1 Background
Given their geographical location in the northern part of the Baltic Sea, the à land Islands have lain at the crossroads of the regionâs major trading routes ever since the Iron Age. à land was a part of the Swedish Kingdom up until 1809, when the Russian Tsar claimed Finland and the à land Islands in a peace treaty that ended a long series of wars between Russia and Sweden. In the aftermath of WW1 and the Russian Revolution, Finland declared itself independent and à land strove for a reunification with Sweden. The question of sovereignty escalated and was handed to the Paris Peace Conference (ending WW1) and later to the newly established League of Nations.
During the deliberations of the League, Finland passed a constitutional act for à land that endowed the people of à land with a right to self-government in internal matters in order to meet the international view on minority rights and to ensure the à landersâ Swedish language, culture and local heritage. The proposition of 1919 emphasises that the given autonomy should be as far-reaching as possible for a region that lacks the status of a sovereign state. The movement for reunification with Sweden had started already in 1917, prior to the Finnish declaration of independence, when a common assembly for the à land municipalities was created. This assembly rejected the Autonomy Act, referring to the right of self-determination and thus the right to hold a referendum on the issue of sovereignty.
The League decided in 1921 that Finland should have territorial sovereignty over à land. The people of à land should be consoled by reinforced guarantees, as an integrated part of the already-passed Autonomy Act, for their Swedish language, culture, and local heritage. These guarantees should be negotiated by Sweden and Finland and added to the constitutional Autonomy Act, which was otherwise considered to meet the then-present standards.1 The à land authorities also received the right to complain to the Council of the League of Nations in case Finland should not honour the guarantees. The Council Secretariat should also monitor if Finland was complying with the guarantees, as it was doing in other minority solutions established after WW1. Moreover, the à land Servitude, a non-fortification treaty from 1856,2 was to be reconfirmed and strengthened to include demilitarisation and neutralisation in order to secure the future peace of the Northern Baltic Sea and thus meet Swedenâs security interests.
2 The à land Legislative Competence Today
The people of à land are governed under three jurisdictions: the à land Islands with the à land Lagting, i.e., the Parliament of à land, adopting legislation; Finland with the Finnish Parliament and other state institutions; and the European Union with the Parliament, Council, Commission and the Court. The à land Parliament enacts à land laws within its legislative competence. Secondly, laws enacted by the Finnish Parliament apply to à land within the legislative competence of the Finnish Parliament as defined in the Autonomy Act. And finally, laws enacted by the European Parliament apply to à land to the extent that the legislative powers are delegated from the à land Parliament through the accession treaty to the union.3
In the first Autonomy Act of 1921 the legislative powers of the Finnish Parliament were enumerated, including foreign policy, defence and other state prerogative matters, while all residual legal matters belonged to the à land Parliament. This division of powers followed the set-up for a federal state and partly fulfilled the original intention to award à land as far-reaching self-government as possible for a region that lacked the status of a sovereign state. In the following years of implementation, the provision stating that new legal areas belonged to Finnish competence proved to be problematic, as the Supreme Court implemented this provision in the constitutional control, applying strict interpretations that favoured the Finnish Parliament.4
Todayâs limited legislative authority is defined in two lists of enumerations, one for the autonomy and one for the state. The list for à land includes 26 legal areas, while the list for Finland includes 41. Each list concludes with a general clause stating that new legal areas shall be interpreted in accordance with the principles in the respective enumeration.
The system of enumeration of the legislative competence of each parliament was intended to be exhaustive and leave less room for disputable interpretations in the legislative control of à land laws. However, the lists of enumerations have been found to be too detailed and not especially transparent, and many areas of mixed competence have appeared. In some cases, the individual citizen doesnât know which law is applicable, in which version, and to what extent in each instant. In practice, only someone with long-term experience of how the competence lists are applied is comfortable with the current system. A more transparent and simpler system for the distribution of legislative competence would have a democratic value. Knowledge of the distribution of legislative competence and its implementation needs to be improved.
