Keywords

In order to understand how members of ethno-cultural groups enjoy and benefit from non-territorial autonomy (NTA) in their daily lives, it is important to understand how they establish and operate NTA institutions. In the previous chapters, we have learned that there are legal and political frameworks which are required to allow ethno-cultural groups the right to set up their own NTA institutions and organizations.

  • But how do members of ethno-cultural groups come together collectively to organize autonomy as a result of being granted rights to decide over their own affairs?

  • What are the capabilities and activities which ensure that the members of ethno-cultural groups can be empowered?

In other words, not a legal and political account of what are their rights but rather a sociological account of how they operate and implement their rights. This is the focus of this chapter.

Importantly, a key to understanding the discussion in this chapter is the implementation of the rights promoting NTA. Normally, governments are expected to implement rights but in the case of ethno-cultural NTA, the members of minority groups need to have a strong role in implementing their own rights. This is because, according to Tove H. Malloy, the main idea of being autonomous is being empowered and involved (2014). First, being empowered requires knowledge about how to access one’s rights. Knowledge about the special rights that are part of the foundation of NTAs, such as cultural and political rights, is important. Secondly, autonomous action is required to exercise those rights. Taking action, or to act on the special rights assigned to ethno-cultural groups seeking to enjoy NTA, means the ability to muster agency. One can, of course, decide not to take action and thus not to exercise a right, but that does not cancel the right once it has been codified as law. Agency is the power and willingness to influence one’s own life, for instance to make something happen that improves one’s situation. The entrepreneurship of ethno-cultural actors can play an essential role in this. However, in the case of NTA, collective action is required because individuals cannot enjoy NTA alone; it is a joint endeavour pace Mansur Olson’s theory of collective action (1965). Therefore, members of ethno-cultural groups must decide as groups to take joint action to implement their own rights. Only then will they be empowered.

Furthermore, to implement NTA there needs to be institutions and organizations through which members of ethno-cultural groups can carry out the work and make NTA operational. These are not usually established by the state and the authorities because that would be a violation of the idea of autonomy. Rather, ethno-cultural groups must set up the facilities, using both material and non-material resources, in order to become empowered. However, authorities can support ethno-cultural groups in their work. With regard to the material side of NTA, governments and authorities can provide subsidies in terms of buildings and land or access to such as well as to other tangible materials needed to set up and run organizations, as discussed by Detlev Rein (2015). With regard to the non-material side of NTA, governments can provide subsidies for instance to running costs and salaries. These financial aspects depend on the agreements that are reached between the state and/or local authorities, on the one side, and the ethno-cultural groups seeking to establish and run their own organizations, on the other side. In other words, ethno-cultural groups must be able to represent themselves and put forward their wishes or needs to the government and its authorities in order to access their NTA rights. This also means that ethno-cultural groups must be able and willing to co-operate with the government and authorities. A key question is, therefore, how do ethno-cultural groups muster collective agency that enables them to make decisions and co-operate with public authorities?

