The Politics of NTA

Abstract

The chapter deals with the political context of NTA arrangements, with focus on the actors involved in such arrangements, the conditions the actors have to meet, the political decisions they need to make, the legal and institutional consequences of those decisions, and, finally, the social and political costs of the arrangements and the criteria of success. Given that NTA arrangements are manifold, the issued addressed in the chapter are detailed with regard to each sub-type or form of manifestation. The approach is mainly descriptive and empirical, but since there are gaps between the ideal type and examples of practical implementation, normative considerations/recommendations are also part of the argument outlined by the chapter.

In this chapter, the political context of NTA arrangements will be discussed, with focus on the actors involved in such arrangements, the conditions the actors have to meet, the political decisions they need to make, the legal and institutional consequences of those decisions, and, finally, the social and political costs of the arrangements and the criteria of success. Given that NTA arrangements are manifold, some of the issued addressed will be detailed with regard to each sub-type or form of manifestation. The approach will be mainly descriptive and empirical, but since there are gaps between the ideal type and examples of practical implementation, normative considerations/recommendations will be necessary, too, at least in certain regards.

6.1 What Brings About NTA Arrangements?

NTA arrangements are the result of political processes, the outcome of power dynamics between dominant and non-dominant groups. Behind every instance of the NTA phenomenon, there is a history of minority activism and claim-making, on the one hand, and political decisions made in the name of the State, on the other hand. Since dominant groups are regularly titular communities within states, such groups consider that the state is their exclusive property. Accordingly, they hold that the state’s structure, its institutions, and resources should serve the interest of the dominant group. This creed triggers public services and policies which fail to consider the needs and expectations of non-dominant groups (if such groups exist within the state’s borders). The response of the non-dominant groups can be mobilization, activism, and claim-making, targeting changes in the structure of the state, or in the ways public services are provided, depending on the size, pattern of settlement, and potential for agency of the community.

The political processes unleashed by the sequence of majority state- and nation-building, minority claim-making and State-responses to the non-dominant groups’ political activism are not always peaceful: conflicts may occur, and violence may be deployed by the parties. In such circumstances, actors representing the State are forced to take into consideration minority claim-making in order to mitigate or prevent conflict. State authorities may decide, however, to adapt their state- and nation-building strategies to the ethnodemographic realities of the population without minority mobilization, too, which brings about, among other forms of accommodation, NTA arrangements in a peaceful manner. Solutions emerging from State-initiatives may not always serve the interest of the targeted non-dominant groups: in situations of this kind the interests of the State may prevail and façade NTA arrangements may result.

We will concentrate in what follows on considerations which might prove useful in understanding the circumstances that bring about, with the means of conventional politics, NTA arrangements. A deeper insight into the world of the actors, their nature, interests, and objectives will be the first target.

6.2 The Actors

Though NTA arrangements are the outcome of power dynamics between dominant and non-dominant identity groups within states, the actors among whom the power-sharing occurs are, formally speaking, the State and a sub-State unit constituted according to the personality principle. The first questions which need to be answered are, thus, the following: what are ‘states’ and how do sub-State units come into being?

6.2.1 The State

States are commonly assumed to be self-evident, perennial realities which do not need justification. Given the importance states play in the life of individuals and human communities, by providing safety and stability, this is a justified belief, sustainable especially in a cross-sectional, short time perspective. Judging on the longue durée, however, the history of states is more volatile (for a visual illustration, see Centennia Historical Atlas, 2020), the number of states existing in the world changing constantly.¹ Beyond the risk of break-up to which failed or weak-performing countries are exposed, states, even the well-established ones, are never “finished and complete” (Linklater, 1998, p. 187) in the sense that structural reforms may prove necessary in certain circumstances and the narrative justification of the arrangement needs to be renewed from time to time, regularly in the form of providing updated answer to the question “Who are we?” (Huntington, 2004).

Taking all these into consideration, a better understanding of the nature of the State can be achieved if we explore in more depth the relationship between the State-concept, on the one hand, and adjacent terms like people, nation, and the society, on the other hand. The first thing to be observed is the fact that there are real and constructed, passive and active components within the realities to which the four terms refer.

To start with the real-constructed division, it is only the society which has real, objective existence, in the sense of individuals sharing a common space of living, governed by rules and traditions within a certain territory. As far as the concepts of the ‘people’ and the ‘nation’ are concerned, these two are “imagined communities”(Anderson, 1983), the answers to the questions who are the ‘people’, who belongs to the ‘nation’, and what is the relation between the two being provided by prevailing narratives. Both terms are loaded with heavy political connotations: their content changes in time and even within a certain timeframe there are disagreements among those included in the concepts regarding who should be given citizenship, what does the people want, and which are the criteria of belonging to the nation.

As far as the passive–active division is concerned, it is interesting to observe that neither the ‘society’, nor the ‘people’ and the ‘nation’ speak or decide for and by themselves, political elites are the ones who do so. In fact, there are competing attempts to define the ‘people’ and the ‘nation’, the ruling elite being selected by the society based on the most appealing narrative (In real settings, this “competition” has often been decided in bloody civil wars. Different forms of coercion have been deployed in peaceful times and places, too, as explained, among others, in Mann [1986, 1993] and Tilly [1992]). The choice is never made once and forever: the prevailing narrative may be challenged any time, it is the task of the elite to safeguard the relevance by operating in due time the necessary changes.

Bearing all these in mind, it is not difficult to observe that the State is in fact the target—and possible outcome—of a political project, a claim and a promise made by a political elite, forwarded in the name of the society, using the imagined ‘people’ and ‘nation’ to provide for the legitimacy of the arrangement, according to the narrative. In a historical perspective, it is not difficult or impossible to identify the political projects which led to the emergence of most contemporary states, and there are, as we know, political projects targeting the establishment of new states—Quebec, Scotland, Catalunya, etc.—which have proven unsuccessful so far.

When the target is reached, the State becomes the most powerful active actor of the setting, providing political care, through public policies and resource allocation, to the passive components of the arrangement: the society, the people, and the nation. Once, this phase is achieved, the task of the political elites is not over, since the narrative providing justification for the arrangements has to be cherished, kept at bay from subversive challenges. In this reading, revolutions occurring in the history of various states are attempts to replace the dominant narrative with one which is more suitable to reflect the society’s changed realities. Successful revolutions trigger regularly elite changes as well. Other forms of subversive challenges may result from factions within the ruling elite. Figure 6.1 offers a visual summary of the above.

Fig. 6.1

(Source Salat, 2021)

The concept of the -state

According to most narratives providing justification for the existence of states, the main beneficiaries of the arrangement are the society, the people, and the nation: the State is there for them, and not vice versa. Yet, once established, the State becomes self-interested and its legitimacy cannot be contested, regardless of the performance of the political elites speaking on its behalf. This is particularly true in the era of the nation-states when states are commonly considered to be the in the ownership of the titular nation, fact beyond scrutiny according to the dominant narrative.

6.2.2 Sub-State Actors

Contemporary states are predominantly nation-states, representing the latest phase of development in the long history of political communities. Political communities are cooperative human settings within which stability is provided due to the monopoly of power, exercised, as it is commonly assumed, with the consent of the ruled.² The power-monopoly meant not only centralized decision-making but generalized support for a dominant way of life, religion, culture, language, and identity, provided by the means of codified norms and allocated resources. Political communities evolved from tribes, city-states, empires into modern nation-states, many disappearing without traces, others leaving lasting imprints on the way of life and identity of human communities known today.

