Beijing Law Review, 2012, 3, 170-183 Published Online December 2012 (
Protecting Minorities on a Non-Territorial Basis—Recent
International Developments*
Bertus de Villiers#
University of Western Australia, Perth, Australia.
Received July 18th, 2012; revised August 30th, 2012; accepted September 10th, 2012
The protection of minorities by way of non-territorial arrangements, also called cultural autonomy, is receiving in-
creased attention in theory and practice. While federalism and decentralisation often afford indirect protection of mi-
norities on a territorial basis—be it b y way of autonomy to state or local governments—Dispersed minorities often fall
through the territorial “crack s”. Cultural autonomy can potentially play a vital role to grant protection to minorities that
do not have a territorial base of their own. This article, which reflects on recent international developments to protect
minorities by way of n on-territorial arrangements, sh ows how th e theory and practice of cultural autonomy have gained
legitimacy in countries such as Estonia, Slovenia, Kosovo and Finland. Finally, potential lessons are identified for po-
tential application in other emerging democracies.
Keywords: Protection of Minorities Decentralisation; Autonomy; Cultural Councils
1. Introduction
One of the greatest challenges for modern democratic
theory and practice is to provide adequate protection to
language, religious and cultural minorities—Especially
minorities that do not have a local or regional territorial
area where they constitute the majority [1].1 Federal and
decentralisation mechanisms are often used to provide
indirect protection to minorities that live concentrated in
geographical areas. Minorities that live scattered or in-
termingled with other groups are, however, regularly ex-
cluded from effective participation in public policy. Eth-
nic minorities may feel permanently excluded for reasons
described as follows by Horowitz:
“In many societies, there are ethnically bases parties,
ethnic voting at high rates, and electoral outcomes
that foster a sense of group inclusion and exclusion
that exacerbates whatever pre-existing conflicts are
present between the groups. Not surprisingly, a great
many violent conflicts follow electoral exclusion of
this kind, whether anticipated or accomplished [2]”. 2
Decentralisation is recognised as a potential effective
mechanism to provide indirect protection of ethnic mi-
norities so as to enable groups to make or administer
decisions on a regional or local level where their mem-
bers reside. Decentralisation may take many forms but in
essence it allows decision-making and/or administration
to be undertaken at a local or regional level. Minorities
that are sufficiently concentrated in a geographical area
*The author acknowledges with great appreciation the grant made avai-
lable by the Alexander von Humboldt Stiftung to facilitate the research
on which this publication is based. The opinions expressed herein are
entirely those of the author.
#Bertus de Villiers (BA Law, LL.B, LL.D) is a member of the State Ad-
ministrative Tribunal of Western Australia. He is a visiting fellow of the
law faculty of the University of Western Australia. He is an inaugural
Fellow of the Western Australian Institute of Dispute Management unde
the auspices of the Murdoch University. He is admitted as a legal practi-
tioner in Australia and South Africa. He was closely involved during the
constitutional negotiations in South Africa from 1990-1996. Dr. De Villiers
has travelled widely and has undertaken research on constitutional and
olitical developments in various countries. He has published extensively
on a wide range of constitutional issues, in particular topics dealing with
federalism, protection of hu man rights, land refor m and cultural diversity.
He recently acted as the foreign expert in the Forum of Federation’s lea-
dership training project in Ethiopia on federalism and intergovernmental
1Although there is no agreement in international law as to the correct
definition of “minority groups”, the definition most preferred and
widely used is that proposed by Capotorti in his ground-
reaking work
undertaken for the United Nations on the protection of minorities as
Special Rapporteur. Capotorti proposed the following definition o
what constitutes a “minority”:“A group which is numerically inferior to
the rest of the population of a State and in a non-dominant position,
whose members possess ethnic, religious or linguistic characteristics
which differ from the rest of the population who, if only implicitly,
maintain a sense of solidarity, directed towards preserving their culture,
traditions, religion and language.” F. Capotorti, Study of the rights o
ersons belonging to ethnic, racial and linguistic minorities UNO 1977
UN-Doc E/CN.4Sub.2/384, Rev 1, par 568.
2DL Horowitz, “Conciliatory institutions and constitutional processes
in post-conflict societies” (2008) William and Mary Law Review 1215.
Copyright © 2012 SciRes. BLR
Protecting Minorities on a Non-Territorial Basis—Recent International Developments 171
may therefore achieve some degree of autonomy over
decisions and administration of laws that affect their lan-
guage, culture, religion and traditions. Refer for example
to the experiences of Switzerland, India, Malaysia, Bel-
gium and Nigeria to grant to minorities protection by way
of territorial arrangements.
