Nonterritorial Autonomy and Minority (Dis)Empowerment: Past, Present, and Future

Abstract

This review article outlines the literature on nonterritorial autonomy (NTA) from the renewed interest in the concept in the mid-2000s until today. First, the article provides a brief overview of the meaning of NTA and the rationale behind it, highlighting how, in academic literature, NTA oscillates between positions that treat it as an attractive option and a highly impractical system (difficult to realize in practice or even pin down conceptually). Second, the article looks at trends in the existing literature, which has approached NTA with various emphases: the functions it fulfils (or has fulfilled); its (at times) supplementary role vis-à-vis territorial autonomy; and the dynamics that have led to its introduction in some countries, with attendant implications. Third, the article outlines some of NTA’s complexities, suggesting future areas of research, with reference to the interaction of territoriality and nonterritoriality, collective rights and participation, and potentially negative consequences of NTA regimes.

Research on nonterritorial autonomy (NTA) has, until recently, been approached unsystematically. Thus, it differs from the much more extensive literature on territorial autonomy (TA). In fact, NTA has often been approached as a sub-field of autonomy studies rather than as a field in its own right (Malloy 2015, 2). The lack of prominence in academic literature, the relative rarity of concrete cases of NTA, and the frequent vagueness of the rights flowing from it have long relegated the concept to a condition of obscurity. A rapidly growing literature has resulted in sustained efforts to fill existing gaps, with new studies entirely devoted to NTA’s theory and practice.

Despite its limited popularity, NTA theory represents a significant chapter in European history with reference to debates on diversity accommodation. NTA is linked to the idea that autonomy in the management of particular spheres of concern to minority communities (primarily language, culture and education) should be guaranteed regardless of their members’ physical location. Thus, it aims to provide nonterritorial solutions to the regulation of minority affairs, meaning that NTA regimes are ideally placed to meet the needs of territorially dispersed communities, while also circumventing potential threats to a state’s territorial integrity.

NTA Origins and Rationale

Austro-Marxists Karl Renner and Otto Bauer were the first scholars to clearly conceptualize, through a series of writings, what they referred to as “national cultural autonomy” (NCA). A seminal text is Renner’s “State and Nation” (2005), first published in 1899. In the context of a highly diverse Austro-Hungarian empire, NCA was put forward as a model that could prevent its dissolution through diversity accommodation decoupled from territoriality. The proposed NCA regime would create institutions recognized as corporations under public law, with the autonomy to self-manage in the domains of culture and language. Individuals would (voluntarily) affiliate to ethnic communities, entering their names into national registers. NCA was seen to obviate the traps of a “centralist-atomist nation state” that inevitably led to national struggles (Bauer 2000, 274–275).

History has taken a different course. The international order following World War Two is organized around (nation-)states, while the international human (and minority) rights system centers around individual, rather than collective, rights. Yet, besides the theorizing by Renner and Bauer, the concept of NCA/NTA has been integral to European debates on diversity. A manifestation of the notion’s appeal can be found in the activities of the Congress of European Nationalities in the 1920s, inspired by Renner and Bauer:while not denying territorial frontiers, its proponents considered the nation-state model (with one community’s “ownership” of a territory) as grossly inadequate to meet the needs of intermingled ethnic communities (Smith and Hiden 2012). Moreover, there have been various forms of experimentation with NTA, including in Habsburg Austria (Kuzmany 2016), interwar Estonia (Smith 2016), and the Baltic states more generally (Smith and Hiden 2012). In some states—such as Ukraine and Latvia—while not formally introduced, NTA was widely debated (Liber 1987; Germane 2013). Soviet Russia ultimately opted for a system of TA (ethno-territorial federalism) to regulate its ethnic diversity, yet NTA concepts re-emerged in the post-Soviet period, as new institutional designs were devised following the Communist regime’s collapse. NTA legislation was also introduced in other post-communist countries of Central and Eastern Europe (CEE) (most notably Hungary, Serbia, and Estonia), while similar legislative reform was debated in others (as in Romania; see Decker 2007). To Nimni (2013), that CEE has adopted NTA models amounts to a “paradigm shift” in the conceptualization of democratic practice and self-determination. NTA is approached by theorists, such as Nimni, from the perspective of diversity preservation and as a challenge to the assimilationist nation-state which, through majority rule, is seen to perpetuate a democratic deficit in the representation of national minorities.