One of the legacies of the political communities’ long history can be identified in what Sally Falk Moore (1973) called “semi-autonomous social fields”: social entities with the capacity to make rules and induce compliance, embedded in a larger world dominated by formal legal institutions. The boundaries of the semi-autonomous social fields are processual, rather than territorial: compliance becomes possible due to personal decisions of the individuals to live and be judged according to the rules of the community.

No reliable data is available regarding the possible number of semi-autonomous social fields existing currently in the world. It is not without grounds, however, to assume that the 10,000 cultures mentioned in a UNESCO account (Our Creative Diversity, 1995), or the 7151 languages inventoried with scientific rigour by the Ethnologue project (Eberhard et al., 2022) may be remnants of political communities which have regulated the life of human communities for a certain period of time back in history. These two numbers indicate categories of cultures and languages, not being illustrative thus to the number of communities speaking the different languages or choosing to self-identify as practitioners of distinctive cultures. A more suggestive number in this sense could be the 5000 ‘ethnic groups’ referred to in a UNDP report (Human Development Report 2004).

10,000 cultures, over 7000 living languages, 5000 ethnic groups in less than 200 states are illustrative, without doubt, of the broad challenge ethno-cultural diversity poses to state authorities. These numbers are misleading; however, if we are interested in the political relevance of the various aspects of diversity: in terms of linguistic diversity, for instance, from the 7151 languages documented by Ethnologue, in the case of 1000 the number of speakers falls somewhere between 100 and 1000 individuals, and another 2000 are spoken currently by 1000–10,000 persons.

There are several datasets available to date aiming to provide more accurate data regarding the political consequences of diversity. One of these is the “Ethnic Power Relations (EPR) Core Dataset 2021” (Vogt et al., 2015), which identifies 800 politically relevant ethnic groups, dominant and non-dominant, documenting their access to state power in each country of the world from 1946 to 2021, coding the degree to which the groups’ representatives situate on a scale of holding executive level state power from total control of the government to overt political discrimination. A more elaborate version of the research is available on the GROW^up platform (Girardin et al., 2015) which, in addition to the visual representation of the time-series data, includes narrative descriptions, too, of the investigated 800 ethnic groups’ situation and context (for illustration, see Box 6.1).

Box 6.1: Ethnicity in Ethiopia Ethiopia is an ethnically heterogeneous country, with some 70 to 80 different ethnic groups living within its borders. However, the majority of people belong to four groups: the Oromo, the Amhara, the Tigry and the Somali. The Oromo (also called Galla) are the largest group and constitute about 35% of the population. They were once concentrated in the southern highlands but have now spread to other regions. The Oromo category is not unified politically and there are important differences in the social organization, religion, and economy across the subgroups. The Amhara live in the western highlands and constitute approximately 30% of the population. Along with the Tigry, they trace their ancestry to a merging of Semitic and African peoples in the region several thousand years ago. The Amhara culture later became the center of the Aksum Kingdom and dominant in the 19th and part of the twentieth centuries. The Tigry count about 2 million people (the majority of this group is located in Eritrea, where they make up to 50% of the population). The fourth largest group are the Somali settling in the southeast of the country. The majority of the Somali population belongs to the Ogaden clan (subdivision of the Darod). Amhara and Tigry are overwhelmingly Ethiopian Orthodox Christians, while the Somali are predominantly Muslim and the Oromos are equally made up of Muslims and Christians Source Giradin et al. (2015)

Another comparable source, focusing on religious communities, is the “Religion and State – Minorities (RASM)” dataset, part of the Religion and State project, which provides data on the religious discrimination of 771 minorities in 183 countries, representing at least 0.2% of the populations they belong to, using data collected on yearly bases from 1990 to 2014. An overlap between the 800 groups included in the EPR dataset and the 771 communities monitored by the RASM data exists evidently, but it is not significant. The broad picture which emerges from these two datasets suggests that in many states of the world the fight of national groups for the State, or for power in the State, is still a fact.

Building on the above, we can conclude that the number of ‘semi-autonomous social fields’ existing currently in the world could be somewhere between 800 and 10,000. Judging based on the data available in the GROW^up platform, their situation in relation to the state can be very different, from partners in power-sharing arrangements to being subjected to active, intentional, and targeted discrimination, with the intent of excluding them from both regional and national power.

Returning to the model of the State suggested in the previous subchapter, it is not difficult to identify the sequence of options which could lead to these two complementary outcomes. If the ‘society’ contains ‘semi-autonomous social fields’, the political project targeting the State—both in the sense of its establishment or maintenance³—has two options: either ignores them or includes the political actors speaking in the name of the semi-autonomous social fields in the design of the political project.

In the first case, the narrative providing justification for the arrangement will be based on wishful thinking and if the political project is successful, the State will be obliged to provide homogenizing political care, or to rush into various forms of ethnic cleansing, which regularly triggers instability, autocratic forms of governance or even civil war, depending on the size, potential for agency and level of political mobilization of the semi-autonomous social filed(s). For illustration, see Fig. 6.2.

Fig. 6.2

The concept of the centralized nation-state (based on: Salat, 2021)

A sub-state actor comes into being when the second scenario is deployed and an officially recognized semi-autonomous social field ends up exercising, through its representatives, a certain type of control over a part of the State’s structural components and resources. For illustration, see Fig. 6.3.

Fig. 6.3

The concept of the state with shared authority structures (based on: Salat, 2021)

It is important to not, however, that sub-state entities do not target in all cases the protection of non-dominant ethno-cultural groups: they can emerge as the outcome of the general organization of the state as well (Suksi, 2011). State-design of this kind, resulting in arrangements in which two or more authorities have “either limited or relative, differential or functional sovereignty over certain areas, groups or resources” (Lapidoth, 1997, p. 46) may occur simultaneously with the establishment of the State, or later in the course of the state’s history, when adapting the structure of the State to previously ignored realities is considered necessary by the ruling elites. Moments in which similar decision are made are often preceded by violence or protracted conflict, but economic considerations or international pressure may also play a role (Lapidoth, 1997).

The probability of redesigning existing states in order to bring about divided or shared authority structures seems neglectable only if we think about states as perennial, self-evident political units which do not need justification. If we consider states as being the outcome of elites-backed political projects, it is easy to observe that the form in which the state is defined is neither an objective necessity, nor the only way it can be conceived. It depends on political will and appropriate decisions taken by the involved actors to achieve the format serving everybody’s interest. Among the many variants of dividing and sharing the authority of the state, the type of arrangement suiting best the given situation depends on particularities of both, dominant and non-dominant groups.

6.3 The Establishment of NTA Arrangements

Theoretically speaking, an NTA arrangement may come into being at any time in the history of a State: while TA is often the outcome of protracted conflict, NTA arrangements may result from political bargaining, legislative processes, or institution-building. Since there is no binding provision in international law from which NTA could follow,⁴ the arrangements emerge in domestic politics from claim-making and pressure exercised by representatives of non-dominant communities and are the outcome of lengthy processes of negotiation, rather than judicial remedies. Canada provides a rare counterexample with regard to the functional autonomy of the Francophone minority communities (FMCs) outside Québec, known as “institutional completeness”, emerged largely due to a series of favourable decisions of courts: “While the government of Canada has been timid in recognizing institutional completeness for FMCs, the courts have been more innovative, defining the right to NTA through various judgements” (Chouinard, 2013, p. 233).

State authorities may decide on their own, without being challenged by targeted claim-making, to implement variants of NTA, when they try to prevent the escalation of minority mobilization, or to provide proof of decent treatment of non-dominant groups. When agreement is reached between the negotiating actors and/or the political will on behalf of the State’s representatives exists, the envisaged form of accommodation has to be ratified in law, which requires institutional design: choosing from the multitude of variants and procedural details, according to the particularities of the given situation.

