and meaningful self-administration for Kosovo. That statement refers to:. A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of the KLA; ….

The meaning of these provisions is of course subject to dispute. The Federal Republic of Yugoslavia has pointed to the strong reference to territorial integrity and political independence. Still, there is a cross-reference to the Rambouillet accords, which shall be fully taken into account. A more careful reading of the provisions in the resolution and its annexes, however, reveals a somewhat more surprising result. That is to say, they are not focused on final status negotiations, but instead establish a limitation for an interim settlement in advance of a determination of final status much like Rambouillet.

As was noted above, these are ambiguous, referring both to the Helsinki accords and also to the exercise of the will of the people, presumably through a referendum. In actual practice, the UN Mission in Kosovo proceeded quite swiftly to establish an interim arrangement for self-government. After having set up a Joint Interim Administrative Structure within six months of the termination of hostilities, a full constitutional framework document for provisional self-government was promulgated on 15 May There is no express reference to the continued territorial integrity of the Federal Republic of Yugoslavia in that document.

Negotiations on final status, however, commenced significantly later than after the three years envisaged at chateau Rambouillet. The Vienna discussions began in A comprehensive settlement proposal emerged in March The balancing of self-determination claims is an innovative way of overcoming the mutually exclusive positions of both sides in a self-determination conflict.

Essentially, balancing allows both sides to claim that their view has prevailed, and that their legal position has been preserved in the settlement. The agreement starts by recognizing the self-determination dimension and its application to the case of Ireland and Northern Ireland. Then the agreement addresses the thorny issue of identifying the self-determination entity — is it the island of Ireland as a whole, or is it the North? The parties: i. Recognize the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland;.

Recognize that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland;.

The first paragraph appears to identify the North as the self-determination unit. Its decision alone appears to determine continued union or a merger with the Republic of Ireland. However, the second paragraph has been crafted to allow the opposing interpretation. Under this reading, it is one act of self-determination appertaining to one entity. The fact that it is administered through two referenda is merely a procedural issue, and not a substantive one affecting the definition of the entity. This sense is confirmed by paragraph vi of the same Article where the parties:.

Affirm that if, in the future, the people of the island of Ireland exercise their right of self-determination on the basis set out in sections i and ii above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish. Once again, the focus seems to be on the people of the island of Ireland as the subject of the right. However, this is counterbalanced by another paragraph wherein the parties: Acknowledge that while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland's status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people;.

This clause could be seen formally to establish a constitutional right to self-determination. While previously the United Kingdom had indicated less formally that it would comply with the wish of the population of Northern Ireland to join the Republic of Ireland should this be made manifest in a referendum in the North, this has now been made express subject to the doctrine of parliamentary sovereignty. However, one must note that this is not a right of self-determination in the full sense. Instead, it is a right to opt for a specific territorial change, moving sovereignty in relation to Northern Ireland from the United Kingdom to the Republic of Ireland.

Other options, such as independence for Northern Ireland, are not available. No further poll is to be held for seven years after a referendum which has rejected a change in territorial status. This provision makes a change virtually impossible until a significant demographic shift has occurred, or until popular sentiment in the North has changed dramatically due to the experience of the new complex power-sharing arrangements introduced by the accord. That arrangement provides for multi-layered governance from the local level to the level of Northern Ireland, the level of UK authority, and joint Anglo-Irish mechanisms.

A further technique of addressing self-determination disputes also seeks to achieve delay in implementing self-determination that is agreed upon in principle. This is the mechanism of generating interim periods in advance of administering the act of self-determination. There are two types of cases in this category of deferred implementation. The first type includes cases where self-determination is granted or confirmed, but the central government and the secessionist leadership have different expectations as to the likely outcome of the act of self-determination. The entity may opt for continued integration with the state, or for independence.

The interim period is therefore open — it is designed to offer space for campaigning for the one or other solution, or in some instances for continued unity, and for the preparation for the act of self-determination. A second type of deferment concerns situations where it is clear that, after an agreed period of standstill, self-determination and almost inevitably secession will occur.