While Renner and Bauer were the first to propose national cultural autonomy as a distinct, unique system of diversity accommodation, regimes displaying NTA elements had already emerged. In particular, the Ottoman millet system is often considered a form of NTA (Erk 2015; Barkey and Gavrilis 2016). Today, NTA is seen as an umbrella term, whose exact scope is variously interpreted both by scholars and practitioners.¹ This is unsurprising, considering that the expression “autonomy” is itself the subject of debate. NTA regimes tend to have in common the regulation of “cultural affairs” (such as minority-language educational institutions and media) through legally recognized (and generally elected) representative bodies that fulfil functions delegated by the state (Hofmann 2006, 11). At the same time, the elasticity of NTA in theory and practice has led to its being applied to a range of associated regimes. In particular, it is often conflated with the minority rights system (Malloy 2015; Salat 2015) while also partially overlapping with consociationalism. Moreover, NTA is linked to various systems de-territorializing self-determination in plurinational states, such as special regimes for indigenous peoples or partial juridical autonomy for religious communities. These varied manifestations—and interpretations—attest to the multi-faceted and evolving nature of NTA, as well as clear attempts, in different contexts and locations, to accommodate diversity through democratic means. Yet, this variance complicates the crystallization of NTA’s exact features and functions. If we consider NTA as the institutionalization of (at least some) autonomy for national minorities in cultural matters, it transcends the European context, with examples found worldwide, and clearly precedes Renner and Bauer’s writings.

Functionality and Underlying Meanings: From Macro to Micro Perspectives

Given NTA’s fuzzy contours, studies have sought to dissipate the conceptual mist surrounding the notion. Malloy (2015) sees the literature on NTA as reflecting three different perspectives, linked to three strands of research: nationalism studies (Bauer 2000; Nimni, Osipov, and Smith 2013); conflict studies (Coakley 1994; Roach 2005); and diversity management (Gál 2002; Légaré and Suksi 2008; Smith and Cordell 2008). Besides classifications based on academic disciplines, various other trends are discernible.

A distinction can be made between studies that analyze NTA and NCA mechanisms in a broad sense and those whose focus is the original (Renner and Bauer’s) model and its potential adaptation to contemporary society. A seminal volume, edited by Nimni (2005a)—which provided, for the first time, an English translation of Renner’s article “State and Nation”—takes the original NCA model as the starting point for reflection, drawing comparisons with existing regimes. Nimni stresses NCA’s relevance for the international academic (and policy) community, given its potential contribution to responses to current crises, by transcending the limitations of (nation-)states. In the same volume, critics simultaneously identify what they consider the model’s shortcomings: an underlying perennialist approach to identity, linked to the principle of exclusionary choice of ethnic affiliation (which may entrench societal divisions); groupist² assumptions that can accompany NCA (Bauböck 2005); and, in Kymlicka’s (2005) opinion, the nonviability of mechanisms that are exclusively NCA-based in the case of sizeable, territorially concentrated minorities.

Nimni’s volume was an initial, highly valuable contribution to elucidating the significance of NCA. Subsequent studies had a broader scope, encompassing forms of nonterritorial autonomy (NTA) more generally rather than exclusively cultural autonomy. These studies eschewed considerations on the original model’s complexities, yet they followed a similar structure to Nimni’s volume, seeking both greater conceptual clarity and outlining an increasing number of case studies (on NTA exclusively or combining TA and NTA). These include a range of CEE cases as well as regimes presenting NTA elements, such as those of Maori in New Zealand, Sami in Norway, and French-speakers (outside Québec) in Canada (Semb 2005; Nimni, Osipov, and Smith 2013; Salat et al. 2014; Malloy and Palermo 2015; Malloy, Osipov, and Vizi 2015; Coakley 2016a; Falch, Selle, and Strømsne 2016; Hill 2016).