6.3.1 Preconditions

NTA arrangements are suitable in asymmetrical settings where the dominant position of the titular nationality in the state is beyond doubt and uncontested, yet there is at least one non-dominant minority group within the frameworks of the population distinguishable from the majority based on strong identity markers like language, religion, way of life, etc., voicing interest in identity maintenance. The non-dominant group should be a ‘semi-autonomous social field’, i.e. should possess institutionalized traditions enabling the community to make rules and induce compliance. The non-dominant group should have clear potential for collective agency and an internal structure of authority capable of deliberating, evaluating, and choosing a course of action. This is particularly important in order to avoid top-down, symbolic NTA arrangements which may occur in situations when “the government behaves as if ethnic groups were able to self-organize, govern and represent themselves and thus need respective normative and institutional frameworks” (Osipov, 2013, p. 134).

The pattern of settlement of the non-dominant group within the State’s population should be scattered and discontinuous, excluding TA as a possible form of accommodation. Where TA is perceived as a potential threat to the State’s territorial integrity, the interest in NTA could be enhanced.

The size of the non-dominant group should be appropriate: large enough in order to secure that the institutions created within the arrangement prove operational and justified, and not too big, so that the chances of electing a single representative body—if cultural autonomy is the target—are not undermined by internal divisions. More numerous communities with complex social structure, incapable of consensus regarding the establishment of cultural autonomy, may become beneficiaries of functional autonomy, with limited self-government exercised in the various boards supervising the different fields of activity, like education, health care, mass media, etc.

Appropriate level of political mobilization and legitimate structure of authority within the non-dominant group are important preconditions of effective negotiations. Patronage and overwhelming support on behalf of the kinstate could yield the minority uninterested in NTA or undermine the chances of being accepted by the majority as partner in negotiations targeting power-sharing schemes.

6.3.2 Decisions

The establishment of an NTA arrangement requires decisions on the side of the State’s authorities, on the one hand, and the non-dominant group, on the other hand. It is important to recall at this point that political elites are speaking both in the name of the State and the minority group, respectively, who need to secure the approval of their constituencies for what they agree and how they perform in the course of the negotiations (interesting accounts on the complexities of the negotiations from which the Estonian Law on Cultural Autonomy emerged in 1925 are Alenius [2007] and Housden [2004]). The choices, preferences for details of the institutional design may reflect not only perceived constraints, but the performance and limitations of the participating elites, too. As States dominated by nationalist elites driven by suspicion and fear rooted in experiences of the recent history may prove difficult partners in negotiations, self-interested elites can also capture the will of the non-dominant communities, raise the stakes in the negotiation artificially and produce counterproductive outcomes for the non-dominant group.

6.3.2.1 The State

On the side of the State, the most important decision is to secure the political will underpinning the future arrangement, i.e. to achieve commitment on behalf of the political elites speaking in the name of the State to undertake actions in order to delegate public authority, powers, and tasks to an entity that represents the non-dominant group(s). From this commitment follows the official recognition of the non-dominant group(s), a crucial element of any NTA arrangement which opens the way for one or more ‘semi-autonomous social fields’ to become sub-state actor(s) with legal status. The list of non-dominant ethnic or religious groups officially recognized by states may not include all possible candidates, the respective decisions regularly reflect historical or political considerations.

If there are no appropriate provisions included in the Constitution, the commitment to formally ratify a power-sharing arrangement may require amending the constitution, to prevent future attacks. If the right to autonomy is provided by the Constitution, the authorities of the State must decide the scope and depth of the future arrangement which will become part of the State’s system of government, grounded in the existing legal order.

The consequences of the decisions made in this phase are far-reaching: the State has to accept that the arrangement will subject part of the population to the decisions made by a sub-state authority, which equals with undertaking that the State will not impose its own regulations on the respective segment of population in the fields covered by the delegated competences. In spite of this self-limitation, the State remains responsible as far as the individual human rights of the non-dominant community’s members are concerned.

6.3.2.2 The Non-Dominant Group(s)

If there is just one non-dominant group interested in NTA, the political elite speaking in the name of the community has the difficult task to foster intra-community consensus regarding two basic questions: the type of NTA, on the one hand, and the form of legal entrenchment, on the other hand. As far as the type of the arrangement is concerned, the choice from the available options—cultural, personal, functional, or administrative autonomy—should be grounded in the particularities of the minority: size, ethnodemographic characteristics, available institutions, intensity of political mobilization, level of political culture fostering consensus-building, etc.

Opting for cultural autonomy means engagement to voluntarily register for membership, elect one single representative body, the Cultural Council, accept it as the highest decision-making authority and undertake to submit to its binding decision within the spheres of competence, including, perhaps, taxation. Achieving all these requires a cohesive group capable of consensus-building, committed to take extra burden and actively participate in community governance in the fields of culture and education.⁵

In the case of larger, internally divided communities, if reaching agreement with regard to the details pertaining to the establishment and functioning of cultural autonomy proves difficult, functional autonomy could be the suitable alternative. The linguistic and cultural layering of certain public functions in education, public administration, health care, jurisprudence, or mass media may provide access to adequate public services, with a fair level of minority control exercised in the relevant boards or the respective institutions, without the need of accepting the authority of one centralized representative body. Arrangements of this kind display, however, the failure of minority elites to reach consensus within the community and the adopted solutions may be the result of unilateral State initiative, without agreement reached in negotiations, yet not independent of minority claim-making (the resulting arrangement may not even be called ‘autonomy’, as in the case of Romania, where a rich network of functional autonomies exist in education, culture, public administration, and religion, while the public discourse labels all forms of autonomy incompatible with the Romanian State (Salat, 2014). If functional autonomies are present in more fields of activity simultaneously, administrative autonomy might be in place, according to the definitions provided in Chapter 1.

As far as legal entrenchment is concerned, elites speaking in the name of a certain non-dominant group may opt for cultural self-government exercised under public or private law. Though the use of private law entities for the provision of public services is considered generally an option with low effectiveness, the size and needs of particular communities may justify this choice and the implemented solutions might prove appropriate (for example, the NTA arrangements in the Danish–German border-region [Malloy, 2015]).

If more non-dominant groups are present and express interest in some form of NTA, the first task is to build a coalition of the elites speaking in the name of the respective minorities and reach agreement regarding the targeted outcome. Since the attributes of non-dominant groups within a society are regularly different, consensus among the minorities’ representatives is difficult to reach and the lack of agreement can undermine the chances of establishing an NTA regime. In Latvia, for instance, the chance of adopting a law on cultural autonomy in the 1920s was undermined by the fact the several autonomy drafts were submitted to the Latvian Parliament, the Saeima, by the Jewish, German, and Polish minorities: “The discord among the minorities, and their inability to present a united front undermined the whole idea of cultural autonomy in the eyes of the majority, and weakened the minorities’ position” (Germane, 2013, p. 114).

One non-dominant group may try to take the lead and speak in the name of all, though the task of achieving an arrangement endorsed by the other minorities is not an easy undertaking either. In Romania, a draft law including a scheme of cultural autonomy was submitted to the Parliament in 2005 by the representatives of the largest non-dominant group, the Hungarian minority. In addition to the fact that the attempt provided an example of failure to reach agreement within the minority community itself, the proposal was not endorsed by the other 18 minorities represented by one MP each in the lower chamber of the Romanian Parliament, which reduced the chance of adoption even more (Székely, 2020).

