The Legal and Institutional Context of NTA

Abstract

AbstractNon-territorial autonomy (NTA) is one of the methods designed to accommodate ethnocultural diversity and empower especially relatively small and territorially dispersed minority communities. However, the appellation involves rather a generic, multifaceted and shifting umbrella term that embraces a wide variety of practices and theories, including those notions explicitly used in several national legislations, such as “cultural autonomy” and “national cultural autonomy”, as well as a bunch of similar denominations in theory, like “segmental”, “extraterritorial”, “personal”, or “corporate” autonomy. Their common elements lie in the fact that as a general rule they are based on the individuals’ ethnic self-identification and seek to represent a specific ethnocultural segment of the society regardless of its size and place of residence in order to preserve their members’ identities and distinct features, without aspiring control over the territory. Compared to territorial autonomy, NTA usually has less competencies, fewer participation rights in those particular areas being important for the group members’ identities, typically culture, education, language and religion, is less surrounded by legal guarantees and is financially more dependent on state budget. Moreover, the existing arrangements labeled as some forms of NTA in various Central and Eastern European countries all lack legislative powers and decisive authority. NTA can range from unrecognized and informal, non-legal practices and arrangements to private law institutions and even to constitutionally entrenched, institutionalized and extensive structures of separately elected self-governments at various levels, while alternative and emerging examples stemming from legal pluralism and network governance tend to be also accepted as forms of NTA. This in turn raises not only the question of the different institutional forms NTA may take and the various public and private law approaches, in which NTA may be embedded, but also the questions of group membership, effectiveness and the degree of institutionalization. Which individuals belong to a given minority, who has the right to enjoy the benefits provided by NTA arrangements, and who should decide on these issues? Are the traditional cases with their strong institutional and legal background the most effective, is there fully institutionalization at all, and further, whether NTA really needs to be institutionalized in a top-down manner and officially recognized by the state to make an NTA durable and functioning? To what extent does agency affect effectiveness, and are there other models that build more on bottom-up activities? To address the issues above, the present chapter aims to provide an overview of the various types and institutional forms of NTA especially in the European context, including the sectors and scope of their activities and the degree to which power has been delegated to NTA bodies. In addition, it also summarizes the various acts that might appear as a legal basis and guarantees for NTA in practice, including some “bypasses” that would present the pros and cons of the mostly applied legal solutions. A case study about the national minority councils in Serbia is included to illustrate how NTA can be built and institutionalized in a legal order in a top-down manner.