The answer to the key question is manifold. Ethno-cultural groups seeking NTA status must establish institutions and procedures that promote autonomy internally within the group and within their organizations. They must be motivated to want to establish the operational structures for their autonomy. Motivation is usually driven by a desire to preserve and protect the ethno-cultural traditions and identities of the group. At the same time, ethno-cultural groups must set up institutions that not only operate and function well but also are respected among their own members and by the public authorities. If they are successful in this, their NTA setup will gain legitimacy. According to Malloy, public authorities on their part must make sure that ethno-cultural NTA groups are able to participate in the democratic debates and procedures relevant to their NTA powers on par with all other civil society organizations and public agencies (2018). Article 15 of the European Framework Convention for the Protection of National Minorities (FCNM) adopted on 1 February 1995 and in force 1 February 1998 provisions that ethno-cultural groups should be able to participate effectively in public life, including political, social, and cultural aspects of public life. Moreover, ethno-cultural groups must make sure that the institutions are managed and operated properly, and the procedures are followed correctly. They must know that poorly managed institutions will not last, and thus there is a risk that the opportunity to establish NTA may be lost. For the same reason, it is important that NTA institutions and procedures follow the rule of law and good governance internally as well as externally. Ethno-cultural groups establishing and managing their own NTA institutions must comply with all constitutional standards and ensure that the constitutional rights of all members and persons interacting with NTA institutions are not violated. If they receive public funds, they must show that they are not corrupt in managing the funds. As argued by Jeremy Waldron, ethno-cultural groups must also show that they respect mainstream society and the general rules of society by accepting civic responsibility (2000). Finally, the NTA institutions must be able to show impartiality in internal disputes that could jeopardize the respect of mainstream society. In other words, ethno-cultural NTA institutions are autonomous only in so far that they abide by the general rules of mainstream society, earn the respect of same and co-operate with society. If ethno-cultural groups can achieve these goals, they will feel in control over their own lives.

10.1 Methodology

To verify that ethno-cultural NTAs are successful is a complex analysis that needs relevant scientific tools. A good set of indicators is the best tool for assessing NTA operations. According to the World Bank, indicators are broadly defined as information indices describing the state-of-affairs of something (2004). Indicators can be designed on the basis of both quantitative and qualitative information. Quantitative indicators are based on facts presented with a specific objective numeric value measured against a standard and usually not subject to distortion, personal feelings, prejudices, or interpretations. Qualitative indicators represent non-numeric conformance to a standard, or interpretation of personal feelings, tastes, opinions, or experiences. An indicator is thus a technical description of factors to be examined when aiming at verifying and measuring developments in a specific area of society. The reason why indicators are descriptive is that an indicator can only measure what has happened in the past; it cannot predict or estimate the future.

In addition, indicators have aims. In the study of ethno-cultural groups, Francois Grin argues that some indicators assess legal and political aspects of governance (2006), other indicators assess the actors within a system of governance. The first type aims to assess policy frameworks or systems, whereas the second aims to assess behaviour—the behaviour of the actors within the systems. Both are known as performance indicators not to be confused with policy indicators, which are static. In this chapter, we will discuss performance indicators that seek to assess the level of action and agency of ethno-cultural groups operating NTA institutions and organizations.

The performance indicator approach of assessing groups establishing and operating NTAs, Malloy argues, is theoretically based on the sociological method of ‘structure and agency’ (2021). Structure-and-agency is a social science approach to understanding human behaviour. It has been developed and applied by numerous sociologists over the years. It is a non-positivist approach based on the structuration theory of sociology. One of its proponents was the British sociologist, Anthony Giddens, who argued that just as an individual’s autonomy is influenced by structure (society and its institutions), structures are maintained and adapted through the exercise of agency (the ability to influence one’s life by acting on one’s own will) (1982). In a sense, there is a two-way inter-action between the structures and the agency of people. Giddens theorized the idea of structuration, meaning the inter-active process between society and people that binds them together in a mutual inter-relationship of socialization (1984).

In practice, the methods applied focus on many aspects of socializations, such as production and reproduction of social practices in specific contexts. They seek to identify both stasis and change, agent expectations, relative degrees of routine, tradition, behaviour, and creative, skilful, and strategic thought. They examine among other spatial organization, intended and unintended consequences, skilled and knowledgeable agents, discursive and tacit knowledge, dialectics of control, as well as actions with motivational content, and constraints.

Drawing on the theory of structuration, we can identify five areas of collective ethno-cultural agency that relate to the operationalization of NTA institutions:

  1. a.

    Mobilizing for the cultural survival of ethno-cultural groups (motivational content).

  2. b.

    Establishing authority of decision-making within the group (skilled agents).

  3. c.

    Securing control over administration and management of own institutions (spatial organization; dialectics of control).

  4. d.