In order to delineate NTA’s scope and significance, these studies have looked for patterns, developed classifications, and generally attempted to crystallize NTA’s features. Given the overlap with minority rights more generally, Malloy et al. (2015) identify institutions as the primary factor that distinguishes NTA from other regimes. Classifications based on levels of effectiveness are, similarly, linked by Malloy et al. (2015)to institutionalized channels regulating autonomy through diffusion of powers from the state. Comparably, Coakley (2016a, 2016b) sought to analyze, through a range of case studies, objectives and characteristics of NTA systems. These studies have further highlighted factors for success of NTA regimes: Malloy et al. (2015) classified NTA models on the basis of their “voice,” on a spectrum ranging from functioning self-governing institutions to merely “symbolic” policies (“nonvoice”).³ These efforts have contributed to the understanding of NTA—and its dynamic interaction with TA—although whether some such cases ought to be classified as examples of “autonomy” at all is still a subject of debate (Salat et al. 2014).

By focusing on NTA’s types, functions, and effectiveness, these studies veer toward pragmatism. Their aim is diversity preservation and the unravelling of processes that (may) enable it, rather than presenting NTA’s normative value. Overall, these studies show that the benefits to national minorities deriving from NTA are often modest. NTA mechanisms are often characterized by precariousness and opacity as well as a difficulty in pinning down concrete rights stemming from them. An example is NTA’s institutional weakness in Russia and Estonia (classified by Malloy et al. [2015] as “nonvoice”). In fact, Kymlicka (2005 143–145) contends that the resurgence of NTA in CEE likely derives from its being less far-reaching (and thereby more socially “acceptable”) than TA, the latter being often regarded as threatening the integrity of post-communist states. Thus, NTA-based concessions may be instrumentalized primarily to preempt calls for TA (or outright secession).

At the same time, it is exactly NTA’s malleability as a negotiating tool that generates its allure. As Coakley notes, NTA has been described it as a ““magic bullet” in the armory of those seeking to cope with problems of ethnic diversity and conflict” (2016a, 166). Roshwald describes it as “a promising alternative […] situated at the golden midpoint between Balkanization and banalization” (2007, 373)⁴ As a “happy medium,” it can circumvent a winner-takes-all, zero-sum scenario that often characterizes the escalation of inter-ethnic conflict. Unsurprisingly, NTA has been incorporated into soft law instruments of the international minority rights regime.⁵

Yet, the enthusiasm around NTA’s potentialities has often been unmatched by practice. A range of scholars have referred to the underwhelming impact on minority policies or self-governance, resulting in NTA’s “utilitarian uselessness” (in relation to Russia, see Osipov 2010, 31) and in legal provisions amounting to a “dead letter” (Estonia; see Lagerspetz 2014, 471). Others, even in the context of unimpressive scenarios, have sought to highlight NTA’s (discreet) benefits, including the “symbolic” policies dismissed by Malloy et al. (2015): for example, with reference to the same cases of Russia and Estonia, and despite limited practical benefits, NTA has been seen as providing for the relevant institutions’ recognition as legitimate representative bodies, resulting in enhanced status and some access to state organs (Prina 2020; Prina, Smith, and Molnar Sansum 2019). Others again have pointed to incipient practices that signal growing recognition of NTA-related rights: a clear example is the extension of linguistic rights to French-speakers outside Québec through the application of NTA principles in the form of “institutional completeness.” The notion relates to institutions providing services to minority communities in their languages, a right that has been increasingly recognized in Canadian jurisprudence (Chouinard 2014).⁶ The benefits of NTA in the context of indigenous peoples’ rights has further been highlighted with reference to solutions that, for the most part, transcend territoriality, given obstacles to land restitution following past dispossessions. An example is New Zealand’s Maori and their autonomist aspirations which, while continuing to recognize the importance of land, have tended to refocus on collectivities and the management of their own affairs, including in the realms of health, welfare, and service provisions (Hill 2016).

