Non-Territorial Autonomy
We define non-territorial autonomy (NTA) as
self-rule of a group of persons, through a sub-state entity with a
non-territorial character, in matters considered vital for the
maintenance and reproduction of their culturally distinctive features. These distinctive features may refer to the language, culture, religions or customs of
the concerned groups. Just like in the case of TA, the constitutive
elements of NTA can be derived from responses to the same three
questions.
HOW
is self-government exercised? NTA is inherently an
asymmetric arrangement. NTA involves the creation of structures (legal
entities) or institutions providing services for the minorities which
are inexistent in the case of the titular majority, since mainstream
national institutions are performing, in their case, the respective
tasks. However, as opposed to territorial arrangements, which are
self-governing entities within the state with strong singular
characteristics, non-territorial autonomies following the same pattern
are often granted to all recognized minorities of the state, and usually
there are no asymmetries between the competences they wield. As far as
the agent of the self-rule is concerned, NTA may be defined according
to the personality principle (Renner, 1899/2005) or according to a functional logic
(Heintze 1998, Tkacik 2008). If the personality principle is the
driving logic of the arrangement, the agent of self-rule can be a legal
entity registered under public or private law. However, in order to
qualify as NTA, the right to self-rule must reach beyond the freedom of
association (Eide et al. 1998, Benedikter 2010). If the functional logic
prevails, a network of minority serving institutions (schools, cultural
or media institutions, public administration bodies, courts, hospitals,
etc) are the agents of self-rule – rather self-management, in this case
– which carry out a part of the state competences for the benefit of
the particular target group. NTA arrangements are regularly implemented
either if territorial solutions are not feasible or deemed too costly
to assume, or as complementary arrangements for a territorial solution.
WHY
self-government? While TA may be granted to a territory also for other
reasons than cultural diversity (e.g. geographic distance, historical
circumstances), NTA is always institutionalized in order to manage some
aspect of cultural diversity. Here, too, the desired outcome is the
self-reproduction of the recognized group. It is not a mere coincidence
that NTA arrangements are often referred to as cultural autonomy,
because in most cases the competences transferred to the autonomous
entity are in the domain of culture and education. Self-reproduction is
particularly salient, for instance, with regard to language, which is
often one of the core concerns of NTA arrangements, because the chances
for long term survival of a language which is not dominant in certain
territory are doomed to failure without proper institutional
underpinning. The competences delegated by the state and exercised by
the agent of the self-rule are seen as institutional guarantee of the
desired outcome.
WHO exercises self-government? NTA
is usually granted to communities living dispersed who share the
territory with a dominant majority. Although NTA may be politically less
costly than TA, it also faces some challenges regarding its practical
implementation. The key issue of NTA is membership. The challenge is to
reconcile the "ownership" and legitimacy of the autonomy (which require
guarantees that only the members of the targeted group take part in the
decision-making process) with the principle of freedom of identity. If
the NTA is based on the personality principle, special lists may be
necessary in order to determine who is entitled to vote for the elected
bodies of the autonomy, which may involve the registration of every
person within an ethnic group. In the case of functional autonomy, the
target group is regularly easily singled out by the nature – in most
cases: the language – of the delivered service. Self-rule, however,
reflected in the ways in which governing bodies of the respective
institutions are elected is more difficult to be articulated. In
general, it is difficult to think of non-territorial arrangements
capable to guarantee the the maintenance and reproduction of a group's
culturally distinctive features if the jurisdiction of the arrangement
is not clear and the legitimacy of the internal decision-making
processes is not warranted.
