Keywords

1 Introduction

Language is a means of communication in the community, and, in that usage, it can represent one of the constitutive elements in defining a nation in the ethnic sense. Since non-territorial autonomy (NTA) could be understood as self-rule of a group through a non-state entity in matters considered vital for the maintenance and reproduction of their culturally distinctive features, it is quite reasonable that NTA arrangements (non-state bodies) should have certain roles in relation to language as one of such features of the communities they represent. Therefore, the analysis of the legal framework for the roles of NTA arrangements in the implementation of linguistic rights is a scientifically relevant subject of research. Furthermore, this article makes an important and original contribution to the field of NTA studies because, until now, there has been a lack of comparative research that evaluates different NTA arrangements from this perspective. In many countries where institutionalised NTA arrangements exist, the concomitant bodies have a recognised role together with public powers, inter alia, in the implementation of those rights (e.g. in Finland, Hungary, Slovenia and Serbia). The research here analysed focuses on the normative basis for NTA arrangements’ public powers and role in the implementation of those rights. Consequently, the methodology consists of both a formal dogmatic approach and a comparative legal method. The starting point of these approaches is to examine how the law in various countries regulates the same issue, namely, the public powers of NTA arrangements with regard to linguistic rights. The next step in the comparison of the models of selected countries concerns the specific public powers accorded to different NTA arrangements in the field of linguistic rights. The parameters used for this comparison are (1) determining the name of the language of the communities represented by such arrangements, (2) ascertaining to what degree it is standardised and (3) observing its official usage. Having in mind the great importance and interconnections which the official use of language has on the implementation and the prevailing impact of linguistic rights, the special focus of this research bears on these factors, particularly with regard to determining the traditional names of settlements, which is a unique element of the public powers of NTA arrangements in Serbia.

2 NTA Arrangements and Their Public Powers

Scientific papers rightly underline that, within the somewhat muddled multidisciplinary concept of NTA and at least from the legal point of view, it is necessary to dismantle it into relevant parts (Osipov, 2013). More precisely, it is necessary to examine various elements of non-territorial forms of autonomy, suggesting that the main issues in this respect should be institutional design, the powers of NTA institutions, the determination of membership in the group for which the NTA has been created, and the mechanisms of participation of group members (Suksi, 2015, p. 84). In the context of considering the legal framework of the role of NTA arrangements in the implementation of linguistic rights, the focus of this analysis should be on the general overview of the powers granted to such institutional arrangements, with one qualifying remark. Namely, it is necessary to underline that the subject of this analysis is (national) minority self-governing institutions, and not functional NTA. This distinction is made having in mind the approach according to which one aspect of NTA belongs to the domains of both public administration and legal science, since it encompasses NTA understood as ‘new public administration’ or ‘indirect administration’ in the domain of cultural and educational policies, and consists of institutions that obtain public (material) resources and authoritative powers on a regular basis (contrary to ordinary NGOs) (Osipov, 2018, pp. 638–640). Such a distinction is necessary especially in the field of understanding the legal framework of the role of NTA arrangements in exercising linguistic rights, since the functional NTA model implies that regular administrative agencies, state or local, are organised to contain separate branches for the majority and the minorities, functioning in parallel to each other in dealing with the same issues, but in two different languages. More precisely, the goal of the functional NTA model is to provide adequate linguistic services to a minority population in terms of certain public functions by creating special linguistically identified units at different administrative levels within the general line organisation of the national and local administration (Suksi, 2008, p. 199). Also, such a distinction essentially respects the definition according to which bringing the NTA into relation with certain institutions is crucial for defining its concept, because without (self-ruled) institutions such autonomy does not exist (Malloy, 2015, pp. 5, 7) since it implies self-rule of a group through a sub-state entity in matters considered vital for the maintenance and reproduction of their culturally distinctive features (Autonomy Arrangements in the World, n.d.).

