The Concept of Non-Territorial Autonomy: Origins, Developments, and Subtypes

Abstract

The aim of the chapter is to propose a possible framing of the NTA concept, considering the historical legacies by which the usage of the term is loaded, on the one hand, and the complex empirical realities the notion is expected to map, on the other hand. First, the idea of non-territoriality will be explored briefly, with highlight on the circumstances that bring about arrangements generally referred to when the NTA concept as an umbrella term is used. Then the origin and the semantic content of several subjacent terms—national autonomy, national cultural autonomy, cultural autonomy, personal autonomy, functional autonomy, administrative autonomy, consociationalism—will be discussed, together with the problems triggered by the concurrent attempts to provide precise definitions to the various institutional embodiments of the general NTA idea. The chapter will conclude with a brief assessment of the consequences for the NTA scholarship which follow from the two main limitations of the NTA notion: the underdetermination of the widely used concepts and the gap between theory and empirical realities.

The aim of the chapter is to propose a possible framing of the NTA concept, considering the historical legacies by which the usage of the term is loaded, on the one hand, and the complex empirical realities the notion is expected to map, on the other hand. First, the idea of non-territoriality will be explored briefly, with highlight on the circumstances that bring about arrangements generally referred to when the NTA concept as an umbrella term is used. Then the origin and the semantic content of several subjacent terms—national autonomy, national cultural autonomy, cultural autonomy, personal autonomy, functional autonomy, administrative autonomy, consociationalism—will be discussed, together with the problems triggered by the concurrent attempts to provide precise definitions to the various institutional embodiments of the general NTA idea. The chapter will conclude with a brief assessment of the consequences for the NTA scholarship which follow from the two main limitations of the NTA notion: the underdetermination of the widely used concepts and the gap between theory and empirical realities.

1.1 The NTA Concept

Instances of NTA are part of the broader category of autonomy arrangements and, as such, illustrate the logic of power-sharing. ‘Autonomy’ is “a relative term that describes the extent or degree of independence of a particular entity” within a sovereign state (Hannum & Lillich, 1980, p. 885). Concerning its scope, it is “a means for diffusion of powers in order to preserve the unity of a state while respecting the diversity of its population” (Lapidoth, 1997, p. 3). As far as its main institutional ingredients are concerned, it implies “the legally entrenched power of communities to exercise public policy functions of a legislative, executive and/or judicial type independently of other sources of authority in the state, but subject to the overall legal order of the state” (Wolf, 2022).

According to Lapidoth, autonomy differs from decentralization in at least four regards: (a) while decentralization involves delegation of powers, autonomy requires transfer of powers; (b) in the case of autonomy, the transferred functions are exercised by locally elected representatives, in the case of decentralization, locally elected persons participate in deconcentrated central authorities; (c) delegation of powers can be terminated unilaterally by the central power, the abrogation or amendment of an autonomy agreement requires the consent of the central authority and the autonomous entity; (d) in decentralized regimes the central authority keeps control and supervision, together with the right to revise the acts of decentralized entities, while interference with the act of autonomous entities is justified only in extreme cases, like exceeding statutory powers or endangering the security of the state (Lapidoth, 2001).

The power, which is divided and shared, belongs to the state, the beneficiary of the arrangement is a sub-state actor. From the perspective of the sub-state entity, autonomy equals with significant degree of self-government, which implies “elections to the highest decision-making body and the existence of an executive for the implementation of the decisions of the central body of self-government, but also other features, such as the mechanism of accountability of the executive body, the relationship of the self-governing entity to the central government of the country” (Suksi, 2011, p. 6).

Thus, the two main actors of any autonomy arrangement are the state, on the one hand, and the autonomous entity, on the other hand. The distribution of state power can be done on territorial or non-territorial basis, which means that the sub-state actor endowed with certain functions otherwise exercised by the state can be a part of the country’s territory, a geographical unit equipped with a special status (TA), or an institution resulting from laborious procedures initiated by members of a certain category of the state’s population, regardless of their residence (NTA). According to Légaré and Suksi, state jurisdictions can be both, territorial and non-territorial: “A nonterritorial jurisdiction exists when independent public authority is exercised in respect of certain individuals throughout the state irrespective of the fact that those individuals are residing in territorial jurisdictions in which other individuals are subject to similar public authority from territorially delineated jurisdictions” (Légaré & Suksi, 2008, p. 144).

Categories within the populations of states interested in NTA arrangements are regularly non-dominant groups with strong identity markers, manifesting desire to keep and reproduce their language, religion, and culture, embedded in community traditions and informal institutions, despite the fact that the group has a discontinuous settlement pattern within the state’s territory. The mobilization on behalf of the non-dominant group’s members targeting NTA is a form of struggle for internal self-determination, aiming to gain control over state functions and resources which may be critical for the chances of linguistic, religious, and cultural reproduction.