Maybe the most negative effect of AÌlandâs limited legislative competence is the large number of mixed competences. In addition to contributing to the problem of the growing number of âlegal transplantsâ (i.e., laws copied from Finnish laws), they also give rise to a legal uncertainty that affects the individual citizen as well as the party imposing the law.5
When comparing other European autonomies,6 it becomes evident that the autonomous territories that have the broadest legislative competence tend to have fewer areas of conflict with the metropolitan state and, as a result, often enjoy a relatively conflict-free and well-functioning partnership with the state.
3 Demand for a New Autonomy Act
The Autonomy Act has seen two major revisions, in 1951 and 1991, as well as a number of minor changes.
à land politicians have on several occasions underlined the urgent need for a revision of the Autonomy Act, also referred to as the à land Constitution. The à land Government appointed a revisory committee already in 2010, and a second one in 2013. The main conclusions can be summarised as the official à landâs demands for necessary changes to the Autonomy Act.
The proposals from à land have been scrutinised and negotiated in several exclusively Finnish committees, as well as in joint committees and working groups, comprising both politicians and experts. The few issues on which Helsinki and à land could agree were not considered worthwhile by the à land authorities to pursue further.
A recurring conclusion in the à land committeesâ reports is that the autonomyâs political and administrative potential is considerably more limited than its constitutional position provides scope for. The AÌland autonomy tends to deliver a lesser degree of home rule than its legal set-up implies, and, paradoxically, less flexibility and scope for action than a number of other European autonomies with a weaker constitutional position than AÌlandâs. The explanation of this paradox can be summarised in two critically important weaknesses in the AÌland autonomy model, namely:
The autonomyâs limited legislative competence
The asymmetrical partnership with the Finnish state7
Without a deeper structural reform, the autonomy risks stagnation and distancing from its original purpose. This insight was the key idea behind the suggestion to reform the present Autonomy Act, which was initiated by the AÌland Government over ten years ago. The most significant component in the reform proposal was, with reference to the Danish model of autonomy, the introduction of a new form of division of competences, in which all areas of law â except for those that can be tied to the most fundamental conditions (prerogatives) of national sovereignty â can be transferred to the autonomyâs jurisdiction without changes to the Autonomy Act.
There have been a few minor changes to the Autonomy Act since 1991 when the present Act came into force. The new Finnish Constitution from 2000 rendered a minor revision to the Autonomy Act but not to the required extent, as the Autonomy Act explicitly excludes provisions of the Finnish Constitution when needed to uphold the autonomy and the Swedish national identity of the people of à land.
The main proposals of the à land revisory committees are still valid as the demands of official à land:
The à land Autonomy is internationally embedded under the auspices of the Council of the League of Nations in 1921, when the sovereignty and certain guarantees for language, culture and local heritage were settled. These guarantees were concretized in the à land Agreement between Sweden and Finland. Moreover, the à land Servitude, a non-fortification treaty from 1856, was to be reconfirmed and strengthened to include demilitarisation and neutralisation in order to secure the future peace of the Northern Baltic Sea. The à land authorities also received the right to complain to the Council in case Finland did not honour the guarantees. These provisions were to be included in the Autonomy Act for à land, the à land Constitution. The self-government system for à land is therefore not exclusively of Finnish national interest.
The self-government shall be established as an agreement between Finland and à land. The parties are equal in all stages of the preparation of a revision of the Autonomy Act, and a new act, or a revision of the present one, shall be ratified by consistent decisions by both the Finnish and the à land parliaments.
Future relations between à land and Finland must to a higher degree be based on respectful and developing negotiations. The system needs to be adjusted in this direction, and the practical implementation needs to be directed towards the original intentions of the self-government. However, this cannot be done at the expense of legal certainty and a clear regulation of the distribution of competence.