6.3.2.3 Joint Decisions

When political will on behalf of State authorities and commitment of the representing elites are in place, on the one hand, and the elites speaking in the name of the officially recognized non-dominant group(s) are in the possession of their mandate to negotiate, on the other hand, negotiations may start in order to decide the details of the institutional design.⁶ The negotiations would have different paths according to the targeted autonomy scheme.

If cultural autonomy is at stake, the parties need to agree with regard to issues of membership, mechanisms of participation, institutional forms, powers, funding, and adjudication in case of conflict. If personal autonomy is the target, the type and number of private entities entrusted with public service delivery has to be agreed, areas of competences, operational licenses, quality assurance, recognition of qualifications, etc. Reaching agreement with regard to functional autonomy requires relatively little effort, the institutions exercising state functions being already in place. In this case, the fields of activities need to be settled within which the linguistic/cultural layering of the service provision will be accomplished, and the principles of staffing and self-management have to be outlined.

6.3.2.3.1 Institutional Design of Cultural Autonomies

From membership in cultural autonomies follows the right of individuals to ethnic self-identification upon voting age and the establishment of special minority registers containing personal data of individuals who declare membership in a national minority (children could be included at the request of the parents). Registration in such a minority list should be voluntary and would equal with the unconstrained declaration of the wish to participate in the collective efforts aiming to maintain the culture, language, religion, and common identity of the minority. The public authority handed over by the State to the institutions of the cultural autonomy can be exercised only over those individuals who have voluntarily opted for registered membership. The possibility of withdrawal from the declared membership, with clearly stipulated procedural details, should exist.

With regard to the minority registers, the negotiating parties must agree first of all whether the minority lists will be administered by state authorities or the cultural autonomy body itself. Subsequently, consent is required on the procedures of establishment of the nationality list; the personal data items it will contain; if the circle of potential members who can apply for registration is restricted to citizens of the state or not; if decisions regarding who belongs to the respective identity group will be made based on self-identification or with the help of certain objective criteria; who will decide if objective criteria are used in the determination of membership; rules of accessing data included in the minority lists, procedures of maintenance, etc. Based on the minority lists produced by the various non-dominant communities, authorities of the State could decide whether a minority qualifies or not for the establishment of a cultural autonomy, depending on the number of individuals included in the minority register compared to census data. Agreements are necessary with regard to the thresholds of legitimacy, both in terms of the minority registers and participation in elections, below which the arrangement will be terminated.

For minorities eligible to apply for cultural autonomy, direct and uniform elections must be organized in order to establish the Cultural Council (with roles similar to the parliament), the core institution of minority self-governance which will be recognized as a legal person under public law. Decisions in this respect must include, among others, the number of members in the Cultural Council (depending on the size of the minority), duration of the mandate, filing candidates, rules pertaining to the separate voting rolls for each non-dominant group, details of the electoral system, timing, quorum, etc. The possibility to choose from alternatives, securing genuine electoral competitions among organizations filing candidates and carefully chosen details of the electoral system are crucial ingredients of the perceived legitimacy of the arrangements. Given the importance of separate jurisdictions created for the purposes of internal elections to autonomy structures of the minorities, the rules for the elections of cultural councils should be approved by State authorities.

In terms of powers, agreements are necessary regarding the institutional structure of the cultural autonomy, first of all. If the elected Cultural Council will function as the chief decision-making body, i.e. it will serve as the legislative branch of the cultural autonomy, agreement must be reached concerning the size, structure, and nomination procedure of the executive branch (the Cultural Government) of the minority self-governance. The activities carried out by the Cultural Council as part of the official state apparatus will include, besides the delegated competences, the coordination, and supervision of the autonomy’s executive branch. For this task, a Cultural Curatoria may be created, with decentralized structures in charge of supervising the activities of the Cultural Government in the territory and managing the minority registers in the respective areas. The location of the cultural autonomy institutions and the way those are subordinated to the central state institutions should also be agreed upon. For illustration, see Box 6.2.

Box 6.2: The Estonian Law on Cultural Self-Government of Minorities (Excerpts) State Gazette No. 31/32 Saturday, February 21, 1925 (…) § 2. The scope of authority of cultural self-government institutions of minorities includes: a. organization, management and supervision of public and private educational institutions operating in the respective minority’s mother tongue; b. taking care of other cultural tasks of the respective minority and managing the institutions and companies established for this purpose § 3. The cultural self-government of the minorities has the right to issue coercive decrees to its members in the areas referred to in § 2. (…) § 4. The network of minority public schools is developed by the respective county or city and the respective minority cultural self-government by agreement, and approved by the Government of the Republic at the proposal of the Minister of Education. (…) § 5. The organs of cultural self-government of minorities are the cultural council and government of the respective nationality. Their location is the capital of the republic In order to solve and organize local issues, the culture council of the respective nationality may establish cultural curatoria, whose area of activity is the county together with the cities. With the approval of the Government of the Republic, a joint cultural curatorium can be established for several counties § 6. The financial basis of cultural self-government institutions of minorities is: a. costs and obligations assumed by the state in relation to public primary and secondary schools according to the law; b. expenditures of local governments and other obligations related to the supervision of public secondary and primary schools, to the extent imposed upon them by law; c. state and local governments’ subsidies for carrying out cultural tasks; d. public taxes from the members of the respective minorities, imposed on them by the cultural council, as provided for in the budget plan approved by the Minister of Finance and Education within the Government of the Republic; e. gifts, collections, donations, endowments and income from the properties or businesses of the self-government. (…) Source http://sipsik.world.coocan.jp/seadus/kult1925.html (Own translation—LS)

The jurisdiction of cultural autonomy arrangements regularly encompasses the territory of the whole state—exceptions in this regard are NTA arrangements targeting the Sami with provisions limited to territories traditionally inhabited by the members of the respective communities—the delegated competences of public authority being exercised over the registered members, without regard to residence. The delegated competences are exercised in the form of biding decisions on individual matters pertaining to the areas of public service handed over to the cultural autonomy. Belonging to a cultural autonomy does not exempt the members from the general civic duties.

The direct powers of the cultural councils settled in the negotiations should include, among others, adopting and amending the cultural autonomy statute, the establishment, coordination, and supervision of educational, cultural and broadcasting institutions (both public and private), the transfer of existing institutions under the jurisdiction of the cultural council (both in the sense of exercising control over the previously existing public institutions, and transferring to the public sector existing private schools), adopting the budget, holding and managing property, to initiate the adoption and participate in the elaboration of laws and regulations in the fields of culture, education, information, official use of language and script, as well as to monitor the implementation of such regulations. The cultural council should have the task to represent the minority in its relations with the State.

An interesting chapter of competences associated with cultural autonomy is the possibility of conducting cross-border and international affairs. If the results of the negotiations include such powers, the cultural council may establish contact and cooperate with kinstate, regional and international organizations, or similar bodies of national minorities in other countries. In similar cases, the cultural self-government of the minority may participate in negotiations targeting bilateral agreements with kinstates, may be consulted with regard to the conclusion of international agreements affecting the status of national minorities, or participate in supervising bilateral inter-governmental treaties in the area of minority protection. For illustration, see Box 6.3.