    Promoting internal acceptance of regulation set by the group (actions of constraints, agent expectations).

  5. e.

    Securing impartiality in internal adjudication of disputes (strategic thought, dialectics of control).

There are a number of assumptions guiding these areas. First, autonomy over own affairs through own institutions will support a perceived need for protecting the group against assimilation. According to Will Kymlicka, assimilation is considered a negative result of inter-cultural and multicultural socialization because it does not allow the individual members of ethno-cultural groups to maintain their personal identity. Having to suppress one’s identity—whether sub-consciously or consciously by succumbing to external pressure—is considered a violation of the rights of the individual (1989: 145–146). Thus, governments that overtly or covertly impose policies to suppress ethno-cultural identities are committing crimes against humanity. The international human rights treaty system requires states to adopt legislation that protect the cultural identity of individuals. Second, according to Charles Taylor, autonomous decision-making will empower the group to reduce aspects of inter-societal relations that are detrimental to the group’s cultural survival (1989). Third, according to Kymlicka, autonomous administration and management of independently created and organized NTA institutions will empower the group to preserve and promote cultural identity (2007). Fourth, autonomy to make decisions about internal regulations will empower the group to be respected as a group seeking to preserve its ethno-cultural identity, and fifth autonomy over internal conflict management and adjudicative mechanisms will empower the group to resist assimilation of cultural traditions. The five areas and the assumptions behind them comprise the framework for a set of performance indicators, or an index of indicators for how ethno-cultural groups operate their own NTA institutions.

10.2 Designing NTA Indicators

To design NTA indicators it is necessary to identify how ethno-cultural groups implement the rights that secure their autonomous action. In technical terms, the index of NTA performance indicators must describe the criteria for how agency is mobilized, how actions are effectuated, and how these aspects can be verified. First, describing methods of ascertaining agency requires knowledge about motivation and drive. Second, describing actions requires data about programmes. Third, describing methods of verification requires knowledge about sources, and fourth, describing methods of appraisal requires synthesis and perhaps comparison. These methodological aspects are crucial to designing good indicators. This chapter only provides very general suggestions; often methods must be adjusted to the specific situation and the specific country. Thus, there are four categories of description for each of the five NTA performance indicators. Finally, it is important to note that NTA is seldom static but continues to develop or, if not properly implemented, to deteriorate. What we can verify is, therefore, the degree of NTA as opposed to a set standard of when NTA exists.

Box 10.1 Categories of description

a. Agency

b. Action

c. Verification

d. Appraisal

Sources Malloy, T. H. Introduction. (2021). In T. H. Malloy & L. Salat (Eds.), Non-Territorial Autonomy and Decentralization (pp. 3–22). Routledge.

10.3 An Index of NTA Indicators

Using emancipatory terminology, the five areas of ethno-cultural NTA may be rephrased as five indicators each describing a value of autonomy as follows:

  1. 1.

    Self-organization in terms of self-established and self-created institutions.

  2. 2.

    Self-decision-making in terms of independent design and reasoning about strategies.

  3. 3.

    Self-administration and self-management in terms of implementation of strategies, routines, and procedures.

  4. 4.

    Self-regulation in terms of self-imposed human rights norms and other systems of ethics.

  5. 5.

    Self-adjudication in terms of independent conflict settlement and crisis management.

These five autonomy values, or NTA values, will be discussed below with a view to explore how they can become performance indicators.

10.3.1 Self-Creating and Self-Organization

NTA in terms of the value of self-creating and self-organization means having the freedom to establish and design institutions of relevance for preserving and promoting the ethno-cultural group’s culture and identity. This means independence from government intervention, but not necessarily lack of government sanctions. Full independence from government oversight does not exist. To be autonomous means acting freely but with a duty to comply with general and common rules as well as any rules agreed upon for the setup of the NTA institutions. In legal terms, the right to set up NTAs is a right to certain powers (often defined by a contract or agreement). According to Peter Jones, in so far that an ethno-cultural group enters into an agreement with the entity that can convey the powers (the government or authorities), the group is bound by the conditions of the agreement, i.e. the group has a liability to implement the agreements as prescribed (1994: 22–24).