What the committees interestingly enough conclude in their reports is the quest for a better and more equal partnership between the metropolitan state and the autonomy that would be fruitful for both parties. Todayâs legal and constitutional stronghold has proven not so fruitful for the development and adjustment of the autonomy to todayâs society. To create the legal and political scope for action required to fulfil the ambitions behind the establishment of the autonomy (language guarantee and greatest possible degree of self-determination) demands a fundamental revision of the whole AÌland autonomy arrangement. There is a need for a structural renewal of the home ruleâs conditions for development, which makes use of the experiences of similar autonomy arrangements in the Nordic region and Europe.
4 Main Demands
4.1 New Principle for Division of Competence
Here, the AÌland proposals amount to a return to the residual principle of the first Autonomy Act, where only the core areas of Finlandâs state sovereignty are listed in the Autonomy Act as non-transferable. All other legislative and legal areas can be transferred to the AÌland Parliament by means of a simplified procedure, with only the procedure and the timing being subject to negotiation.
The committees underlined that the strongest reasons for a change to the current construction of the competence lists can be found in the excessively high thresholds that must be crossed when changes in the distribution of competence are needed, as well as the limited scope for development that the current competence lists entail. Amendments to the Autonomy Act have proven to be a rather time-consuming and persistent process.
The committees proposed a system for the division of legislative powers that is more flexible and allows for successive development of the autonomy. Such a system would include a future potential for further takeovers of legislative areas that currently fall within the Finnish jurisdiction. This would presuppose that the Autonomy Act contains a list of legal areas belonging to Finlandâs jurisdiction that cannot be subject to a takeover by the à land Parliament without an amendment to the Autonomy Act. Remaining legal areas would constitute a residual legal competence that could be taken over by the à land Parliament with the support of various procedures.
Such a major change requires thorough consideration. Todayâs system is rather predictable, and the constitutional control is based on legal discretion when it comes to interpretation of the Autonomy Act. A change might pave the way for a new praxis where, e.g., a nationalistic president could use political discretion to the disadvantage of à land, regardless of the Supreme Courtâs opinion. The à land position nonetheless considers that the present difficulties relating to an amendment of the Autonomy Act, i.e., the lack of legislative competence to hinder the on-going (unintentional) state integration,8 constitutes a greater threat to the Swedish language, culture and local heritage, as well as to the future existence of a real form of self-government.
The proposal from the committees didnât take a position on which areas should be reserved for the metropolitan state, but states that it is natural that areas that are particularly associated with national sovereignty remain with Finland. These include the legal areas enumerated in the introduction to section 27 of the current Autonomy Act: foreign affairs, defence, human freedoms and rights.
A corresponding system has, in principle, been implemented in Denmark. Through a Danish law that entered into force in 2005, the Faroe Islands have received additional powers for taking over legislative competence.9 According to this law, only a few areas are excluded from a future takeover by the Faroese authorities without the need for further amendments.10
A system based on the idea that the à land authorities are given the main responsibility for future transfers of legislative competence would mean that the national legislation in force at the time must apply until the transfer comes into force within a specific area. In a sense, it is a question of a power of attorney for the à land Parliament to transfer legislative competence at a later stage. The transfer would come into force when à landâs Parliament passes legislation covering this area. This would create a smooth transferral of specific areas when needed to match the development of society. Such a system presupposes an equal and respectful partnership between the autonomy and the state.
If the proposed reform was to be implemented with consideration to the most important of AÌlandâs proposals, many of the problems that have been identified in the cooperation between Mariehamn and Helsinki would, if not totally disappear, be significantly reduced.
4.2 Clearer Relationship between the Autonomy Act and the Finnish Constitution
The relationship between the Finnish Constitution and the Autonomy Act is in some respects problematic. Questions regarding the relationship between the two constitutional acts have arisen in various application situations. The provincial government has found it problematic that the Finnish Parliament, through amendments to the Finnish Constitution, can infringe on the à land Parliamentâs legislative competence without its approval. The present Autonomy Act requires that certain constitutional amendments come into force in à land only after the legislatureâs approval has been given. This mainly applies with regard to principles relating to the right of individuals to own real estate or assets belonging to business activities in à land, provisions derived from the original nationality guarantees.