The notion of public power is one of the most important notions in legal science and positive law. In the broadest sense, public power means the power vested in a person or body as an agent or instrument of the state in performing the legislative, judicial and executive functions of the state. However, in administrative law, the notion of public power has a slightly different meaning: in former Yugoslavia, for example, the majority of theorists inferred the powers of non-state entities to act authoritatively (Milkov, 2009, p. 95), and since the basis for such action can only be the law, public powers are actually considered special, legally transferred powers to non-state entities, which allows them to carry out their activities authoritatively (Lilić, 2013, p. 168).

According to some authors, public powers, within the activity of the administration, can be classified into: regulation of certain relations of wider interest through bye-laws (so-called regulatory powers), and resolution of specific situations by adopting individual legal acts—as well as other public powers such as the issuance of public documents (e.g. Kunić, 2001, p. 290).

This theory underlines that the decision on which entities will be entrusted with public powers is not unrestricted and, although it does not depend on the discretion of the legislator, it is conditioned by the nature of the activities of certain entities (Milkov, 2009, p. 96). In fact, the main reason why certain entities are entrusted with public powers is related to the need to ensure the proper functioning of the services in the public interest; in order to carry these out properly and smoothly those entities must have power, albeit limited, to act authoritatively (Milosavljević, 2013, p. 178). Thus, the transfer of public powers is linked with the importance that the activities of those entities have for the normal functioning of the community.

Non-state entities cannot use public powers outside of the transferred administrative activity, so entrusting public powers is actually a form of delegation of competencies from the state body to legal entities outside the state administrative body. The state, by a special legal norm, entrusts specific activity, which is otherwise a form of state administrative body activity, to a non-state legal entity (Borković, 2002, p. 24).

Basically, all of the above could apply to minority NTA. However, there are several important further observations to make. Namely, the characteristics of the public powers of minority NTA arrangements also depend on whether that autonomy is guaranteed as a special, collective, constitutional right (and whether other minority rights are also guaranteed as collective), as well as on whether those arrangements are legally defined as representative bodies that belong to indirect public administration, or as (ordinary) state bodies. If minority NTA is guaranteed as a special constitutional right, it is clear that the state must transfer certain public powers to the arrangements through which autonomy is exercised and, in that context, it may be emphasised that those public powers are inherent to NTA. Of course, specific circumstances and needs for each minority in each country determine which powers will be transferred. On the other hand, if NTA arrangements have a representative character, it is clear that they will also have some scope for autonomous decision-making but, when their scope is within indirect public administration, they will have been entrusted public powers, while, if they are defined as state bodies, they will have a smaller scope for autonomous decision-making and for holding original prerogatives of state power. In general, the content of those powers can vary widely—from autonomous and final authoritative decision-making, especially in individual matters and the adoption of individual administrative acts, over the participation in public institutions/services management and decision-making, including the process of adoption of bye-laws, to the exercise of consultative functions which, having in mind the discussion above on the definition of public powers, do not constitute such powers stricto sensu. Also, based on comparative law research, it is clear that there are limits to the regulatory powers that can be transferred to ethnic communities’ bodies on a non-territorial basis (Đurić, 2018, p. 319). Moreover, except in a narrow scope and exclusively at the local level, e.g. as in Hungary, the NTA arrangements’ powers in comparative law do not imply veto power (Vizi, 2015, p. 47).

3 NTA Arrangements and Linguistic Rights

Language is an essential component of personal identity. It is also a medium of communication in the community. In that sense, as stated, it is primarily an ethnic category. Moreover, it can represent one of the constitutive elements in defining a nation in the ethnic sense and be a strong symbol of ethnic (self-)identification. Therefore, although there is not always a clear congruence between ethnicity and language (May, 2008, p. 129), the latter is a means of communication but not a culturally neutral one and therefore it is not surprising that national minorities, often the speakers of a minority language(s) within a state, have traditionally articulated language claims as part of their agenda (Rubio-Marin, 2003, p. 52).