Using this indicator, it is possible to assess the degree of autonomy that NTA cases represent with regard to detecting a bottom-up drive within the ethno-cultural group to establish structures, physical and non-material, inter-dependent structures with some horizontal articulations about mutual goals that support the cultural life and cultural survival of the group. A key to the appraisal of the degree of autonomy is the cohesiveness and motivation of the drive for cultural survival through self-creating and self-organization.

Technically, the method is descriptive, and the verification approach is quantitative and qualitative with references to empirical data about registration of organizations with public authorities, by-laws adopted by the organizations as well as strategies developed. Action plans and projects that may indicated preparedness to implement are also relevant. Anything that can verify that the ethno-cultural group is motivated collectively and mobilizing to establish and use the organizations to protect and promote the group’s culture and identity is thus relevant as basis for an assessment of the degree to which NTA is implemented.

Box 10.2 NTA value: Self-creating/self-organisation

a. Agency: Entrepreneurial drive to create and establish own NTA institutions and organisations independent from government intervention.

b. Action: Physical and non-material inter-dependent structures with some horizontal articulations about mutual goals.

c. Verification: Registration records. By-laws of organisations. Strategy documents. Action plans. Public law on civil society self-organisation.

d. Appraisal: Overall motivation and mobilisation of the group as a group.

Source Malloy, T. H. (2021). Introduction. In T. H. Malloy & L. Salat (Eds.), Non-Territorial Autonomy and Decentralization (pp. 3–22). Routledge.

10.3.2 Self-Decision-Making

NTA in terms of self-decision-making, or independent decision-making, means having the freedom to adopt decisions, to plan and strategize about own NTA institutions within regulative, normative, cognitive, and imaginary frameworks. Self-decision-making supports self-organization in that it requires the ability and capability to make independent reasoning leading to decisions about independent strategies for institutions. But, according to E. Sadan, it goes beyond self-organization in that it requires mechanisms for decision-making and the ability for such mechanisms to arrive at joint actions (2004). Thus, in addition to establishing organizations, self-decision-making requires the ability to devise tactics about how to implement plans and programmes. It also requires the ability and willingness to react to and make decisions about changes within the organizations and the already adopted plans. Moreover, these decisions must carry authority within the broader group of ethno-cultural members in order that the organizations continue to enjoy respect within the minority group.

Technically, the degree of self-decision-making can be verified both quantitatively and qualitatively. The method is again descriptive with references to empirical data, such as annual reports and other types of periodic evaluations of performance. Third-party research can be of good value here as well as community narratives and interviews with individual members. Public statements and media reports may also be relevant and useful. The key is to find information that may assist in assessing the authority of the self-decision-making processes within organizations. The greater authority, the greater legitimacy.

Box 10.3 NTA value: Self-decision-making

a. Agency: Taking decisions about planning and strategizing for future of own NTA institutions taking place within regulative, normative, cognitive and imaginary frameworks.

b. Action: Processes in terms of ability to reason and deliberate. Mechanisms for decision-making. Tactics devised and strategies followed.

c. Verification: Annual reports. Evaluation documents. Community narratives. Interviews with actors. Public statements and media. Third-party research.

d. Appraisal: Authority. Legitimacy.

Source Malloy, T. H. (2021). Introduction. In T. H. Malloy & L. Salat (Eds.), Non-Territorial Autonomy and Decentralization (pp. 3–22). Routledge.