The à land position is that a provision should be included in the Autonomy Act according to which legislative powers cannot be limited by establishing, amending or repealing the Finnish Constitution, or by deviating from the Constitution unless the à land Parliament has consented to the measure in a qualified manner.
This recommendation is also strongly supported by a comprehensive study of all Supreme Court opinions of à land Laws, 1923â2018.11 The results show various interpretation problems with, and limitations to, the autonomyâs competence resulting from the introduction of the new Finnish Constitution.
4.3 Increased International Competence
Due to a growing European integration and a general internationalisation of politics, international standardisation is increasing in scope. Because of the proposals for extended jurisdiction for the à land Parliament in the exercising of public power, expanded treaty-legal capacity for à land is also assumed.
Increased competence in treaty jurisdiction is also seen by the AÌland committees as necessary to the long-term maintenance of AÌlandâs international guarantees of nationality. AÌland should be given the ability to influence the preparation of international agreements so that an unwelcome erosion of the Autonomy Act can be prevented.12
The problems relating to the autonomyâs weak position in the implementation of EU legislation are also criticised by the two committees. Despite regulations in the current Autonomy Act, there is little opportunity for the à land Parliament to influence the preparation of EU legislation within its own areas of competence. The responsibility for à land to implement EU directives correctly has in many cases led to rejection in the constitutional control, as the Supreme Court has regarded the à land Parliamentâs way of implementing a directive as âevidentlyâ in violation of the EU directive. This practice has been questioned as it is up to the European Court of Justice to consider if there is a breach of EU legislation or not. The leakage of democracy needs to be rectified, according to the AÌland proposals. Another question that needs addressing is the guaranteeing of a seat in the EU Parliament for à land, a current issue as the present proposal regarding seats in the EU Parliament is offering Finland an extra seat.
It should also be noted that a change to the Autonomy Act that provides AÌland with some form of limited treaty jurisdiction could advantageously be used in relations with Sweden concerning education, culture, and trade. Such relations are necessary to uphold the language guarantee, which is a Finnish commitment.
The à land proposal also addresses the international guarantees. As the UN replaced the League of Nations, can the à land authorities now complain to the UN? If that is possible, to which UN body should the complaint be made, beyond the human rights complaintsâ procedures: To the General Assembly, the Security Council, the ECOSOC, the Peacebuilding Commission or somewhere else? The proposal demands the right of appeal to an international body to be restored in accordance with the League of Nationsâ decision. The à land Parliament would have the right to appeal if Finland in any way failed to comply with the guarantees. The à land demand also includes that the Finnish Parliament should require the government to negotiate a sustainable monitoring system of the nationality guarantees.13
4.4 Taxation Competence and Economic Scope for Action
Both of the AÌland committees found that the original intention of the taxation forms that were included in the AÌland competence was to cover the costs of home rule. They deem it necessary, therefore, that AÌlandâs current taxation competence be developed so that the original intention can be fulfilled.
Taxation competence is in practice closely associated with civil, labour and company law. These legal areas, together with increased taxation competence, provide the necessary prerequisites for a development of the autonomy according to the original ambition of âbroadest possible home ruleâ. It would also increase the possibility to guarantee that Swedish remains as the dominant language within the business sector.
The à land tax jurisdiction has to some extent a foundation in international law in the à land Agreement from 1921. According to the agreement, the à land Islands shall have the right to 50 percent of the revenues of a then-existing land tax. When abolished in 1929, there was no substituting tax revenue awarded to the à land Parliament.
The original tax forms existing when the autonomy was created were abolished, or their significance was reduced without being replaced in the Autonomy Act, and thus fell outside the competence of the à land Parliament. This meant that large parts of the tax base that could provide income for the à land administration were no longer of relevance to the à land economy. Instead, a backup system came into place. Today, the funding of the autonomy is calculated as 0.47 percent14 of the state budget, supplemented by the possibility of extra grants under exceptional circumstances or to facilitate greater infrastructural investments.