In this type of case, the standstill period can be devoted to planning for the post-referendum period. One proposal for interim governance has been put forward in relation to the long-running Western Sahara dispute. Like that of East Timor before it, the case of Western Sahara is somewhat special, given its context of unfulfilled colonial self-determination. In the peace plan for self-determination of the people of Western Sahara of 23 May , it is clarified that the purpose of the plan is to achieve a political solution to the conflict in Western Sahara which provides for self-determination, as contemplated in paragraph 1 of Security Council Resolution , of 30 July The plan then proposed: A referendum to determine the final status of Western Sahara shall be held no earlier than four and no later than five years after the effective date of the plan.

According to the final version of the plan, the population would be entitled to opt for continued integration, for independence, or for a continuation of the interim autonomy settlement that was to apply over the period of four to five years. Whereas the Council required the Personal Envoy to propose a political solution providing for self-determination, international practice clearly shows that democratic consultation concerning the status of a territory, as negotiated between the parties, is a valid means of allowing a population to achieve self-determination. Basing itself on this precedent outside the colonial context, Morocco claimed that negotiations remained the privileged means for the parties to adapt the settlement to their aims and to regional characteristics.

Hence, the proposal remained unimplemented. A more successful example of an interim settlement leading to an act of self-determination is represented by the Machakos Protocol of 20 July The negotiations were also strongly supported by the US government which, since October , had applied certain pressure upon the parties. The preamble to the agreement at first appears to point to an attempt to integrate the country after prolonged conflict between the mainly Muslim North and the mainly Christian South.

Division is to be overcome by correcting historical injustices and inequalities in development between both regions and by establishing a framework for governance through which power and wealth are equitably shared and human rights guaranteed. Article 1. However, this strongly integrative provision is immediately countered by Article 1. That the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status.

The agreement then provides for a transition process to apply during an interim period lasting for six years.

The self-determination trap: Ethnopolitics: Vol 4, No 1

At the end of that period:. There then follows an agreed text on the right of self-determination for the people of South Sudan. This provides for a mid-term review of the implementation of the peace agreement by the parties and international representatives with a view to improving the institutions and arrangements created under the agreement, and again to making the unity of Sudan attractive to the people of South Sudan.

In terms of state structure, the protocol provides that the national constitution of the Sudan shall be the supreme law throughout the Sudan. The constitution is taken to be the source of all public authority, suggesting a devolved interim power-sharing arrangement. However, the constitution is to be amended even before the transition period to take account of the elements to be agreed in the definitive settlement. There is also provision for the exemption of the South from legislation inspired by the Sharia. Instead, legislation of national application is to take account of the diversity in Sudan.

A whole bundle of additional settlements based on the Machakos Protocol were completed during and formally presented as a Comprehensive Peace Agreement on 9 January The two principal parties then rapidly drafted a new constitution for Sudan in The Bougainville agreement of 30 August represents another innovative case of deferred possible secession. Section C of the agreement contains detailed principles on a referendum. No earlier than 10 and no later than 15 years after the election of the first autonomous Bougainville government, a referendum shall be held, unless the Bougainville government waives this entitlement.

The referendum pledge is a conditional one, depending on the achievement of good governance and weapons disposal. A dispute settlement mechanism is to be established to address divergences relating to the referendum. A UN mission is to help stabilize the transition process. In terms of state structure, the Bougainville constitution is the supreme law within the territory in relation to all matters which fall within its jurisdiction. Bougainville may change the constitution, according to special procedures.

The national government exercises competence over defence, foreign relations, transport and communication, and some other areas. The Bougainville authorities enjoy authority over all other matters provided they have been set out in a list of powers to be developed.

Unlisted items remain initially with the national government, although there is a procedure to address claims to the exercise of authority in these areas by either entity. Listed powers will be transferred gradually to Bougainville. While a Bougainville court system is to be developed, the national Supreme Court remains the final court of appeal for Bougainville, including for constitutional matters. These cases are noteworthy inasmuch as the parties agree to self-determination, but also undertake an obligation to test the possibility of continued union during a period of federal or autonomous governance.