The chances of success of an NTA movement depend on multiple factors, both as far as the state, and the non-dominant community are concerned, preceding events and contextual elements being critical, as well. Successful NTA movements result in a vast variety of arrangements, reflecting power relations, ethnodemographic realities, the potential for agency of the non-dominant group, institutional traditions, and preferences, etc. There are, however, autonomy movements targeting some form of NTA which have not proven—so far, at least—successful, yet expose clear potential of the claimants for such arrangements. And there are many forms of effective and resilient non-state law, traditional authorities, and practices of informal adjudication which display plenty of similarities with formal NTA arrangements, without being linked to any known autonomy movement. Nimni observes in this regard that “Non-Territorial Autonomy has many different forms such as Consociationalism and National Cultural Autonomy, but also forms of representation that de-territorializes self-determination, as with indigenous communities, the juridical autonomy of religious communities, or in the practice of many forms of secular community representation” (Nimni, 2020, p. 13).

The NTA concept faces the challenge to grasp, frame and describe this complex empirical reality. It is not surprising that there is no consensus in the literature regarding the content and reach of the notion, several subjacent terms being used—sometimes interchangeably, sometimes with reference to overlapping realities—to denote partial materializations of an imagined ideal type, or to designate differences in the institutional embodiment of the original idea. The most frequently used terms will be listed below, together with brief summaries regarding the dominant views that define the associated contents.

1.1.1 NTA as an Umbrella Term

The term ‘NTA’ is an umbrella concept encompassing all possible forms of autonomy short of the territorial version: national autonomy, national cultural autonomy (NCA), cultural autonomy, personal autonomy, functional autonomy, administrative autonomy, and, sometimes, consociational arrangements, too. Though the distinction between ‘territorial’ and ‘non-territorial’ aspects of autonomy is not always easy or self-evident, the idea of non-territoriality is regularly associated with the personal/personality principle.

The origin of the term can be found in Roman Law in the context of which the principle of personality meant that the law of the State is jus civile in the sense that it applies only to citizens, like in other ancient legal systems. The jus civile has been developed in the Roman Republic, being based on both custom and formally adopted legislation. The need to deal with peregrini (foreigners) has led later to the development of jus gentium (law of nations), resulted not from legislation but from the flexible application, by magistrates and governors, of the jus civile to foreigners (see Box 1.1).

Box 1.1 Renner on the origins of the personality principle “(…) The Roman Empire was replaced by Germanic and Arabian tribal states, which were based on tribal affiliation. Here the phenomenon first emerged of the defeated tribes retaining their legal system and their language, of two peoples distinct in terms of law inhabiting a unitary territory. (…) the Roman provincial retained his national law, even if he lived among Bavarians and Frisians, and the Frank, Alemannic or Chamaver retained his even if living among Romans. Before dealing with a dispute, the judge would ask him: ‘Quo jure vivis?’ Which law do you live by? The party thereupon made a declaration of nationality. The judge then knew according to which body of law he was to judge that party. Here, the so-called personality principle prevailed. (…) The Carolingian Empire initially united many tribes without abolishing, suppressing or confining to a particular territory their national law, language and specificity. (…) Under its rule in the Carolingian Empire, ten nations coexisted not only with different national languages but also with different legal codes.” (Source Renner, 2005, p. 23)

In Europe, the Middle Ages, especially in the second half, were characterized by legal pluralism, in the sense that different types of law and various courts have coexisted within the same territory, singling out categories of persons to whom those rules and institutions applied. In such circumstances, the law was personalized, i.e. each individual was judged based of the law (and court) of the category he/she belonged to. This way of dealing with law and adjudication was gradually abandoned until 1648, when the territorial principle was adopted, in the Westphalia Peace Treaty, as the basis of centralized state jurisdiction. The Westphalian state system—which gradually expanded to the whole world—consists of sovereign states that mutually recognize one another, accept the principle of non-interference in domestic matters, and are organized according to Bodin’s theory of sovereignty which establishes a mutually exclusive relationship among the territory, the Sovereign, and the subjects inhabiting the territory (Bodin, nd [1576]).

The personality principle stipulates that identity communities can be organized into autonomous units without considering residence, by uniting the members, based on free choice, in associations empowered to administer independently issues pertaining to identity maintenance. Beyond the irrelevance of the members’ residence, the non-territorial character becomes evident in the fact that several autonomous units created according to the personality principle may amalgamate in territorial terms within the same administrative unit, like religious denominations often do. Renner suggested that in multinational states “the personality rather than the territorial principle should form the basis of regulation; the nations should be constituted not as territorial entities but as personal associations, not as states but as peoples, not according to age-old constitutional laws, but according to living national laws” (Renner, 2005 [1899], p. 24).

Under the umbrella of the NTA concept, the subjacent terms refer to versions displaying various characteristics: ‘national autonomy’ is the ideal type of NTA envisioned by Renner (and Bauer) at the turn of the nineteenth and twentieth centuries with the aim of preventing the collapse of Austro-Hungarian Monarchy, the model remaining unimplemented to date; ‘national cultural autonomy (NCA)’ refers to partial implementations of the ideal type between the two World Wars in the Baltics and in various parts of the Soviet Union, as well as in Central-East European states in the post-Cold War context; ‘cultural’, ‘personal’, ‘functional’, and ‘administrative’ autonomy, together with consociationalism and the ‘institutional completeness’ concept, are terms dominating contemporary NTA theory as the result of attempts to grasp—and give sense to—the differences in legal-institutional embodiments of the NCA model adapted to particular contexts.