Since NTA, as previously stressed, implies self-rule of a group through a non-state entity in matters considered vital for the maintenance and reproduction of their distinctive cultural features, in order to understand the legal framework of the role of such entities (NTA arrangements) in implementation of linguistic rights, it is essential to point out that collective linguistic rights may be defined as ‘the right of a linguistic group to ensure the survival of its language and to transmit the language to future generations’ (Chen, 1988, p. 49). In that sense, and starting from the fact that linguistic rights are related to different areas of social life in which and through which those goals can be achieved, it is clear that the role of NTA arrangements in the implementation of linguistic rights can be spread throughout the fields of culture, education, information, etc., but in different ways and to different extents.

First of all, while NTA bodies can be founders of institutions that are important for the implementation of linguistic rights in those areas and they can exercise management rights, comparable legislations differently determine the types of institutions that can be established by such bodies. On the one hand, these may be institutions that, as in the case of institutions established by other non-state legal and natural persons, are private institutions that may receive regular state aid or be financed by funds that NTA bodies regularly receive from the national budget. On the other hand, it is rare—and thus far provided only by Hungarian and Serbian legislation—that such arrangements can take over the existing public institutions that have already been established by the state or other levels of government, retaining their purposes and essential structure, but under the management and with the participatory managing public powers of NTA bodies. It is important to point out that in the case of such public institutions, although they are managed by NTA bodies, the exercise of linguistic rights through educational curricula or work and publication programmes is still regulated by state legislation, thus limiting their role and activity.

There is a qualitatively different role of NTA arrangements in the implementation of linguistic rights, which consequently leads to a different character of public powers, when participation is enabled in decisions on certain issues in the fields of education, culture and information. From the legal perspective, such participation in decision-making on the implementation of linguistic rights should be distinguished from simply consultation and/or proposing measures and activities related to those issues. To put it differently, this participation in decision-making on the implementation of linguistic rights relates to the obligation of public authorities to ask their opinion and/or to consider their proposals and respond to them. It is a matter of participation in decision-making being connected to the possibility of initiating appropriate administrative procedures—with the necessary expression of opinions during administrative decision-making procedures being taken into consideration—and giving prior or subsequent consent to the decisions of public authority, or final authoritative decision-making of NTA arrangements on matters related to the exercise of linguistic rights. The expression of such powers is exemplified by the solutions provided by the Finnish Act on the Sámi Parliament (1995), according to which the national authorities will negotiate with that body on all important issues that may directly and in specific ways affect the status of the Sámi as an indigenous people and which concern, among others, the development of the teaching of and in the Sámi language in schools in the Sámi homeland.Footnote 1 The somewhat more precisely legally regulated powers of national councils of national minorities in Serbia enables them to propose school plans and programmes for minority languages and to give prior consent in the process of approving students’ books in minority languages. A special and very important type of participation of NTA arrangements in decision-making is in cases when representatives of those bodies participate in the work of regulatory and other independent bodies which, independently of state bodies, autonomously decide on the issues related to the implementation of linguistic rights in various spheres of social life. This is especially the case in the field of information, when such bodies decide on the programme schemes of public media services, and consequently on the quantity and quality of programmes in minority languages. The Hungarian, Slovenian and Serbian legislations all enable the representatives of the NTA arrangements to participate in the work and decision-making of such bodies.

Besides the fields of education, culture and information where there is public use of language, a special dimension of the exercise of collective linguistic rights relates to the official use of languages and scripts of groups in whose favour NTA arrangements are established. In that sense, and bearing in mind that the official use of language and use in relations with administrative bodies is perhaps the most concrete indicator of their legal status, further attention in considering the legal framework of the role of NTA arrangements in the implementation of linguistic rights should be paid to the issues of powers of such arrangements with regard to the official use of language (Poggeschi, 2012, p. 166).