These studies have either focused solely on NTA or generally treated “autonomy” as encompassing both TA and NTA. The latter approach (e.g., Malloy and Palermo 2015; Salat et al. 2014) has inter alia highlighted that the two regimes can be interlocking and mutually supportive: NTA can complement—or reduce possible shortcomings of—TA mechanisms, either through concerted action or by serving different functions (e.g., in the cases of Canada, Russia and Belgium⁷). Indeed, scholars such as Bauböck (2005 98) and Kymlicka (2005 138) argue that NTA should be treated as a supplement of, rather than an alternative to, TA.⁸

More speculative publications have suggested that NTA-inspired solutions may break impasses in instances of prolonged (sometimes seemingly intractable) inter-ethnic discord. Proposals have related to Israel (Peled 2013), the Kurds in the Middle East (Gunes 2013; Gunes and Gürer 2018), Cyprus (Dundas 2004), and Canada’s indigenous peoples (Nieguth 2009)—treating NTA as yielding untapped potential. Some have considered the application of forms of NTA with a view to promoting Roma rights at the state (Lajcakova 2010) but also international level (Klímová-Alexander 2005).⁹

Besides the focus on functionality (or potential functionality), NTA research has been approached from a different perspective. In particular, studies have analyzed what NTA practices tell us about societies in which they develop, unravelling NTA-related dynamics in their interaction with socio-political and historical circumstances rather than a possible discrepancy between the nominal and the real. Indeed, while NTA literature has tended to focus on “what could and should be, rather than what actually exists” (italics in original; Osipov 2010 30), these studies allow for broader considerations regarding public attitudes and expectations on minority protection regimes. They encompass research on post-communist and post-Soviet systems, characterized as forms of “NCA” by the governments and communities that embrace them, and consider the role of Soviet legacies in determining particular (NTA-related) policies. Osipov (2004) produced one such study with a thick description of Russia’s NTA. Later, the studies by Smith, Prina, and Molnar Sansum (Smith 2019; Molnar Sansum 2017; Prina 2020; Prina, Smith, and Molnar Sansum 2018) also followed a bottom-up approach through interviews, seeking to establish not (only) the effectiveness of the institutions (or, in most cases, sources of ineffectiveness) but what “cultural autonomy” means in practice in specific contexts. In the context of “what actually exists,” these studies have further considered instances of NTA “distortion,” or its hijacking from a diversity-accommodation tool to state-centric approaches.¹⁰

Unresolved Questions and Future Research

Despite the scholarship’s progress in recent years, aspects of NTA present challenges and continue to raise questions. These relate to the interaction of territoriality and nonterritoriality, collective rights and participation, and potential collateral damage deriving from NTA. First, if we go back to the view that TA should be regarded a supplement of—rather than an alternative to—TA, future scholarship could contribute to clarifying how the two interact in hybrid systems. The dynamics of dual systems are often complex, as exemplified by the case of Belgium, a decentralized federal state that is organized both on the basis of territories (TA) and distinct language communities (NTA) (Farrell and van Langenhove 2005).¹¹ While NTA and TA elements function in tandem in the Belgian system, there are, at times, expectations that the two should operate as distinct systems given their different aims, and concerns of mutual encroachment—for example, that the introduction of NTA may reduce acquired rights based on territoriality.¹²

A related issue concerns extra-territorial arrangements which are, however, short of post-territoriality, the latter understood as the transcendence of an ancestral link to territory. Such a link, Smith (1996 453–454) argues, is nurtured by collective memories which, in the construction of a nation, attach themselves to definite territories, creating “ethnic landscapes” (or “ethnoscapes”) perceived as historic homelands. In the context of NTA, these scenarios can lead to the conundrum of establishing nonterritorial mechanisms in the presence of a powerful, emotional attachment to a territory (and the impracticality of “de-territorializing” minority identities [Kymlicka 2007b, 388]). Nimni (2005a, 244) argues that this tension may be mitigated by acknowledging the centrality of territory and homeland to multiple communities without one group claiming exclusive control over it. Future research could focus on the intersection of NTA and territorial attachment, asking whether and how trust-building mechanisms and multicultural practices might promote “shared ethnoscapes,” including in (post-)conflict scenarios.