The committees state that the original intention was that the tax forms that fell within the jurisdiction of the à land Parliament would be sufficient to cover the costs of self-government. The à land position is that the taxation competence should be developed to restore the original intention.
Technically, the committees believe that the area of taxes and fees should be included among the areas where legislative competence can be transferred to the region by the à land Parliament. The procedures for transfer should consider the need for coordination with the national authorities and the extent of the consequences that the transfers entail.
However, the paramount economic issue of funding the self-government has been temporarily solved. The system based on a return of the tax income, calculated as a percentage of the state budget, prevails. The percentage was increased slightly as the population of à land has grown since the system was established 30 years ago. The Finnish Ministry of Finance identified an urgent need to change the technical calculation of the sum received by à land due to the budgetary solution of the comprehensive health reform in Finland, which would have seen à land receive 40 million euros more than anticipated. This was instrumental in reaching an agreement.
4.5 Improved Language and Nationality Guarantees
The committees found that Finlandâs inability to satisfy the demands for Swedish language service is in itself a sufficient motive for increased legislative competence for à land. The linguistic service is at the core of the international agreement concerning sovereignty over AÌland and is supposed to function in all situations.
A recent study15 has shown that the tendencies to territorial integration, which to varying degrees characterise all modern unitary state formations, will eventually erode not only the AÌland nationality guarantees but also the autonomyâs own scope for action. In the long run, this process can be most effectively counteracted through increased AÌland competence within the legal and political areas that are central to societal development.
With reference to the results of this study, it is also recommended that the Autonomy Act is clarified regarding the protection of language so that laws, regulations, administrative authority decisions and legally binding, labour market and wage agreements only apply in AÌland if they are in Swedish.
4.6 Equal Legislative Control
The committees suggest a more symmetrical legislative control, where the Finnish president can request an opinion from the AÌland Delegation16 concerning the compatibility of a Finnish Parliament law with the Autonomy Act.
This proposal emanates from the criticism of the legislative controlâs asymmetry; the Supreme Court should be tasked with checking if Finnish legislation exceeds its competence, as it already does with regard to AÌland legislation. The situation has been shown to be problematic after the new Finnish Constitution came into force in 2000, and the presidentâs power not to promulgate a law passed in the parliament was strongly limited. According to the new constitution, it is the Constitutional Committee in the Finnish Parliament that will decide if a proposed law is unconstitutional in any way, and, if so, suggest corrections before it is passed. The legal consideration in the committee, which is politically elected, will then be a legal source by which the judiciary system, including the Supreme Court, shall interpret the law. When a corresponding à land law then comes to the Supreme Court for constitutional control, it is probable that the same legal source be applied, instead of stating that the à land Autonomy is a sui generis ruling and that the purpose of home rule constitutes the primary source of law in the legislative control. This should be written into the Autonomy Act as an interpretive directive for the Supreme Court and the judiciary system in general. In this way, the Autonomy Act defining home rule would be interpreted independently, based on its own conditions and purpose, and not using the definitions and scope of corresponding Finnish material law.
4.7 Increased Role for the AÌland Delegation
The bilaterally appointed AÌland Delegation should be given a more comprehensive role, both in legislative issues and, more specifically, in the administrative conflicts that often arise due to mixed competences, thereby promoting trust between the partners in the relationship AÌland-Finland.