4 NTA Arrangements and Official Use of Languages and Scripts

Before considering the legal framework for the role of NTA arrangements in the implementation of linguistic rights in the context of their powers with regard to the official use of language, it is necessary to ask three interrelated methodological questions. Firstly, is there a (collective) right to the official use of language? Secondly, does the official status of a language imply territorial consequences and, consequently, could the exercise of the NTA arrangements’ powers in that context also have territorial aspects? Finally, what does the official use of a language imply?

Regarding the first issue, it is necessary to underline that it is possible to draw a distinction between the right to a language and the right to the language. The right to a language would be the right to the official language based on historical and sociolinguistic conditions and it would materialise in the recognition of an official status. According to that view, the right to a language would be a collective right that would imply the power of a specific linguistic group to obtain an official legal status for its language. On the other hand, the right to the language would be a fundamental, universal and permanent (individual) human right which would legitimate people to use their language in every private function and in some public relations (for example, in one’s own defence when facing an accusatory procedure) regardless of the fact that such a language does not have an official status (Ruíz Vieytez, 2004, p. 19).

Legal regulation of the official character of a language often includes territorial aspects of such (official) status. In this context, there are five models in comparative European constitutional law: (1) two or more languages are official in the whole of the state; (2) several languages have an official character, but in different parts of the state; (3) one language has an official status, but in some regions of the country such status is also recognised for other languages; (4) the official status has one language in the territory of the whole state, but minority languages can also be found in official use in certain fields or institutional contexts; and (5) states have only one official language, explicitly declared or established in practice, but legal solutions have been established to protect the linguistic rights of minority language speakers in which the degree of language protection may be greater or lesser in extent (Ruíz Vieytez, 2004, pp. 14–15). It is therefore clear that the exercise of public powers of the NTA arrangements, if such powers are legally established, may have a territorial dimension.

In the broadest sense, the recognition and establishment of the official status of a language can be described as a situation when ‘it is recognised by public authorities as the normal means of communication within and between themselves and in their relations with private individuals, with full validity and legal effects’.Footnote 2 We should add to such a definition of the content of the official use of languages and scripts an emphasis on topographical indications in those languages, especially in the context of minority languages.

In the comparative law of states with NTA arrangements, the regulation of topographical issues varies significantly. The right to a language, understood as a (collective) right to an official language, is provided only by the Constitution of Serbia (2006), which in Article 79 stipulates, inter alia, that persons belonging to national minorities shall have a right, in areas where they make up a significant proportion of the population, to proceedings in their own languages before state bodies, organisations with delegated public powers, bodies of autonomous provinces and local self-government units. In some areas, this includes the right to have traditional local names, names of streets, settlements and topographical names also written in their own languages, thus determining the content of the official use of minority languages. The Hungarian Constitution (2011, art. 29) more narrowly, stipulates that nationalities living in Hungary shall have, inter alia, the right to the individual and collective use of names in their own languages. The Slovenian Constitution (1991, art. 11) stipulates that in the municipalities where the Italian and Hungarian communities reside, their languages shall also be official, which indeed implies a high level of language protection, even though an official status of those languages is not normatively postulated as a (collective) right of those communities.Footnote 3 The Finnish Constitution (1999) stipulates in Section 17 that the Sámi, as an indigenous people (as well as the Roma and other groups), ‘have the right to maintain and develop their own language’ and that ‘[p]rovisions on the right of the Sámi people to use their language before the authorities are laid down by an Act’. It is important to point out that in Section 121 the Constitution stipulates that the Sámi people, in their native regions, are guaranteed ‘linguistic and cultural self-government … as provided by an Act’.

In the given framework of the role of the NTA arrangements regarding the official use of the languages of the communities in whose favour they have been established, several issues require special attention. Those are the possible role and powers of such bodies in terms of determining the names of the language of communities that such arrangements represent, their standardisation and introduction into official use, as well as matters concerning various types of such use of languages.