1.1.2 National Autonomy

The idea of ‘national autonomy’ is heavily embedded in a particular historical context: the ambitious project of a thorough state-building reform in the late Austro-Hungarian Monarchy meant to effectively accommodate the nations of the Empire more and more interested in political emancipation. The core aim of the envisaged constitutional reform was to free the nation from the territory, by separating state functions into culturally irrelevant, on the one hand, and critical for the cultural reproduction of the national communities, on the other hand. The latter would have been handed over to legal entities formed by national communities according to the personality principle. The former were supposed to be administered in common by representatives of the autonomous units within institutions relieved of the burden of mediating national conflicts, thus capable to concentrate on security, welfare, health care, and other issues pertaining to the powers traditionally associated with sovereignty.

The autonomous national units would elect national councils in charge with administering cultural and educational affairs, including levying taxes in order to contribute to generating the resources necessary for the provided cultural care. In a final setting, the reformed Austrian state would consist of (a) homogeneous territorial units dominated by one nation, (b) mixed territorial components in which two or more national autonomies were supposed to coexist by administering independently state functions pertaining to culture and cooperating in the domains of culturally neutral state affairs, and (c) constitutive nations which would embrace into corporate public bodies the members of each nation, both the ones who live in homogeneous and mixed territories, in accordance with the personality principle. Both Renner and Bauer had hoped that such an arrangement could put an end to what they called ‘the fight of the nations for the power in the state’.¹

Though the model of ‘national autonomy’ advocated for by Renner and Bauer was never implemented as such, it remained in the literature as an ideal type which proved to be inspiring for national movements of important minority communities in pre-Soviet Russia, especially Jews (Gechtman, 2016) and Germans (Alenius, 2007; Housden, 2004). Subsequently, further attempts of implementing the model were made in the Soviet Union and the new independent states in Central and East Europe (Kuzmany, 2020). The term ‘national-cultural autonomy’ emerged in this context, as normative and programmatic target for projects of internal self-determination of minority communities.

Box 1.2 Bauer on the organizational details of ‘national autonomy’ Building on Renner’s work published under a pseudonym (Springer, 1902), Bauer summarizes some of the critical details of ‘national autonomy’ as follows: “The realization of the personality principle would require the division of the population according to nationality. (…) it would be the mature citizen who was accorded the right to determine to which nationality he wished to belong. On the basis of this free declaration of nationality by the mature citizen, national registers would be established containing a list of the mature citizens of each nationality that was as accurate as possible. (…) Establishing the national register would provide the basis of national autonomy. We would only need to constitute the members of a nation within the parish, within the district or canton, within the crown land, and ultimately within the empire as a whole as a public body with the task of attending to the cultural needs of the nation, of establishing schools, libraries, theaters, museums, and institutions of popular education and of providing the nation’s members with legal assistance when dealing with the authorities, insofar as they require this due to a lack of command of the language employed by state departments and courts. In return, this body would be granted the right to procure the means required for these purposes through the taxation of the nation’s members. National autonomy would thus be founded purely on the personality principle. Each nation would have the power to attend to national cultural development using its own means; thus, no nation would have to engage in the struggle for power within the state. (…) The cantons would now enter into a dual relation with one another. First, the cantons would form territorial associations charged with dealing with certain affairs of a nationally neutral character. For example, all the cantons in Bohemia would constitute the province [Land] of Bohemia, regardless of the nationality of their inhabitants, and would jointly deal with certain territorial affairs. On the other hand, all cantons inhabited by a particular nation as well as the national self-administrative bodies representing this nation within the dual cantons would constitute that nation as a legal entity. All Germans in the nationally uniform cantons and all those Germans within the dual cantons who are entered in the national register would constitute the German nation and elect the national council. This national council would independently administer the national affairs of the Germans, establish universities, museums, and so on, and have the right to levy taxes on the Germans in the nationally uniform cantons and in the dual cantons. In the nationally uniform cantons the national council would have the right to establish such national institutions without being subject to the influence of any other nation; in the dual cantons, on the other hand, this would be permitted only with the approval of the national council of the other nation.” Source Bauer (2000 [1907], pp. 281, 283, 286–287)

1.1.3 National Cultural Autonomy

‘National-cultural autonomy’ is a widely used, yet controversial term. Though in the NTA literature it is commonly attributed to Renner and Bauer, the two prominent Austro-Marxists were advocating for something fundamentally different: ‘national autonomy’ which required, as their theory stipulates, a social contract between the state and nations, resulting in a federation of national corporations, each embodying state power. In Renner’s view, ‘national cultural autonomy’ is what the Jewish tradition of self-organization in Eastern Europe achieved, i.e. cooperative national associations preoccupied with their own administration, without interest in state power (for details, see Box 1.3). While ‘national autonomy’ envisages symmetrical arrangements among nations, ‘national-cultural autonomy’ is a term used in contexts referring to situations in which the challenge is to manage the relationships between dominant majorities and non-dominant minorities with the means of essentially asymmetrical arrangements.

