We define non-territorial autonomy (NTA) as self-rule of a group of persons, through a sub-state entity with a non-territorial character, in matters considered vital for the maintenance and reproduction of their culturally distinctive features. These distinctive features may refer to the language, culture, religions or customs of the concerned groups. Just like in the case of TA, the constitutive elements of NTA can be derived from responses to the same three questions.
HOW is self-government exercised? NTA is inherently an asymmetric arrangement. NTA involves the creation of structures (legal entities) or institutions providing services for the minorities which are inexistent in the case of the titular majority, since mainstream national institutions are performing, in their case, the respective tasks. However, as opposed to territorial arrangements, which are self-governing entities within the state with strong singular characteristics, non-territorial autonomies following the same pattern are often granted to all recognized minorities of the state, and usually there are no asymmetries between the competences they wield. As far as the agent of the self-rule is concerned, NTA may be defined according to the personality principle (Renner, 1899/2005) or according to a functional logic (Heintze 1998, Tkacik 2008). If the personality principle is the driving logic of the arrangement, the agent of self-rule can be a legal entity registered under public or private law. However, in order to qualify as NTA, the right to self-rule must reach beyond the freedom of association (Eide et al. 1998, Benedikter 2010). If the functional logic prevails, a network of minority serving institutions (schools, cultural or media institutions, public administration bodies, courts, hospitals, etc) are the agents of self-rule – rather self-management, in this case – which carry out a part of the state competences for the benefit of the particular target group. NTA arrangements are regularly implemented either if territorial solutions are not feasible or deemed too costly to assume, or as complementary arrangements for a territorial solution.
WHY self-government? While TA may be granted to a territory also for other reasons than cultural diversity (e.g. geographic distance, historical circumstances), NTA is always institutionalized in order to manage some aspect of cultural diversity. Here, too, the desired outcome is the self-reproduction of the recognized group. It is not a mere coincidence that NTA arrangements are often referred to as cultural autonomy, because in most cases the competences transferred to the autonomous entity are in the domain of culture and education. Self-reproduction is particularly salient, for instance, with regard to language, which is often one of the core concerns of NTA arrangements, because the chances for long term survival of a language which is not dominant in certain territory are doomed to failure without proper institutional underpinning. The competences delegated by the state and exercised by the agent of the self-rule are seen as institutional guarantee of the desired outcome.
WHO exercises self-government? NTA is usually granted to communities living dispersed who share the territory with a dominant majority. Although NTA may be politically less costly than TA, it also faces some challenges regarding its practical implementation. The key issue of NTA is membership. The challenge is to reconcile the “ownership” and legitimacy of the autonomy (which require guarantees that only the members of the targeted group take part in the decision-making process) with the principle of freedom of identity. If the NTA is based on the personality principle, special lists may be necessary in order to determine who is entitled to vote for the elected bodies of the autonomy, which may involve the registration of every person within an ethnic group. In the case of functional autonomy, the target group is regularly easily singled out by the nature – in most cases: the language – of the delivered service. Self-rule, however, reflected in the ways in which governing bodies of the respective institutions are elected is more difficult to be articulated. In general, it is difficult to think of non-territorial arrangements capable to guarantee the the maintenance and reproduction of a group’s culturally distinctive features if the jurisdiction of the arrangement is not clear and the legitimacy of the internal decision-making processes is not warranted.