Second, NTA implies the exercise of rights as a collectivity. The question of group rights for national minorities remains highly complex as well as controversial (e.g., Pentassuglia 2018). Collective rights have been linked to recognition as a collective entity; this is both recognition of the social significance of communities (and their identity) as well as guarantees of minority representation at the state level. The latter has been advocated to address democratic deficits that may marginalize minorities to privilege majorities in nation-states (Payero-López and Nimni 2018; see also Nimni 2005a, 239).

Issues linked to minority participation and representation remain largely unresolved and exceedingly challenging, as they derive from a collision of interests that, in the case of NTA institutions, can manifest at two levels: between the state and minority communities as well as between a community (ethnic leaders at its apex) and individual (regular) members. In the first case, the state may influence, or effectively regulate, (often nominal) NTA mechanisms. For example, Poleshchuk (2015, 248) argues that “cultural autonomy” is interpreted in present-day Estonia merely as a “special right of association” of ethnic minorities, which depends upon the “political will and voluntarism of the authorities.” These processes are removed from (bottom-up) mechanisms for “effective participation” envisaged by the international minority rights system.¹³ NTA regimes can find themselves in an untenable position as they are part of an institutional framework designed by the state (sometimes with little or no minority participation) yet ought to operate independently from it (to activate autonomy). Interaction between state organs and NTA institutions often occurs in the presence of power differentials between the state (/majority population) and minorities.

In the second case (of differing interests between community leaders and regular members), ethnic entrepreneurs act as gatekeepers and may engage in “ethnobusiness,” instrumentalizing minority policies for personal benefit (Carstocea 2011). This question’s complexity, and difficulties in determining a “collective will,” is also addressed in the minority rights literature, which has highlighted the vital importance of a “link of accountability” between represented (minority communities) and their representatives (Verstichel 2008). In the case of NTA, a tension emerges between the oft-criticized “rigidity” (the fact that ethnicity-based affiliations may result in essentializing tendencies) and (overly) fluid systems that obfuscate who the stakeholders are and to whom ethnic leaders are accountable. Some studies have looked at the resulting impairment of NTA institutions’ internal democracy (Prina 2012; Prina, Smith, and Molnar Sansum 2018); more studies are needed to further analyze bottom-up activism in the framework of NTA, in different political ((semi-)autocratic or democratic) contexts, and minority (dis)empowerment.

Indeed, alongside NTA’s (in)effectiveness, research should aim to expose its potential collateral damage. Limited scholarship has considered NTA’s “hidden transcripts” (Osipov 2012) or corrosive practices that may be counterproductive. For example, if what the state presents as “cultural autonomy” is a “fictitious” form of “autonomy” (Prina 2016, 180–201), it may create a democratic façade that, in practice, undermines open debate; there may also be a presumption of representation of the collectivity’s concerns while, in reality, institutions are appropriated by the state through their members’ co-optation.

An additional form of potential collateral damage is the entrenchment of societal divisions by hardening perceived ethnic boundaries. To this concern, Nimni (2005a, 243) responds that tensions originate not from separate group identities per se but from the privileges afforded to dominant nations. Yet differing (ethnicity-based) regimes—including group-differentiated rights (Kymlicka 2007a)—may lead to suspicions of injustice in the distribution of material and nonmaterial resources (including political, social, and symbolic capital). A counterargument is that the continuous interaction of communities envisaged by NTA (and TA) systems leads to debate, cooperation, and, ultimately, compromise rather than division (Farrell and van Langenhove 2005).