Box 1.3 The Council of Four Lands The central body of Jewish autonomy in Poland for nearly two centuries—from the middle of the sixteenth to that of the eighteenth. The great number of the Jewish population of Poland, its importance in the industrial life of the country, and the peculiarities of the political and class organization of the Polish commonwealth (‘Rzeez Pospolita’) were the reasons why the Jews of Poland formed a separate class enjoying liberal autonomy within the sphere of their communal and spiritual interests, the outcome of which was their exemplary communal organization. A Jewish community, with its administrative, judicial, religious, and charitable institutions, constituted a unit of self-government. The term ‘ḳahal’ denoted both the community and the autonomous communal administration, the two concepts being identical. The administrative functions—the assessment of state and communal taxes, the supervision of charitable institutions, etc.—of the ḳahal were performed by elective ḳahal elders (‘seniores’); while the rabbis (‘doctores Judæorum’) had charge of religious and judicial affairs. (Source Jewish Encyclopedia, entry by H. Rosenthal and S. M. Dubnow. https://www.jewishencyclopedia.com/articles/4705-council-of-four-lands) Councils of The Lands were the central institutions of Jewish self-government in Poland and Lithuania from the middle of the sixteenth century until 1764. The bodies in question were the Council of the Four Lands or council of the lands, the controlling body for the Jewish provinces (“Lands”) of Poland, while the Council of the Land of Lithuania was the similar organization for the Lithuanian grand duchy, which was associated with the Polish crown. The two bodies were similar in structure and function. They were not constituted in either case as perpetual organizations, but were theoretically to the end ad hoc assemblies representing the permanent administrative entities, the local communities associated in their respective provinces or “Lands.” The councils represent the highest form of Jewish autonomy within a regional or national framework attained by European Jewry, both in terms of territorial extent or of duration. (Source https://www.jewishvirtuallibrary.org/councils-of-the-lands)

NCA could be perceived, thus, as the Renner–Bauer model adopted to the circumstances of non-dominant minority communities, situations in which it is beyond doubt ‘who owns the state’, and the interest of the minority is not more than gaining control over certain state functions and resources in order to preserve group identity within the frameworks of a state dominated by the majority culture. In the academic literature, the NCA concept is used preponderantly in historical, theoretical, and normative-programmatic contexts, without much reference to procedural and institutional details of the targeted arrangements. In situations when the usage of the term has an empirical relevance, the instance it refers to can be any of the remaining types of non-territorial autonomy: cultural, personal, functional, or administrative (for more details, see Chapter 2).

1.1.4 Subjacent Terms with Empirical Relevance

While NTA is an umbrella term, ‘national autonomy’ is the ideal type never implemented in practice, and ‘national cultural autonomy’ is the amended version of the ideal type adapted to the circumstance of non-dominant communities, the rest of the concepts utilized to denote further aspects of the broad NTA phenomenon depict various legal-institutional embodiments of the core idea: creating and/or empowering institutions meant to foster identity maintenance and reproduction of non-dominant cultural communities. Consensus is not characteristic in this part of the literature either, yet the differences among the various authors’ opinions refer to more objective—legal and institutional—details.

1.1.4.1 Cultural Autonomy

‘Cultural autonomy’ is the most precisely circumscribed type of NTA, defined in similar or at least compatible forms by the influential authors. The term was officially used for the first time in the Estonian Cultural Autonomy Law adopted in 1925, incorporating most of the elements of the Renner–Bauer model: minority lists into which citizens could freely register, elections organized for electing the cultural council which, as a public law body, could issue by-laws within the limits of cultural and educational competences, impose taxes upon the members included in the lists, elect the members of the cultural self-government, the executive branch of the autonomy, and supervise its activities. The competences were limited to the organization, administration, and supervision of public and private schools in mother tongue, together with other cultural institutions like theatres, libraries, museums. Funding for the activities of the cultural self-government was meant to be provided by state subsidies, local government support, and taxes collected from the members (Smith, 2005).

The opinion of several contemporary authors (de Villiers, 2012; Eide, 1998; Hofmann, 2008; Malloy, 2015; Suksi, 2015; Yupsanis, 2019, etc.) converge regarding the way cultural autonomy should be defined. The arrangements belonging to the category should result, according to the dominant view, from functional layering, through separate institutions, of public authority for the benefit of minorities scattered throughout the state. The public law powers and functions have to be transferred to representative bodies, the so-called cultural councils, invested, in principle, with legislative and executive power. Suksi observes, however, that “entities of cultural autonomy would deviate from the understanding of Bauer and Renner in that they would not be entitled to exercise legislative powers, nor would their membership be exempted from the application of general national legislation” (Suksi, 2015, p. 112). Indeed, in real-life cases, the role of the cultural councils is regulative, rather than legislative.