10.3.3 Self-Administration/Self-Management

NTA in terms of self-administration and self-management means having the freedom to organize bottom-up activities and programmes without state interference with a view to implement decisions taken about strategies, action plans, and goals. This can range from a simple system of managing membership fees to a very sophisticated system of handling public service provisions, such as delivering education, cultural activities, social care, or more complex community needs. The ability to co-operate with public authorities is central to this type of NTA functions. Experts of public administration, like Huanming Wang and colleagues, talk of public–private partnerships by which private actors join public agencies in delivering a service (2018). In some cases, private actors may take over entirely the functions on behalf of the public agencies. This means that the private actors must abide by same rules as for public agencies and thus cannot operate fully private and without interference from the authorities. There are different reasons for setting up public–private partnerships. In some cases, it is a necessity because the public sector is not strong enough or large enough to take on the functions. In other cases, it is an ideological view that cooperation between public and private organizations is more efficient. The latter is relevant, if the private side of the cooperation has greater knowledge about the field. In the case of NTAs, Kyriaki Topidi has argued that the NTA organizations may have greater experience with providing adequate services to their own members in areas such as education and culture (2021). It usually requires organizations to elaborate a set of by-laws as well as management routines. They should have capacities for programme planning and project implementation. In cases of cooperation with authorities for delivering services, the competences of the NTA organizations should be clearly defined.

Technically, the degree of self-administration can be verified both quantitatively and qualitatively. The method is descriptive with reference to empirical data on by-laws, management documents, annual plans, and annual reports as well as project descriptions and project implementation. A key to the appraisal of the degree of autonomy in terms of self-administration and self-management is the permanency of the institutions, their ability to keep control of their own affairs, and their competences in managing their own organizations. Availability of funding is also a relevant factor in assessing whether NTA organizations can continue as self-managed institutions.

Box 10.4 NTA value: Self-administration/self-management

a. Agency: Control over administration and management of own NTA institutions and organisations.

b. Action: Implementation of by-laws and strategies. Management routines in place. Programme planning and project implementation. Interactive co-operation with authorities. Competences of public management areas and public service delivery.

c. Verification: By-laws. Management documents. Annual programmes and annual reports. Project descriptions.

d. Appraisal: Control. Competency. Permanency.

Source Malloy, T. H. (2021). Introduction. In T. H. Malloy & L. Salat (Eds.), Non-Territorial Autonomy and Decentralization (pp. 3–22). Routledge.

10.3.4 Self-Regulation

NTA in terms of self-regulation refers to both the freedom and duty to make decisions about self-imposed ethics within NTA institutions. Such freedom is not absolute and should be described with regard to external pressure or external guidance on duties. Helen Quane has increased the focus on the degree of freedom in terms of autonomy and human rights norms (2021). Especially, if NTA organizations take on state-like features and services, alone or in public–private partnerships with authorities, adherence to human rights norms must be assessed. All types of collective autonomy are now expected to assert adherence to such norms, NTA included. Countries are constantly under scrutiny by international organizations and international NGOs to show that human rights are respected at all levels of society, and this impacts on how much freedom NTAs have internally and whether they take on the duty to self-regulate. Deon Geldenhuys discusses this in terms of the rights of the Afrikaner in South Africa (2021). Ethno-cultural groups are, therefore, expected to self-impose human rights norms precisely because universal ethics must be respected.

Such self-regulation is arguably a sign of good faith on the part of the ethno-cultural groups, but it also has implications for the assessment of the degree of autonomy. One could argue that the decision to self-regulate or not to self-regulate is the ultimate test of whether an NTA has gained legitimacy within the general public and with governments. At the same time, there are also specific matters, such as criminal justice, that might require the NTAs to accept externally imposed regulations. Criminal law is not usually deferred to autonomous groups, whether they enjoy territorial autonomy or NTA. The most autonomous situation is found in the agreements with the Native Americans in the USA as described by Sherrill Stroschein (2014). Most reservations have powers over their own law enforcement structures, including a tribal police force, and have tribal courts that adjudicate family law and some criminal matters for tribal members. However, they do not have any jurisdiction over non-members residing or visiting the reservations. As noted, regulation in the NTA context is seldom a unilateral decision. Thus, assessing self-regulation can be dependent on the legal and political framework established for the NTA model.