Box 6.3: Law on National Councils of National Minorities (Excerpts) Official Herald of the Republic of Serbia, Nos. 72/2009, 20/2014—decision of the Constitutional Court, 55/2014 and 47/2018 (…) Art. 1a. A National Council is an organization that entrusted by law with certain public powers to participate in decision-making or to decide independently on certain issues in the field of culture, education, information and official use of languages and scripts in order to achieve the collective rights of a national minority in self-government in these areas. The members of a national minority can only elect one National Council Art. 2. Members of national minorities in the Republic of Serbia shall have the right to elect their National Councils with a view to exercising the right on self-government regarding culture, education, dissemination of information and official use of language and script A national minority shall be represented by its National Council in the field of education, culture, informing in the language of a national minority as well as in the official use of language and script, and it shall participate in the decision making process or decide on the questions related to these fields A National Council may establish institutions, companies and other organizations in the fields referred to in paragraph 2 of this Article, in accordance with special laws. (…) Art. 25. The National Council may submit to ministries and special organizations proposals, initiatives and opinions on issues related to the exercise of the powers envisaged by this law Before considering and deciding about the issues in the field referred to in Article 2 of this Law, the bodies in paragraph 1 of this Article shall seek the National Councils’ opinion The National Council may launch an initiative with the Government for the abrogation and/or nullification of regulations issued by ministries and separate organisations that are not in compliance with the provisions of this Law and other laws and regulations pertaining to national minorities. (…) Art. 27. The National Council shall cooperate, in accordance with law, with international and regional organisations dealing with the rights of persons belonging to national minorities, the country’s organisations and institutions, as well as with the national councils or similar national minorities’ bodies in other countries. (…) The National Council representatives shall participate in negotiations or be consulted as part of negotiations the aim of which is the conclusion of bilateral agreements with home countries, especially when national minority rights are discussed Representatives of the National Councils shall participate in the work of mixed inter-governmental bodies whose aim is supervision of the implementation of bilateral inter-governmental agreements on the protection of a specific national minority’s rights Art. 28. Representatives of national minorities, via the Council for National Minorities of the Republic of Serbia, shall take part in the conclusion of and/or accession to international agreements regarding the status of national minorities and preservation of their rights Source www.paragraf.rs

Funding is a delicate and important part of the agreement which needs to be reached. Though cultural autonomy bodies should be entitled, theoretically, to levy taxes on members in order to secure the financial bases of the provided services, the costs of the arrangement are regularly much higher and necessitate subsidies from the regular state and local budget. Double taxation of members of cultural autonomy arrangements remains, however, an important matter of principle which can be implemented in the form of annual membership fees. Cultural councils may also receive private and corporate donations.

The institutional design of cultural autonomies should include mechanisms or policies for resolving conflicts, too. Members of the cultural autonomy, as well as institutional components should be granted the possibility to contest the violation of the autonomy arrangement or the non-application of the provisions of the autonomy statute before the competent body of the State’s judicial system. Members should also have the right to seek legal remedy in cases of abusive application of the autonomy statute’s provisions, or in cases of perceived human rights abuses resulting from decisions of the Cultural Council. Institutionalized ways of renegotiating the autonomy arrangement need to be available as well, should ethnodemographic or other kind of changes make it necessary. Conditions and procedures of liquidating the arrangement should be stipulated as well.

6.3.2.3.2 Particularities of Personal and Functional Autonomy

In the case of personal autonomy, public powers are delegated to a private entity, regularly associations registered as legal persons under private law, established by non-dominant groups. Though rarely mentioned in the NTA literature, in cases when religion is a distinctive feature of non-dominant group identity, recognized churches operating as legal persons registered under private law are eloquent examples of personal autonomy institutions. The history of the religious traditions and associated institutions may go beyond the history of the respective State, and thus, the establishment cannot be seen as the outcome of negotiations between the dominant majority and a non-dominant group, yet the official recognition of the respective church and the inclusion in the sphere of churches eligible for state subsidies may clearly be seen as such an outcome.

While the freedom of association is a constitutional right in most cases, generally available for minority groups interested in creating platforms suitable for nurturing group identity, furnishing with public powers such and entity is less self-evident, since it equals with making the private entity part of the State’s public administration. It happens most often in the field of education: private schools created and operated by non-dominant communities may hold recognition as fulfilling public school requirements. As Suksi observes, international law is reinforcing in this regard: “a minority does not generally have the right to claim a certain official position for the governance of a matter, except within the area of education, where it is well-established under public international law that a minority population would have the right to set up its own private schools, under certain conditions established under the 1960 UNESCO Convention against Discrimination in Education and in a number of other international instruments adopted after that” (Suksi, 2015, p. 87). In similar cases, negotiations targeting the institutional design of personal autonomy should deliver agreements regarding operating licenses granted under the existing educational legislation, access to funding from state budget and formal recognition of the diplomas. The resulting minority empowerment may trigger autonomy in school management, staffing, and curricular design.

Complementary to the field of education, minority backed private entities may carry out activities in other areas of interest for non-dominant groups like culture (theatres, libraries, museums, festivals, etc.), mass media (printed and broadcasting), social services (counselling, medical care, maternity services, assistance for elderly, etc.), economic sector (agricultural organizations, financial establishments, tourism, etc.), youth and sport clubs, etc. (Malloy, 2015). Majority–minority negotiations leading to such arrangements should facilitate the adoption of legislative acts providing for the formalization of the minority institutions in the respective areas, including the conditions under which accessing public funds becomes possible. Instances of the kind may provide examples of considerable self-empowerment and self-management, yet depend largely on minority activism.

Functional autonomy implies facilitating for members of non-dominant groups to be in charge of managing certain public functions in accordance with state law. The most frequent institutional setting for similar arrangements is the linguistic layering of public institutions, i.e. organizing regular administrative agencies along separate linguistic lines, the provided public functions/services being accessible, due to adequate staffing, both in the majority and minority language, within one common institution. Frequent examples are provided by bilingual schools and municipalities, but other areas of public services may also be organized, too, in accordance with the principle. The autonomy requirement is fulfilled if consultative bodies representing the non-dominant groups have a say in appointing staff and/or delegating members in supervisory boards.

It is interesting to observe that such arrangements are not always the outcome of majority–minority negotiations: representatives of the titular groups in states often decide on their own to implement variants of functional autonomy as a response to minority claim-making. Though there are many examples present in various regions of the world, the targeted non-dominant communities are reluctant to consider them forms of genuine autonomy, and in most cases the term ‘functional autonomy’ is not used by state authorities either.

In the particular context of Canada, New Brunswick, the official bilingualism, and the administrative duality of the province has facilitated the emergence of a special kind of functional autonomy of the francophone linguistic minority, the Acadians, discussed in the literature under the label of ‘minority sub-state institutional completeness’. The tradition of elected municipal councils, school boards, and health boards made possible the gradual establishment, through court decisions and the mobilization of the minority electorate, of a network of linguistically homogeneous institutions which gives the opportunity to members of the francophone minority to “live their life in their language”. The resulting sub-state institutions are sanctioned by the state and are publicly funded. Complementary to the three main areas (local administration, education, and health care), land use planning commissions, economic development agencies, credit unions, boards supervising the activity of the police are also in place. The Université de Moncton created initially as a private institution was officially recognized as public institution based on the 1981 Equal Communities Act. These minority-controlled sub-state institutions give to the francophone minority significant autonomy in sectors critical for cultural survival (Bourgeois, 2014; Chouinard, 2013).

6.3.3 Implementation

The agreements reached in the negotiations should be ratified by law. In the case of cultural autonomy, a separate law is necessary, for personal and functional autonomy schemes amending existing laws may suffice. The adoption of a Cultural Autonomy Law may require issuing later various by-laws, meant to regulate specific aspects brought up by practice. In Estonia, for instance, complementary to the 1925 law which was intended originally as a temporary framework, subsequent by-laws were issued on the organization of the Cultural Self-government, the Nationality Register, and the Cultural Curatoria. (Aun, 1953, p. 30, fn 11).