The legal status and enforceability of the law made by cultural councils are, in principle, the same as the enforceability of a law made by a regional or local government. Through the delegated administrative functions, the cultural councils should be entitled to take binding decisions on educational and cultural affairs, and levy taxes. The tasks of the cultural councils cannot be entrusted to member-serving organizations (NGOs) since those are not part of public authority. A concise summary of how cultural autonomy can be operationalized is provided in Box 1.4.

Box 1.4 The core features of the cultural autonomy model • The right of individuals to ethnic self-identification upon voting age (personality principle), • the establishment of a special minority register in which the self-proclaimed members voluntarily enter their names and which are then used as a basis for electing the cultural councils, • the election and establishment of minority cultural councils and cultural self-governments, • the organization and recognition of the aforementioned institutions as non territorial public law corporations endowed with collective rights and segmental sovereignty over the minority cultural affairs, • the entitlement of the cultural autonomy bodies with legislative powers in their field of their responsibility as well as with tax-raising capabilities over their members for the backing of the cultural institutions and services, and • the provision for state funding for the sustainability of the cultural autonomy regimes Source (Yupsanis, 2019, p. 88)

Examples of cultural autonomy implemented with relative success within a certain timeframe are Estonia, between 1925 and 1940 (Aun, 1953), Cyprus, from 1960 to 1963 (Stratilatis, 2021), and Serbia, beginning with 2002 (Beretka, 2021). Occasionally, forms of religious autonomy are considered as instances of cultural autonomy, like in the case of Muslims and Christians in Israel, or Muslims in India, which are considered by Cornell (2002) approaches that “produce the best overlap with the conceptualization of Bauer and Renner” (quoted in Suksi, 2015, p. 91). With regard to the Indian case, Harel-Shalev (2009) observes the following: “The Indian constitution guarantees autonomy to its religious minorities, and it promises minorities the freedom independently to manage their religious affairs, as well as a proportional share of the state’s budget in religious affairs” (p. 1263). “The government’s preference for non-intervention in religious affairs has been sustained over the years even though inter-communal peace was bought, to some degree, with the denial of human rights and increased stratification, contrary to the spirit of the Indian Constitution” (p. 1270).

1.1.4.2 Personal Autonomy

The ‘personal autonomy’ concept lays emphasis on the personality principle from which the legal person exercising cultural self-government emerges. Personal autonomy as a subtype of NTA arrangements should be distinguished from material personal autonomy, which implies, according to Suksi, “a choice for a person as concerns different legal regimes (e.g. choice of whether or not to use a system created for the provision of services in minority languages, the choice of moving from a territorial autonomy or jurisdiction to other parts of the state or to another state)” (Suksi, 2015, p. 87). While this distinction is important and justified, the question whether personal law regimes are relevant or not for the NTA literature remains open. Galanter and Krishnan define personal law regimes in the following way: “legal arrangements for the application within a single polity of several bodies of law to different persons according to their religious or ethnic identity. Personal law systems are designed to preserve to each segment its own law. In the last several centuries, the most prominent instances have been personal law regimes in the areas of family law (marriage, divorce, adoption, maintenance), intergenerational transfer of property (succession, inheritance, wills), and religious establishments (offices, premises, and endowments). Such personal law typically co-exists with general territorial law in criminal, administrative, and commercial matters” (Galanter & Krishnan, 2001, p. 271).

In terms of institutional support, authors who deal with the topic agree that the subject of personal autonomy does not need to be a public body, personal autonomy rights can be vested in private law organizations, too (Brunner & Küpner, 2003; Heintze, 1998). According to this logic, personal autonomy as an organizational form can result from the freedom of association: the bottom-up creation of minority organizations carrying out different cultural and other activities that the members of the minority might feel important for identity reproduction can actually involve personal autonomy (Suksi, 2008a). The practice of furnishing with public powers civil law corporations is quite common in the field of education: in the case of private schools operating in minority languages and run by minority associations, public authority is delegated through the license, the right to issue diplomas, and to grade students (Suksi, 2015). Situation in which autonomous powers in different fields are given to different specialized associations, organizations, and institutions may also fall under the personal autonomy concept (Brunner & Küpner, 2003). Personal autonomy may also be seen as the mere guarantee of basic individual rights, which means that it does not require any separate administrative structure (Tkacik, 2008), though this approach is clearly at odds with the idea of autonomy defined as community empowerment.

Providing examples for personal autonomy arrangements is not easy since the term is often used interchangeably with the functional autonomy concept (discussed in the following subsection). The German language schools operating in southern Denmark, for instance, are described by Suksi as eloquent examples of “civil law institutions (…) used in the provision of public services and exercise of public authority for the minority and by the minority” (2015, p. 88), which means that the example qualifies, in principle, for what the definition of personal autonomy requires. Yet, Suksi labels the arrangement as a “form of functional autonomy”, in agreement with Malloy (2015), who analyses the respective example under the heading of “functional non-territorial autonomy” in the Danish-German border region.