The foregoing must be considered in light of new international developments. The centrality of the nation-state is moderated by the centrifugal forces of globalization and regionalism, along with a new emphasis on multi-level governance (Hooghe and Marks 2001), which brings to the fore subnational actors and interest groups. These developments raise new potentialities for NTA in the context of supra-national institutions, such as the EU (Klímová-Alexander 2005; Roach 2005). At the same time, the dynamism of diversity calls for nuanced and fluid regimes: transnational links furthered by the rapid development of information technology increasingly enable individuals to cultivate identities in countries of origin (or of ethnic belonging) as well as countries of residence; and alterations to a state’s ethnic composition through recent immigration may destabilize (more or less) consolidated forms of NTA, resulting in a need for revision. Finally, NTA dynamics have to be analyzed in the context of the recent rise of right-wing populism as a near-global phenomenon: right-wing positions forcefully imply assimilation or exclusion, and are located at the opposite end of the spectrum of cultural autonomy for minorities.

Conclusion

Renner and Bauer’s attempt to salvage in extremis the Austro-Hungarian empire might have been too little too late. At the same time, Nimni (2005b, 2) argues that, since Renner’s “State and Nation,” it is striking “how little we have advanced […] in accommodating the collective rights of national minorities within a single state.” Diversity accommodation remains problematic, particularly for communities that are spatially dispersed, while populations divided by ethnic antagonisms create a potential for conflict. Renner and Bauer’s concerns have a clear contemporary resonance. Meanwhile, historical NTA cases (such as in the Baltic states) remind us of debates, now over a century old, aiming to promote “a democratic and multinational vision of statehood” (ultimately obfuscated by the rise of the nation-state) (Smith and Hiden 2012, 9).

Despite NTA practices’ existing shortcomings, outlined in this article, NTA’s normative value stems from the transcendence of a taken-for-granted, and exclusive, link between a nation and “its” territory. In this context, NTA research (combined or not with TA) continues to be relevant in the 21st^: century: in particular, it may be reconfigured as one of the means to examine the fluid and contested spaces between the “nation-state” and multicultural society as well as the “meaningful intermediate locations” that the state, with its “totalising tendency,” may fail to recognize (Nimni 2005b, 240–241). NTA research may contribute, more generally, to the evolution of debates on collective rights for communities or nations and their interaction with individual rights, particularly with reference to the vexed question of participation. Indeed, NTA brings into sharp relief the complexity of internal decision-making of representative institutions, and the interaction of the (quasi-)autonomous institutions and state organs, with reference to minority accommodation and (dis)empowerment. These areas of research would involve an approach to NTA that is flexible rather than dogmatic (Nimni 2005a), eschewing attempts to (re)create rigid NTA models.

Another approach is to view NTA research as a means to analyze what actually exists (Osipov 2010, 30). Fine-grained analysis of societies where NTA regimes exist, employing qualitative methods, such as interviews (as in the studies referred to in this article), can reveal NTA’s deeper meanings and implications for individuals and communities. In this case, NTA-related concepts and practices are primarily treated as social phenomena and studied with reference to their intersection with socio-political circumstances and historical legacies.

Moreover, newly created or evolving systems are certainly worthy of scholarly attention. These include Canada’s “institutional completeness,” the progressive widening of the scope of NTA-related rights, and the use of NTA-like solutions for indigenous peoples in the presence of obstacles to land restitution, as in the case of Maori communities in New Zealand. New opportunities might open up at the international level, which future research ought to consider, such as the endorsement of (elements of) NTA by inter-governmental organizations and the management of inter-ethnic tensions through transnational institutions (for communities residing in multiple states, such as the Kurds and Roma—cases whose complexity require creative, possibly as yet untested, solutions). NTA may be of relevance in divided societies where impasses exist on territorial solutions to grave and incessant tensions, as for the Palestinians in Israel. NTA models may further reach spheres of minority concern inaccessible to TA mechanisms through integrated TA-NTA systems.

Other potential areas of research are: the relationship between NTA and perceptions of territory and (home)land; and the implications of NTA regimes in the construction of ethnic boundary lines, along with the question of how such boundaries can coexist with a shared civic space. Finally, highly significant is the potential for new NTA models to allow for the nonexclusivity of ethnic affiliation, reflecting on how NTA systems may operate on the basis of multiple, fluid categories. The future of NTA will likely depend on whether and how it can respond to the challenges of “superdiversity” on one side and, increasingly, right-wing populism on the other.