Regardless to the type of arrangement, the resulting legislation must pay special attention to two complementary aspects: accountability and change management. When public functions are transferred to institutions created and controlled by members of a self-governing non-dominant group, empowerment has to be balanced with accountability, i.e. the issue of responsibility in case of malfunctions or mismanagement should be clearly addressed by the legislation, together with the necessary legal remedies.

Since circumstances change and the conditions on which the agreements reached in the negotiations depend can alter, the need to renegotiate certain provisions of the arrangement may occur. The legislation must include clear procedures and mechanism which make possible the renegotiations.⁷

6.4 Assessment

If negotiations which bring about NTA arrangements are difficult and laborious, operating the resulting arrangements is not easy either: it requires self-limitation and tolerance on behalf of the dominant majorities, and engagement, activism, extra burden, and hard work as far as the targeted minorities are concerned. Adequately, socialized publics and relatively high level of political culture on both sides are critical requirements, too.

Where all the above conditions are met, the implemented NTA arrangements have the potential to deepen democracy, provide effective channels of political participation, and compensate the members of non-dominant identity groups for the disadvantages which follow from public services addressing preponderantly the needs and expectations of the State’s titular majority. The compensations, if appropriate and effective, may contribute to securing circumstances for linguistic, cultural, and religious identity maintenance on medium or even long term.

However, NTA arrangements, like most man-made arrangements, are not a panacea: in real life situations the above listed conditions are rarely met, which means that in cases of implemented versions of the ideal types of NTA the potential positive outcomes are burdened by shortages and trigger significant social costs.

Assessing NTA arrangement is a difficult task for at least two reasons: (a) since the benefits of the model are strongly intermingled with social costs and drawbacks, providing separate complementary lists of advantages and disadvantages is hardly possible; (b) given that judgements concluded on the theoretical level regarding the merits and deficiencies of the ideal type are often contradicted by findings of the case studies based on empirical analysis, these two dimensions of the assessment are difficult to reconcile. The difficulties incurred by attempts to evaluate NTA will be illustrated below by focusing on three topics often addressed in the literature on NTA assessment: the limitations of non-territoriality, the agency requirement, and the pitfalls of implementation.

6.4.1 The Limitations of Non-Territoriality

NTA arrangements are often portrayed in the literature as a valid complement to the territorial organization of state power, when and where ethnodemographic realities justify it. While TA replicates the disadvantages of territorial dominance embedded in the regular organization of state power—by enhancing competition for control, creating “minorities within minorities”, justifying tacit forms of discrimination and even the expulsion of non-members—schemes of NTA de-securitizes majority–minority relations due to the workable alternative offered to TA, seen by suspicion by most state authorities faced with the challenge of deep diversity.⁸ State power assigned to culturally rather than territorially defined groups and self-government limited to cultural aspects, though challenge, in principle, the idea of the nation-state, do not require majorities to give up their dominant positions in the State, while the institutionalized forms of self-administration and access to state resources creates loyal minorities, reducing the chances of ethnic conflict. In addition to mitigating tension, states implementing NTA arrangements leave non-dominant groups bereft of the arguments that they are threatened by assimilation and their freedom is suppressed.

Indeed, NTA arrangements, suitable for small and dispersed identity groups, do not pose any threat to the sovereignty or territorial integrity of a state since the connection between self-determination and NTA is regularly weak or non-existent: non-territorial sub-state entities invested with state functions do not exercise law-making powers. Thus, the promise of offering an alternative to territorial forms of autonomy has a price, the relatively low level of public authority shared with sub-state entities with non-territorial character (Suksi, 2015). Accordingly, NTA schemes provide considerably weaker forms of minority protection than TA (Yupsanis, 2015).

Concerns are voiced in the literature with regard to the chances of de-territorializing state powers, too. While the personality principle might prove effective in creating communities of will from which officially recognized sub-state entities might emerge, the strict division between territorially defined state powers and institutions associated with NTA is often impossible or requires compromises.⁹ Survival of linguistic minorities, for instance, is hardly possible in modern, industrialized societies without territorial forms of protection (Bauböck, 2005) and some of the most successful cases of cultural autonomy are, in fact, supplementary to well-established TA arrangements (Bauböck, 2001). These practical limitations of the non-territoriality principle cast a shadow over one of the core tenets of the NTA ideology, the belief that when debate and contestation is removed from cultural matters, the effectiveness of common government is enhanced.

A further problem with the promise of non-territoriality is that it could be a disincentive for minorities which take advantage of certain settlement patterns. Less numerous minorities for which TA is inconceivable, which represent however a considerable percentage within units of public administration, might be more willing to benefit from participating in local power than becoming part of cultural autonomy institutions, especially if those are underfunded and have just symbolical powers. In addition to other reasons, the disinterest of the Russian and Swedish minorities in the provisions of the 1925 Estonian law on cultural autonomy is explained with similar arguments (Aidarov & Drechsler, 2011; Kuldkepp, 2022).

6.4.2 The Agency Requirement

One unquestionable merit of the NTA model is that it provides a clear answer to the question who is the ‘self’ in the self-governing arrangement: the community of will emerging from the minority registers, created on the basis of voluntary, individual decisions, can be seen as the outcome of procedures analogue with referendums. Thus, the moral bases of the resulting sub-state units are more consolidated compared to states which claim to be result of self-determination without any referendum. The judgement is valid partially for the case of personal and functional autonomies, too, since the private institutions or linguistic lines of public services exist until people choose to take advantage of them.

The freedom of choice is given also with regard to the degree of autonomy a non-dominant community is ready to assume: cultural autonomy, demanding more work, and responsibility are available for minorities capable and willing to take the effort; personal autonomy implies less responsibility but claims comparable amount of burden; functional autonomy is an option for more fragmented minority communities, uncapable, or unwilling to get organized. Cultural and personal autonomies require committed elites working hard on securing legitimacy and keeping the autonomy institutions functional, based on which the issue of agency could be considered satisfactorily solved.

Despite this remarkable potential, in practice, there are several technical details which become responsible for compromised outcomes of the arrangements. The minority registers, for instance, often raise questions regarding how disputes about membership will be solved, the possible answers to which blur the shining of the original idea. Does the voluntary, individual declaration of membership suffice, or some objective criteria of belonging should be taken into consideration? If the use of objective criteria is deemed necessary in order to prevent abusive registration of non-members, who should take the decision: the community or authorities of the Sate? When questions of these kinds need to be answered, solutions which do not produce unintended harmful consequences are hardly available. A ruling of the Slovenian Constitutional Court states, for instance, the following: “Everyone has the right to declare their belonging to their national or ethnic community. However, in deciding who is the beneficiary of special rights… the will of the individual is not decisive, rather legal criteria shall be established… membership in the autochthonous Italian or Hungarian ethnic community is not a matter of the will of the individual, but the autochthonous community itself” (Villiers, 2012, p. 179, fn 90).

Concerns are raised with regard to the compulsory character of self-identification: though from the perspective of the individual expressing the will to be included in the nationality register is voluntary, laws on cultural autonomy regularly stipulate that becoming subject to such an arrangement requires registration, which may harm the freedom to choose to be treated or not to be treated as member of a certain minority, without any disadvantage that might follow from this decision (Suksi, 2015).

Other negative consequences associated with the implementation of the personality principle are the lack of concern for individuals who do not wish to exercise political rights pursuant to their nationality; the reductionist view of cultural identity often limited to language; failing to address the situation of individuals who associate with more than one nationality; excluding the possibility of simultaneous membership in two or more national registers; undermining pluralism within the culturally autonomous community; prescribing/limiting the ethnic categories which may apply for cultural autonomy; rewarding ethnic mobilization to the detriment of common citizenship (Villers, 2016), or stimulating ethnobusiness (Dobos, 2013). While most of these concerns might be properly handled with careful legal design, in real world cases they often trigger, indeed, unintended consequences.