Though rarely discussed in the literature, officially recognized churches provide further examples of personal autonomy institutions. In Romania, for instance, Law 489/2006 provides a detailed description of the officially recognized 18 churches as private law legal persons of public utility with membership established according to the personality principle. The 18 churches operate in an autonomous way (Art. 8), according to their statutes and canonic codes, electing their own leadership, choosing the language of operation, having internal procedures of adjudication, hiring staff, holding property, receiving state subsidies, and accepting donations. It is interesting to note in this context that the separation of the Evangelic-Lutheran Church in Finland into two unilingual congregations by the Church Act, one Finnish-speaking, the other Swedish-speaking, is labelled by Suksi as “functional autonomy in ecclesiastical matters” (Susksi, 2008a, pp. 206–207).

1.1.4.3 Functional and Administrative Autonomy

‘Functional autonomy’ is a relatively new element in the NTA literature. Initially, it was suggested to denote the instances of private law version of personal autonomy, resulting from the transfer of selected State functions to private minority group organization, with the aim of relieving the regular public administration of certain duties (Heintze, 1998). Later, the term was proposed to refer to linguistic layering of public institutions, schools above all, but cultural and other type of institutions (health care, for instance) may also offer examples. The arrangements are meant to provide adequate linguistic services to a minority population within the State’s institutions in charge with a certain public function, through the means of appropriate staffing and decentralization of control (Suksi, 2008a; Tkacik, 2008). In Suksi’s account, integrated administrative structures for minorities are created according to public law rules in which “the languages are not separated into different legal persons but instead dealt with (…) within the legal person of the state or the legal person of the municipality”, are present in Finland, Sweden, South Tyrol, Malaysia, Hong Kong, etc. (Suksi, 2015, p. 89).

Though generally viewed as belonging to the TA concept, ‘administrative autonomy’ is a term also used to denote a particular form of NTA: a set of functional autonomies—schools, public services or special, community-serving courts, etc.—coexisting in the same geographic area (Tkacik, 2008).

There is an interesting parallel between the ‘administrative autonomy’ concept as described by Tkacik and the idea of ‘institutional completeness’, targeted by the Francophone Acadian minority in New Brunswick, Canada. The aim of the arrangement is not just providing adequate linguistic services, as in the case of functional/administrative autonomy, but “to permit minorities to live in their own languages” (Chouinard, 2013, p. 236).

In the context of a very particular historical, social, and political setting, dominated by official bilingualism and the spirit of the provisions of the 1981 Equal Communities Act, on the one hand, and the tradition of elected school boards and health boards, complementary to the municipal councils, on the other hand, effective administrative duality emerged gradually in the province: distinct Acadian school boards, health boards, and municipal councils are elected in each four years which bear strong community mandate and are officially recognized as sub-state institutions sanctioned by state law, accessing public funds.

Attempts are made to establish Acadian land use planning commissions, economic development agencies and boards to supervise police forces, too. The sub-state minority institutional completeness provides the Francophone community significant autonomy in areas critical for language and culture maintenance. For further details, see Breton (1964), Chouinard (2013), and Bourgeois (2014).

1.1.4.4 Consociational Arrangements

Consociationalism is often mentioned as an effective tool of conflict management incorporating components of NTA. The original model proposed by Lijphart (1977) was meant to identify the common elements which can be found in deeply divided societies governed by democratic political systems adapted to the circumstances of diversity by deviating from pure majority rule and institutionalizing power-sharing. Four such ingredients were described by Lijphart, two principal, and two secondary. The principal elements are the grand coalition of elites representing the various components of the society and the segmental autonomy of the components, the secondary elements are proportionality (in decision-making and resource allocation) and veto rights of the societal segments.

Explaining the meaning of segmental autonomy, Lijphart describes an arrangement very similar to the Renner–Bauer model: “On all matters of common interest, decisions should be made by all of the segments together with roughly proportional degrees of influence. On all other matters, however, the decisions and their execution can be left to the segments themselves”, facilitating the “rule of the minority over itself in the area of the minority’s exclusive concern” (Lijphart, 1977, p. 41). Segmental autonomy is in Lijphart’s view a generalization of the federal idea which can be also non-territorial. He mentions Renner and Bauer as proponents of a “system of non-territorial federalism” based on the personality principle, which creates “autonomous Kulturgemeinschafte” (Lijphart, 1977, p. 43—italics in the original). In a later work, Lijphart mentions Renner and Bauer as “precedents” of the consociational theory (Lijphart, 2008, p. 4).

Examples of non-territorial federalism are provided in Lijphart’s view by countries like the Netherlands, Austria, and Belgium (as far as the religious-ideological subcultures, rather than the linguistic communities are concerned), where the segments are geographically interspersed, and the segmental autonomy has been established on the personality principle. In Belgium and the Netherlands, consociational arrangements include the right of religious and linguistic minorities to establish and administer their own autonomous schools, fully supported by public funds, while in Cyprus and Lebanon separate personal laws have governed the family matters of religious minorities when consociational arrangements were in place.