Technically, the degree of self-regulation is verified both quantitatively and qualitatively using empirical data on codes of conduct policies adopted by NTA institutions, ethics statements in strategies and action plans and surveying public law regulations. A key to the appraisal of the degree of autonomy is the level of internal acceptance that the self-imposed rules have among the members of the group. The higher acceptance, the higher legitimacy of the NTA institutions.

Box 10.5 NTA value: Self-regulation

a. Agency: Taking decisions about self-imposed regulations and ethics/codes of conduct.

b. Action: Decisions and policies for self-imposed ethics made freely and/or under external pressure/guidance. Adopting code of conduct.

c. Verification: Codes of conduct regulations. Strategy documents. Action plans. Public law regulations. Public statements.

d. Appraisal: Acceptance. Legitimacy.

Source Malloy, T. H. (2021). Introduction. In T. H. Malloy & L. Salat (Eds.), Non-Territorial Autonomy and Decentralization (pp. 3–22). Routledge.

10.3.5 Self-Adjudication

The final indicator is one that may allow ethno-cultural groups a fairly strong degree of autonomy. NTA in terms of self-adjudication of settlement of internal conflicts, using internal crisis management based on independent mechanisms and procedures means having the freedom to stand outside the official, recognized state system of adjudication. This is a right that is afforded very few ethno-cultural minorities around the world, unlike indigenous groups, who also benefit from international support through the 2007 United Nations Declaration on the Rights of Indigenous Peoples. In a few cases, religious groups have been granted limited rights to adjudicate within the group on matters related to family law. For instance, as S. Bates has reported, in the UK the Divorce (Religious Marriages) Act 2002 allows Jewish spouses to negotiate before a Jewish community (religious) court before getting the divorce recognized by and English law court. Basically, where a husband or wife is refusing either to give instructions for the writing of a ‘Get’ (the divorce agreement) or refusing to accept it, the 2002 Act enables one of the parties to apply for an order to delay the making of the official divorce decree absolute obtained in the civil proceedings, until the other party has co-operated. The English court has a discretion whether to make the order and will only make it if it is satisfied that in all the circumstances of the case (2002). With regard to legal pluralism systems, Brian Tamanaha has described how it is occasionally accepted regarding certain matters such as family law (2008). According to Topidi (2021) and Levente Salat and Sergiu Miscoiu (2021), some ethno-cultural groups enjoy a mixed model whereby they may self-adjudicate within the group while adhering to the legal rules of mainstream society, such as for instance human rights. Usually, mixed models require that the decisions of internal tribunals are subsequently approved by public law officials or courts. In that case, the level of autonomy is restricted and less empowered.

Technically, the verification of self-adjudication is qualitative, and the method is descriptive with reference to empirical data on common law policies within the group, codes of conduct as well as procedural regulations adopted by the group. It is also necessary to verify the jurisdiction of public law over the NTA self-adjudicating bodies. Key aspects to the appraisal of the degree of autonomy are the legitimacy of the adjudicative mechanisms, their internal acceptance among the members of the group, and the authority of the decisions delivered. In addition, it is also important to assess the legitimacy of the mechanisms among public law instances and state officials.

Box 10.6 NTA value: Self-adjudication

a. Agency: Internal conflict settlement, crisis management and crime prevention based on independent mechanisms and procedures.

b. Action: Competences of public management areas. Structures of authority: councils, courts, tribunals. Enforcement.

c. Verification: Common law descriptions. Codes of conduct regulations. Procedural regulations. Records of third-party research.

d. Appraisal: Authority. Legitimacy. Acceptance.

Source Malloy, T. H. (2021). Introduction. In T. H. Malloy & L. Salat (Eds.), Non-Territorial Autonomy and Decentralization (pp. 3–22). Routledge.