Finally, influential opinions hold that cultural autonomy schemes need to assume that ethnic minorities are coherent and cohesive social groups, with internal structure, organization, and leadership, capable and willing to cooperate in order to give life and operate cultural autonomy institutions (Aidarov & Drechsler, 2011; Kemp, 2005; Osipov, 2013). Though many non-dominant groups lack, indeed, the capacity for agency, it is counterfactual to suggest that no minority community may qualify for what cultural autonomy arrangements require.

The evident truth that not all members of a non-dominant group may be equally committed to get involved and actively participate in the institutionalized protection of their culture does not invalidate the arrangements’ moral legitimacy since nationality registers, if properly implemented, sort out this problem: in addition to the freedom of choice to become or not to become a member, the possibility of exit or withdrawal being regularly part of the arrangement. It is not less true, however, that cases are known when minority elites empowered by cultural autonomy arrangements use their positions to dominate the intra-community debates and annihilate interest differences (Korherc, 2021; Székely, 2020). It may also happen that states grant cultural autonomy rights to small and week minorities while more numerous and better organized communities are excluded from the list of potential beneficiaries of NTA arrangements (Yupsanis, 2019).

6.4.3 The Pitfalls of Implementation

Though establishing cultural autonomy bodies in order to allow for minorities to live in their cultural and linguistic world is a generous undertaking on behalf of dominant majorities, the long and arduous way from the political will to the implementation is full of temptations and pitfalls. If minority claim-making is peaceful and the conflict potential of the setting is moderate, political elites speaking in the name of the State do not have strong incentives to effectively delegate public functions to statutory associations under public law. Even though authorities of the State invest time and resources to creating institutions of cultural autonomy, dominant elites are regularly reluctant to furnish the respective bodies with more significant powers and functions, and to allocate appropriate funding, despite the fact that NTA arrangements do not incur risks for those who hold state power. As a result, the idea of cultural self-government legitimized by elections often turns out to be compromised: the arrangements run the risk of becoming vehicles of symbolism (Suksi, 2015); the limited capacities and mere consultative roles of the elected bodies discourage minority members to vote and run as candidates (Dobos, 2013); schemes seen by the dominant elites as genuine forms of national cultural autonomy turn out to be instruments of state patronage and guided control, instead of authentic models of representation and self-organization for ethnic groups (Osipov, 2013).

In addition to technical concerns regarding the limitations of non-territorial jurisdiction (Bauböck, 2005), in terms of competences commonly associated with cultural autonomy, doubts are justified whether minority-controlled subs-state institutions limited to cultural domains can guarantee substantive self-determination, and whether those powers can be effectively separated from other spheres of state jurisdiction (Kemp, 2005; Lapidoth, 1997). While personal and functional autonomy may offer partial solution to this problem (Bourgeois, 2014; Malloy, 2015), the subordination of cultural autonomies’ members to state jurisdiction in critical domains like social security, health services, welfare, etc., may undermine, indeed, the generous idea of cultural self-determination. In this regard, alleged internal contradictions of Renner’s original model are mentioned: while militating for the separation of politics and culture on the level of the state in order to prevent conflict, culture is made politically relevant in the case of cultural communities (Kemp, 2005); notwithstanding that churches, considered by Renner the most genuine institutions based on the personality principle, were made autonomous by depoliticization, the cultural autonomy model aims to make national minorities autonomous by politicizing them through granting to their representatives political authority over cultural affairs (Levey, 2005). Separating culture from state politics and establishing appropriate and effective institutions of cultural self-rule on sub-state level is, indeed, a major challenge of any NTA arrangement.

The various assessments of available examples highlight further pitfalls of well known, frequently referred to cases. A broad attempt to compare TA and NTA arrangements as possible solutions to the challenges faced by states due to the diversity of their population reached the conclusion that NTA schemes are, in fact, either residual, supplementary, or transitional arrangements, without a full potential for community empowerment¹⁰. A comparative analysis of the cultural autonomy regimes in Slovenia, Serbia, and Croatia led to the conclusion that it would be preferable to abandon the cultural autonomy idea since the arrangements implemented in the three countries are rather policies of state patronage (Yupsanis, 2019).

Concerns are raised in the literature regarding the degree and effectiveness of the minority empowerment, too. A comparative assessment of historical and contemporary cases led to the conclusion that the autonomy found in the investigated instances is either not clearly non-territorial, or the non-territorial arrangements fall short of true autonomy (Coakley, 2016). Another comparative analysis of several contemporary case studies concluded that examples of personal and functional autonomy may prove to be more effective, in certain circumstances at least, than cultural autonomies operating under public law (Salat, 2015). A further collection of cases selected from various regions of today’s world offered ground to the assumption that legally not sanctioned, de facto autonomy arrangements are effective and resilient, from which follows that traditional community institutions may prove to be a more important condition of effectiveness than official recognition of state authorities (Malloy & Salat, 2021).

A broad area of critical comments concerns the possible human rights implications of implemented NTA arrangements, together with the long-term consequences for social integration and the future of non-dominant groups. The “coercive” or “restrictive culturalism” empowered by the State (Levey, 2005; Nimni, 2005) subjects members to the group’s authority, compelling them to accept and support the cultural governing institutions, or even to accept the discriminatory treatment of their cultural tradition (Steiner, 1991). NTA practices are often depicted as inflicting the danger of atomizing societies, eroding the unity of the political community, and not simply preserving, but locking into place the historical differences among groups: “A state composed of segregated autonomy regimes would resemble more a museum of social and cultural antiquities than any human rights ideal” (Steiner, 1991, pp. 1552–1553).

Similar critiques disregard, on the one hand, that available legal remedies and the possibility to opt out can prevent or solve most of the human rights concerns; one the other hand, that some of the listed worries are everyday practices of states, too. The argument highlighting the risks of institutionalizing differences instead of diminishing them builds on the tacit assumption that cultures are of two kinds: either cultures dominant in states endowed with the right to be maintained and preserved, or non-dominant cultures doomed to seek, on medium and long term, assimilation into dominant cultures. Since this assumption is evidently non-tenable, the atomizing argument does not hold either: if the population of a state is diverse, encompassing non-dominant identity groups, official recognition, and legal empowerment of the groups through NTA arrangement makes the overall polity less atomized compared to the option when members of minority communities feel excluded and marginalized.

6.5 Conclusion

Are memberships in a political community, equality, and cultural distinctiveness reconcilable? Is Renner’s vision of a state in which national communities do not fight for exclusive control but cooperate within various forms of shared rule, including non-territorial arrangements, attainable?

If one approaches these questions from the position of ignorance or shallow understanding of the NTA phenomenon, the answers available reflect a sad and hopeless world: the political community cannot afford to be tolerant of diversity and the state, as we know it, needs dominant majorities in charge with exercising exclusive control over the population of various territorial units. No binding provision of international law or widely accepted standard of state behaviour exists which could trigger a change, and no widely known, successful examples are available in the practice of states of our contemporary world.

Getting familiar with the politics of NTA may help in understanding that this is not an irremediable, objective fatality we have to accept and live with. Understanding the preconditions, the type and nature of the actors involved, and the processes which bring about NTA arrangements, together with the limitations and costs, can contribute to raising awareness, both in the world of political elites and the wider public, that alternatives to the exclusive territorial political authority, which triggers many negative consequences in the circumstances of diversity, exist. Two elements of this awareness are particularly important.