The relevance of consociationalism for the NTA scholarship is discussed by several authors (Nimni, 2005; Oakley, 2013; Stratilatis, 2021, etc.). Nimni, for instance, believes “that the consociational model can be enriched considerably from the multifaceted conceptual dimensions of NCA, while the NCA model can be enriched by the wealth of empirical work of consociationalist scholars on deeply divided societies” (Nimni, 2005, p. 8).

There are, however, critical observations, too. For Coakley, the relationship between consociationalism and group autonomy is less evident than it is commonly assumed: elaborate and deep forms of power-sharing may exist without group autonomy, and group autonomy, both territorial and non-territorial can exist without power-sharing: “Thus, we need not expect to find group or segmental autonomy simply because a set of consociational institutions is in place” (Coakley, 2013, p. 58). Bauböck argues that an essential distinction must be observed between Renner’s model and consociationalism: “the latter searches for incentives for cooperation between political elites in central government institutions across segments, while the former is designed to achieve the opposite goal of separating nations from each other by giving each its own institutions of government” (Bauböck, 2005, p. 87).

McGarry and Moore (2005) admit that Renner has anticipated, indeed, consociational theory (including proportionality in state administration and minority veto over legislation), nevertheless they see a fundamental difference between the two. While both models equally freeze identities and reify existing divisions, Renner’s construct triggers, due to its embeddedness in the personality principle, corporatist consequences which are not intrinsic in consociational designs: “although Renner’s power-sharing proposals are prescient and important, his commitment to non-territorial autonomy, which requires corporatist principles, makes his form of power sharing less liberal than it might otherwise have been” (McGarry & Moore, 2005, p. 76).

1.1.5 Assessment

The NTA concept is clearly burdened by inconsistencies. There are, first of all, partly overlapping concepts—national autonomy, national cultural autonomy, cultural autonomy, on the one hand, and personal autonomy and functional autonomy, on the other hand—which are used rather arbitrarily by the various authors in different contexts. There are conflicting views on whether NTA arrangements need institutional support or not, and if so, the respective entities should be private or public law bodies. The large semantic span between the minimal version—personal autonomy understood as individual human rights—and the conceivable maximum—cultural autonomy requiring directly elected public law corporation—reflects a high degree of underdetermination which is undermining the credibility of the concept (see Fig. 1.1).

Fig. 1.1

The semantic span of subjacent terms covered by the NTA concept (Author’s elaboration)

In terms of the arrangements’ effectiveness, it is not difficult to observe that one can talk of genuine cultural self-determination in the case of ‘cultural autonomy’ at best. When the idea of ‘cultural autonomy’ is implemented according to the content of Box 1.4, institutional premises of democratic legitimacy within the autonomous community are provided, and effective cultural/educational self-government becomes possible in principle. When private law corporations created under the ‘personal autonomy’ heading are given consultative role by the State’s authorities, the principle of cultural self-determination might be seriously compromised, and façade NTA arrangements may result. In the cases falling under the ‘functional’ and ‘administrative’ autonomy concepts, though cultural self-determination is evidently diffused, effective form of cultural self-government may occur due to the decentralization of certain competences to professional personnel (for more details, see the Chapter 6).

Finally, the mainstream NTA literature reflects a rather wide gap between the semantic content of the utilized concepts and the empirical realities those concepts are supposed to map, leaving in the blind spot plenty of empirical phenomena which would be worth to explore, like the institutional forms of religious autonomy or the wide variety of normative pluralism together with schemes of community representation that de-territorialize self-determination (see Fig. 1.2).

Fig. 1.2

The underdetermined character of the NTA concept (Author’s elaboration)

The growing interest for the NTA phenomenon which is evident in the scholarly literature lately will hopefully contribute to the gradual amelioration of these shortcomings. Progress in the two highlighted regards—reducing underdetermination and narrowing the gap between theory and practice—would not only facilitate yielding the NTA concept less loaded with inconsistencies, but the differences between illusionary, façade forms of NTA, on the one hand, and genuine arrangements, which serve the interest of the targeted minorities, rather than those of the states, on the other hand, could also become more evident.

Summing-Up

• NTA arrangements fall under the broad autonomy concept and, as such, illustrate the logic of power-sharing. The power, which is divided and shared belongs to the state, the beneficiary of the arrangement is a not territorially defined sub-state actor. In NTA instances, the sub-state actors endowed with certain functions exercised by the state are institutions resulting from laborious procedures initiated by members of a certain category of the state’s population, usually non-dominant groups, regardless of their residence.

• The mobilization of non-dominant groups targeting NTA is a form of struggle for internal self-determination, aiming to gain control over state functions and resources which may be critical for the chances of linguistic, religious, and cultural reproduction. Successful NTA movements result in a vast variety of arrangements, depending on power relations, ethnodemographic realities, the potential for agency of the non-dominant group, institutional traditions, and preferences, etc.

• There are autonomy movements targeting some form of NTA which have not proven successful so far, yet expose clear potential of the claimants for such arrangements. And there are many forms of effective and resilient non-state law, traditional authorities, and practices of informal adjudication which display plenty of similarities with formal NTA arrangements, without being linked to any known autonomy movement.