In AÌlandâs proposal concerning a simplified procedure for the transfer of legal areas to the autonomy (the residual principle), the AÌland Delegation could give their opinion on the need for coordination between Finnish and AÌland parliamentary laws, and could also suggest concrete amendments in both legislations. But also in other contexts, the presence of a balanced discriminatory body could prevent conflicts and establish long-term trust. Amongst the other European autonomies, South Tyrol is a good example, with its well- functioning, bilaterally appointed, legislative commission.17
5 Summary
The main demands from the à land Government, as expressed by the preparatory documents, can be summarised as follows:
à land society has thrived and kept its viability over a period of 100 years during some very challenging political, economic and social developments. The last decades have, though, shown a regression in the autonomyâs room for manoeuvre. Looking ahead, in order to secure a sound societal development for the people of à land in accordance with the original purpose of the autonomy, i.e., in a Swedish cultural and linguistic environment, the Autonomy Act urgently needs to be revised.
The time is ripe to move to the next generation of autonomy that can meet the requirements of a developing society faced with issues of internationalisation and integration.
The original right of the à land Parliament to appeal to an international body if the guarantees are not followed should be reinforced.
The legislative and administrative competence, especially within the economic sphere, should grow as the need for reform occurs. The transferral of competence should be executed through à land legislation.
The Autonomy Act needs to very clearly state the right to enact language clauses/provisions in à land laws in accordance with the very foundation of the autonomy, thus avoiding interpretation conflicts with the Finnish Constitution.
The strict legalistic view of the implementation of the autonomy needs to be changed to an equal partnership where distrust is replaced by trust and mutual respect, legal battle by negotiation, and control by political dialogue.
However, most of these reform proposals have been rejected by the Finnish state in the on-going political process. The path to a more fundamental renewal of the autonomy is therefore, at least in the short-term perspective, closed.
Here the League could compare the governance of the Free City of Danzig and Memel Territory. J. Barros, The Aland Islands Question: Its settlement by the League of Nations (Yale University Press, New Haven and London, 1968), pp. 170 and 190.
The Convention of 1856 Between Great Britain, France and Russia on the Demilitarisation and Non-fortification of the Aland Islands.
The Accession Treaty to the European Community 1994 of Finland, Sweden and Austria, Protocol 2.
Ida Jansson, 2020:1 Att sätta självstyrelsens gränser, Av laggranskarna underkänd Ã¥ländsk lagstiftning 1922â2018 (Olof M Janssons stiftelse, Mariehamn 2020).
The Alec Aalto group, established by the Finnish Government to comment on the proposals, also believes that the possibility of abandoning the current form-legislation technique and creating a new legislation technique that is more transparent and correct in view of the citizensâ legal protection should be investigated. à lands självstyrelse i utveckling. à landskommitténs 2013 delbetänkande. (Aalto-kommittén), Justitieministeriet 6/2015.
Bjarne Lindström, De legala och politiska förutsättningarna för Europas autonomier (Olof M Janssons stiftelse, Mariehamn 2/2020).
Bjarne Lindström, âState Integration vs. Minority Protection through Regional Self- Determination: The à land Caseâ, 30:1 International Journal on Minority and Group Rights (2023) pp. 1â22.
Bjarne Lindström and Göran Lindholm, 2021:4 The Future Conditions for the à land Autonomy. A study of the legal and political development of à landâs self-determination (Olof M. Janssons stiftelse, Mariehamn, 2021).
Lindström, supra note 7, p. 41.
Ibid, p. 42.
Ida Jansson, supra note 5.
According to 58 § Autonomy Act, the à land Government shall be informed about international negotiations which concern the à land jurisdiction. This provision is very scarcely used.
This demand has been reoccurring at every revision of the Autonomy Act. In the first revision of 1951, it was suggested by the Finnish Government but diplomatically rejected by the Soviet Union as infringing on the peace treaty that ended WW2.
Almost corresponding to the population ratio.
Lindström & Lindholm, supra note 9.
The à land Delegation is a mediating organ between the autonomy and the state, with members appointed by each party, which i.a. is giving legal opinions on laws passed by the Lagting.
Markku Suksi, âLagstiftningskontroll och rättsskipning i autonomier â jämförande perspektiv pÃ¥ självstyrande omrÃ¥denâ in 2015:1 JFT/Tidsskrift utgiven Juridiska Föreningen i Finland (2015); Lindström, supra note 7.