Regulation of the official use of languages, especially if their official status is recognised or can be recognised and determined as minority languages, raises the question of defining the notion of language and the eventual recognition of the existence of separate languages within the legal order. In most European countries, there are no legal regulations that define the notion of language or determine legally relevant distinctive elements of a particular language’s establishment. Accordingly, there are no special, legally regulated procedures for the official recognition of the existence of separate languages through which the competent authorities would verify the existence of such distinctive elements. Basically, such issues can hardly be fully regulated by legal norms. As an example of the difficulties encountered in making this possible, science uses the distinctions between language and dialect, and may note that this is not only a scientific fact but also a symbolic and political matter. In that sense, different languages are often standardised and consolidated by the existence of a specific political community, just as the names of particular languages lead to political debates up to the extent that, in the field of law and contrary to what a linguist would accept, the language name is what defines it (Ruíz Vieytez, 2004, p. 3). It is therefore not surprising that in comparative law there are no explicit solutions that would entrust the NTA arrangements with powers related to defining the notion of language and possible recognition of the existence of separate languages.

The fact that NTA arrangements in comparative law are not transferred by public powers related to a definition of the language does not mean, however, that such bodies do not have a role in standardising and meeting other necessary preconditions for the official use of languages. Moreover, some theoretical approaches to the management of linguistic differences clearly indicate that NTA’s lack of legislative competence can, in practice, be ‘balanced’ by a high degree of control over the bodies in charge of the standardisation of minority languages (Arraiza, 2015, p. 28).

Quite simply, public authorities, particularly in the context of official use, should accept community language standards according to the acts of respective NTA arrangements, since this is essentially within the scope of (cultural) autonomy. Indeed, in comparative law, sometimes even without an explicit normative basis, NTA arrangements can standardise the language of the communities in whose favour they are established, which, by its legal nature, may represent an autonomous authoritative decision-making and have far-reaching normative effects equal to regulation, with the effect of erga omnes, as is the case in the Republic of Serbia.Footnote 4 However, in practice in some countries, according to assessments of the NTA arrangements themselves, their decision-making powers turn out to be very limited in practice even in the field of language.Footnote 5

On the other hand, some international instruments, such as the European Charter for Regional or Minority Languages (ECRML), instruct in Article 7 (4) the Contracting Parties to encourage those groups who use minority languages to establish, if necessary, appropriate bodies for the purpose of advising the authorities on all matters pertaining to those minority languages.Footnote 6 However, it is important to note that NTA arrangements covered by the Charter do not imply an obligation to establish regulatory (or any other significant public) powers, but that their role should be advisory.

A narrower, but significant concentric circle of public powers regarding the official use of languages exists where NTA arrangements, as authorised proposers, initiate the procedure of determining such use of language or give prior or subsequent consent to decisions of public authorities on certain aspects of such use, in particular with regard to topographical indications. In Hungary, for example, NTA arrangements have some of these powers: according to Article 81(1) of Act CLXXIX of 2011 on the Rights of Nationalities, local parliaments can only adopt a decision on the collective use of language with the consent of minority self-government arrangements.Footnote 7 In Slovenia, according to Article 17(4) of the Law on the Marking of Buildings and Naming of Settlements, Streets and Buildings, the consent of the relevant councils of self-governing ethnic communities must be obtained before any local decision-making on the names of settlements and streets in ethnically mixed areas. In Serbia, according to Article 22(3) of the Law on the National Councils of the National Minorities, the national councils of the national minorities can propose the establishment of minority languages and scripts as official in the local self-government unit. Moreover (still in Serbia), minority national councils have a special power regarding topographical indications. The theoretical review of legal solutions underlines that their concept is not to delegate administrative decision-making powers to national councils, but to involve those bodies in the decision-making process of central, provincial and local authorities (Korhecz, 2015, pp. 80–81), so that the powers of national councils do not disrupt the existing legal decisions and regulatory mechanisms, but complement them (Korhecz, 2014, p. 155). However, Article 22(1) of the Law on the National Councils of the National Minorities stipulates that the national council determines traditional names, including settlements, if the minority language is in official use in the area of the local self-government unit, and that such names become names in official use and are published in the Official Gazette of the Republic of Serbia or in the Official Gazette of AP Vojvodina. This provision authorises national councils to constitutively, i.e. finally and authoritatively determine the names of settlements that may be different in minority languages from the official names in the Serbian language, without any foundation in historical material and/or real needs.Footnote 8 This is a unique public power of the NTA arrangements in comparative law that goes far beyond international standards.Footnote 9