• The term NTA is an umbrella concept encompassing all possible forms of autonomy short of the territorial version: national autonomy, national cultural autonomy (NCA), cultural autonomy, personal autonomy, functional autonomy, administrative autonomy, and consociational arrangements. The idea of non-territoriality is regularly associated with the personal/personality principle which stipulates that identity communities can be organized into autonomous units without considering residence, by uniting the members, based on free choice, in associations empowered to administer independently issues pertaining to identity maintenance.

• The idea of national autonomy is embedded in a particular historical context: the ambitious project of a thorough state-building reform in the late Austro-Hungarian Monarchy meant to effectively accommodate the nations of the Empire more and more interested in political emancipation. The aim of the envisaged constitutional reform was to conceptually separate the nation from the territory, by separating state functions into culturally irrelevant, and critical for the cultural reproduction of the national communities. The latter would have been handed over to legal entities formed by national communities according to the personality principle, within the frameworks of a broad symmetrical arrangement. The model of national autonomy advocated for by Renner and Bauer was never implemented as such, yet it remained an ideal type, inspiring national movements of important minority communities.

• National cultural autonomy is a term used in contexts when the relationships between dominant majorities and non-dominant minorities are managed by the means of asymmetrical arrangements: the dominant position of the majority is unquestionable, and the interest of the minority is not more than gaining control over certain state functions and resources in order to preserve group identity.

• Cultural autonomy is the most precisely circumscribed type of NTA. The term was officially used for the first time in the Estonian Cultural Autonomy Law adopted in 1925: minority lists into which citizens could freely register, elections organized for electing the cultural council which, as a public law body, could issue by-laws within the limits of cultural and educational competences, impose taxes upon the members included in the lists, elect the members of the cultural self-government, the executive branch of the autonomy, and supervise its activities. Funding for the activities of the cultural self-government was provided by state subsidies, local government support, and taxes collected from the members.

• Personal autonomy is based on the idea that the subject of NTA does not need to be a public body, personal autonomy rights can be vested in private law organizations, too. The practice of furnishing with public powers civil law corporations is quite common in the field of education: in the case of private schools operating in minority languages and run by minority associations, public authority is delegated through the license, the right to issue diplomas, and to grade students. Personal autonomy arrangements can be found in other areas like culture, broadcasting, social assistance, etc.

• Functional autonomy implies linguistic layering of public institutions, schools, and local public administration above all, but cultural and other type of institutions (health care, for instance) may also offer examples. The arrangements are meant to provide adequate linguistic services to a minority population within the State’s institutions in charge with a certain public function, through the means of appropriate staffing and decentralization of control.

• Though generally viewed as belonging to the TA concept, administrative autonomy is a term also used to denote a particular form of NTA: a set of functional autonomies—schools, public services or special, community-serving courts, etc.—coexisting in the same geographic area.

• Consociational theory was anticipated by Renner, and arrangements based on consociationalism may incorporate several elements of NTA. There are, however, fundamental differences between the two models, it cannot be inferred therefore that the two reciprocally generate one another.

1.1.1 Study Questions

• 1. Which are the main differences between TA and NTA arrangements?

• 2. What is the main difference between ‘national autonomy’ and ‘national cultural autonomy’?

• 3. Which are the key institutional components of a cultural autonomy arrangement?

• 4. What makes the difference between personal and functional autonomy?

• 5. Which are the advantages, on the one hand, and shortcomings, on the other hand, of personal and functional autonomy compared to cultural autonomy?

1.1.2 Go Beyond Class: Resources for Debate and Action

• 1. International Journal on Minority and Group Rights, 15(2–3), 2008.

• 2. Andeva. M. (Ed.). (2020). Non-Territorial Autonomy in Theory and Practice. University American College. https://entan.org/entan-activity/non-territorial-autonomy-in-theory-and-practicea-2020-report/.

• 3. When Legal Worlds Overlap: Human Rights, State and Non-State Law, 2009.

  Versoix, Switzerland: International Council on Human Rights Policy. https://reliefweb.int/report/world/when-legal-worlds-overlap-human-rights-state-and-non-state-law-0.

1.1.3 Future Readings

• 1. Bauer, O. (2000 [1907]). The Question of Nationalities and Social Democracy. University of Minnesota Press.

• 2. Lijphart, A. (1977). Democracy in Plural Societies: A Comparative Exploration. Yale University Press.

• 3. Malloy, H., Osipov, A., & Vizi, B. (Eds.), Managing Diversity Through Non-Territorial Autonomy. Assessing Advantages, Deficiencies, and Risks. Oxford University Press.

• 4. Renner, K. (2005 [1899]). State and Nation. In. E. Nimni (Ed.), National Cultural Autonomy and its Contemporary Critics (pp. 13–40). Routledge.

• 5. Wimmer, A. (1997). Who Owns the state? Understanding Ethnic Conflict in Post-colonial Societies. Nations and Nationalism, 3(4), 631–665.