First, realizing that since the non-dominant status in a polity is not an objective given but the outcome of the treatment by state policies and authorities, the situation can be improved by appropriate compensatory treatment. NTA arrangements are one of the available solutions, and if the authorities of a state are reluctant to consider the adoption of a minority regime incorporating elements of NTA, then suspicions are justified that political elites have vested interest in maintaining the existing structural inequalities.

Second, successfully implemented NTA arrangements are reliable indicators of state and political elite performance: where all the conditions on which effective NTA schemes depend are met, both the dominant majority and the non-dominant groups provide evidence of high standards of political culture, effective social dialogue, and the capacity of careful institutional design.

Summing-Up

• NTA arrangements are the result of political processes and power dynamics between dominant and non-dominant groups. Behind every instance of the NTA phenomenon there is a history of minority activism and claim-making, on the one hand, and political decisions made in the name of the State, on the other hand. The political processes occurring during the sequence of majority state- and nation-building, minority claim-making and State-responses to the non-dominant groups’ political activism are not always peaceful: conflicts may occur, and violence may be deployed by the parties. This chapter focuses on processes and circumstances that that bring about NTA arrangements with the means of conventional politics.

• NTA regimes are particular forms of power-sharing enshrined in state law, between two actors: the State, and a sub-State unit of non-territorial character, constituted according to the personality principle.

• Instead of considering them self-evident, perennial realities which do not need justification, states can be seen as socially constructed entities, the target and possible outcome of a political project: a claim and a promise made by a political elite, forwarded in the name of the society (the population of a given territory), using the imagined ‘people’ and ‘nation’ to provide for the legitimacy of the arrangement, according to a narrative.

• States are political communities with established territorial boundaries. Political communities evolved from tribes, city-states, empires into modern nation-states, many disappearing without traces, others leaving lasting imprints on the way of life and identity of human communities known today. One of the legacies of the political communities’ long history are the ‘semi-autonomous social fields’ (Moore) existing on the territory of most contemporary states: informal social units, communities with the capacity to make rules and induce compliance.

• The boundaries of the semi-autonomous social fields are processual, rather than territorial: compliance becomes possible due to personal decisions of the individuals to live according to the rules rooted in the community’s traditions. Authorities of a state can either ignore the semi-autonomous social fields existing on their territory and embark on homogenizing policies, or incorporate them in the nation- and state-building project. Sub-state units of non-territorial character emerge from the official recognition by the State of semi-autonomous social fields.

• NTA arrangement may come into being any time in the history of a State: while TA is often the outcome of protracted conflict, NTA arrangements may result from political bargaining, legislative processes, or institution-building. Since there is no biding provision in international law from which NTA could follow, the arrangements emerge in domestic politics from claim-making and pressure exercised by representatives of non-dominant communities and are the outcome of lengthy processes of negotiation.

• Preconditions facilitating NTA: such arrangements are suitable in asymmetrical settings where the dominant position of the titular nationality in the state is uncontested, yet there is at least one non-dominant minority group within the frameworks of the population, distinguishable from the majority due to strong identity markers (language, religion, way of life, etc.), voicing interest in identity maintenance, and possessing scattered, discontinuous patterns of settlement. The non-dominant group should have clear potential for collective agency, i.e. internal structure of authority capable of deliberating, evaluating, and choosing course of action.

• The establishment of an NTA arrangement requires decisions on the side of the State’s authorities, on the one hand, and the non-dominant group, on the other hand. Since political elites are speaking both in the name of the State and the minority group, respectively, the respective elites need to secure the approval of their constituencies for what they agree and how they perform in the course of the negotiations. The results of the negotiation should be ratified by law. Details of the institutional design differ according to the type of NTA agreed upon, depending on the particularities of the setting (size and level of mobilization of the non-dominant group, prehistory of the majority-minority relations, international context, etc.)

• Cultural autonomy is suitable for more cohesive non-dominant groups, capable of consensus-building, committed to take extra burden and actively participate in community governance in the fields of culture and education. In terms of institutional design, cultural autonomy requires minority registers, separate electoral rolls, and elections for the Cultural Council which will be recognized under public law, as the main decision-making body of the arrangement, empowered to make decisions biding for the members within the boundaries of delegated competences (limited to education, culture, language maintenance). The Cultural Council elects or appoints further institutional components through which the cultural self-governance will be operated.

• Personal and functional autonomy are options available for non-dominant groups unwilling or uncapable to self-organize in order to designate a common authority and accept its biding decisions. Personal autonomy arrangements require bottom-up statutory bodies registered under private law, yet recognized as exercising state functions by providing services in fields of education on the bases of operating licenses and recognition of the issued diplomas. Personal autonomy arrangements may cover additional areas of interest for non-dominant groups like, culture, mass media, welfare, economy, etc. The private law organizations active in the various domains may be organized into an umbrella structure.

• Functional autonomy aims to facilitate for members of non-dominant groups to be in charge with managing certain public functions in accordance with state law. In terms of institutional design, it implies the linguistic layering of public institutions, i.e. organizing regular administrative agencies along separate linguistic lines, the provided public functions/services being accessible, due to adequate staffing, both in the majority and minority language, within one common institution. Similar arrangements may be considered forms of NTA if consultative bodies representing the non-dominant groups have a say in appointing staff and/or delegating members in supervisory boards.

• Operating NTA arrangements requires self-limitation and tolerance on behalf of the dominant majorities, and engagement, activism, and hard work as far as the targeted minorities are concerned. Adequately socialized publics and relatively high level of political culture on both sides are critical requirements, too. Where these conditions are met, the implemented NTA arrangements have the potential to deepen democracy, provide effective channels of political participation and compensate the members of non-dominant identity groups for the disadvantages which follow from public services addressing preponderantly the needs of the State’s titular majority. The compensations, if appropriate and effective, may contribute to securing circumstances for linguistic, cultural, and religious identity maintenance on medium or even long term.

• The potential benefits of the NTA arrangements are strongly intermingled with shortages, disadvantages, and drawbacks, most of which follow from the limitations of non-territoriality, the agency requirement, and various pitfalls on the course of implementation. Part of these disadvantages may be prevented or ameliorated by careful institutional design, others are social costs which must be assumed by the actors participating in similar arrangements.

• Understanding the politics of NTA, the variety of institutional embodiments together with the limitations and costs, can contribute to raising awareness, both in the world of political elites and the wider public that alternatives to the exclusive territorial political authority, which triggers many negative consequences in the circumstances of diversity, exist.

6.1.1 Study Questions

• 1. Why are successful, enduring NTA arrangements relatively rare?

• 2. Why are churches, as institutions, carrying most of the NTA requirements, rarely mentioned or discussed as instances of personal autonomy?

• 3. Which are the most important merits of cultural autonomy?

• 4. Which are some drawbacks of cultural autonomy?

• 5. Which are three compelling arguments regarding the political benefits of NTA that could raise the interest of a policy expert belonging to a dominant majority in an ethno-culturally divided state?

6.1.2 Go Beyond Class: Resources for Debate and Action

• 1. https://www.world-autonomies.info.

• 2. Salat, L., Osipov, A., Constantin, S., & Székely, I. G. (Eds.). (2014). Autonomy Arrangements around the World. A Collection of Well and Lesser Known Cases. ISPMN–ECMI–UBB–EURAC Research.

• 3. Malloy, T. H., & Salat, L. (Eds.). (2021). Non-Territorial Autonomy and Decentralization. Ethno-cultural Diversity Management. Routledge.