On the other hand, such a very extensive authoritative power of the NTA arrangements is limited, since the transitional and final provisions of Serbia’s Law on the National Councils of the National Minorities stipulate that if the national council does not establish traditional names within three months from the date of its entry into force, such traditional names shall be determined by the government, i.e. the competent body of the relevant autonomous province—if the national council has its seat in the territory of such—in cooperation with local self-government units, national minority organisations and experts in the language, history and geography of that minority. Thus, the power to determine traditional names is regulated in the Serbian legal system somewhat contradictorily—on the one hand it is set as very extensive, authoritative and final in decision-making, while on the other hand, under the threat of transferring its exercise within the jurisdiction of the government, it is limited to short time deadlines. It is important to stress that this is the only public power of the NTA arrangements in Serbia to which this time-limitation applies. Moreover, the legal solutions are vague regarding whether the NTA arrangements would permanently lose the stated public power if it missed the designated deadline, whether it could possibly change the government’s decision and, finally but most importantly, whether the exercise of such power by the government is truly in line with the NTA arrangements’ essential and legal power as originally intended.

5 Concluding Remarks

If the purpose of NTA arrangements is to exercise self-government in matters considered vital for maintenance and reproduction of the distinctive cultural features of groups, then they must have a legally defined role in the exercise of linguistic rights, since language is certainly one of the most important cultural and, in a broader sense, identity features. Legally speaking, the role of NTA arrangements in any field of social life can be different and have a wide scope—from a consultative role to fully autonomous and final authoritative decision-making, which is the essence of public powers. However, given that in comparative law there are no examples of explicit recognition of (autonomous) regulatory powers transferred to NTA arrangements to be independently exercised with erga omnes effect, their public powers may consist of authoritative decision-making in individual matters and adoption of individual administrative acts, as well as participation in the management of public institutions/services and in decision-making that includes the process of adopting general acts, mostly bye-laws. It seems that, in comparative law, the public powers of the NTA arrangements in the context of the legal framework of their role are most pronounced in the field of implementation of linguistic rights, but in different ways and to different extents. Having in mind that linguistic rights are exercised in different fields in comparative law, there is a noticeable tendency, in the fields of education, culture and information, for public powers to have a participatory-managerial character and that, to some extent, they contribute to decision-making. On the other hand, the official use of language, precisely due to its official character, implies an increased degree of authority of the NTA arrangements’ public powers in the exercise of linguistic rights. This may particularly refer to language standardisation, which NTA arrangements can perform, sometimes even without an explicit normative basis and which can ‘balance’ the lack of legislative competence of such bodies. Also, the increased degree of authority of the NTA arrangements’ powers in the implementation of linguistic rights in the context of official use may be stressed if, as the example of Serbia shows, linguistic rights are partly normatively postulated as a constitutionally guaranteed (collective) right to an official language. However, it is noticeable that comparative legislation is reluctant to recognise any role for NTA arrangements in terms of determining (with regard to name and distinctiveness) the language of the communities represented by such arrangements, and that, even in case of the single authoritative and final determination of traditional names that such arrangements have in Serbia, their exercise is limited by certain legal conditions that in fact question the very legal nature of such powers.