Many minorities are, however, dispersed or intermin-
gled with other p arts of the population and without a ter-
ritorial base where they constitute a majority. As a result
such dispersed minorities often do not enj oy the potential
benefits of territorial decentralisation or federalism [3-
10].3 Refer for example to the many minority groupings
in Ethiopia, the Russian Federation, Indonesia, South
Africa and Nigeria that are not the beneficiaries of terri-
torial autonomy arrangements.
Although the praises of federalism and its ability to
accommodate and protect minorities through territorial
autonomy are often widely proclaimed [11],4 few federa-
tions offer autonomy of decision-making to minorities
that do not have their “own” regional or local base.5 The
key federal pillar of “self rule” [12]6 is, generally, only
applied on a territorial basis.
The limitations of territorially-biased federal and de-
centralisation arrangements bring to light the challenges
faced in modern day constitution making in regard to the
protection of minorities. It is relatively uncomplicated to
use various forms of territorial autonomy to provide in-
direct autonomy to minority groups. It is however the
plight of minorities that do not have an area where they
dominate, that often escapes attention. It comes as no sur-
prise that the former High Commissioner on National Mi-
norities ob served that “insufficien t attention has been paid
to the possibilities of non-terri torial autonom y [13].”7
The demands, particularly in emerging democracies,
for non-territorial solutions for the protection of minori-
ties, are growing stronger by the day. It is realised that,
particularly in co untries with large nu mbers of minorities,
neat geographical solutions cannot be found to accom-
modate all the minority groupings. Refer for example to
the following observations in regard to the situation in
Nepal [14] :8
“A major concern shown (in Nepal) against the fe-
deral structure approved by the Constituent Assem-
bly’s subcommittee and other similar models is that
many groups are territorially dispersed and hence
territorial federalism may no t address the aspirations
for autonomy of many dispersed groups. Non-ter-
ritorial federalism can provide autonomy to territo-
rially dispersed groups. It can also address the aspi-
rations and needs of members of territorially con-
centrated groups that live outside their traditional
homeland. A combination of territorial and non-
territorial federalism would, hence, address the as-
pirations for autonomy of various territorially con-
centrated and dispersed groups [15]”.9 (author em-
3The For a general overview refer to H. Hannum, Autonomy, sovereignty
and self-determination: The accommodation of conflicting rights (Uni-
versity of Pennsylvania Press Philadelphia 1990); R. Lapidoth, Auto-
nomy: Flexible solutions to interstate conflicts (United States Institute
of Peace Washingt on DC 1997); M. Suksi, E d., Autonomy: Applicatio ns
and implications (Kluwer The Hague 1998); Y. Ghai, Ed.,
and ethnicity: Ne go ti a ti n g c om p et i ng cl a im s Cambridge UP Cam bridge
(2000); K. Myntti,
commentary to the Lund Recommendations on the
effective participation of national minorities in public life (Abo Aka-
demi Abo 2001); K. Gal, Ed., Minority governance in Europe(Open
Society Institute Budapest 2002); SC Roach, Cultural autonomy, mi-
nority rights and glob alization (Ashgate Aldershot. 2005), and E.Nimni
“National-cultural autonomy as an alternative to minority territorial na-
tionalism” (200 7 ) 6 Ethnopolitics, 345-364.
4For example, Thomas Markert, the deputy secretary of the European
Commission on Democracy through Law of the Council of Europe
recently observed as follows about the use of federalism to resolve
conflict, “Federalism allows taking into account diversity. It enables
minorities living in a specific territory to have self-government, espe-
cially in areas that are crucial for maintaining their identity such as
culture and education. It is no coincidence that in federal countries
culture and education are typically within the competence of the fede-
rated entities. In addition to providing self-government for certain
areas, federalism also gives the entities the possibility to make their
voice heard at the federal level in a second cham
er...Federalism is
therefore at least in theory ideally suitable for maintaining unity within
diversity.” M Markert, “Unity in diversity” in Council of Europe The
constitutional status of the regions in the Russian Federation and on
other European countries (Council of Europe 2003) 20.
5Belgium is the sole federation that contains formal non-territorial
arrangements albeit limited to the capital city, Brussels.
6Elazar “coined” the concepts of “self-rule” and “shared-rule” to de-
scribe the essence of federalism. DJ Elazar, Exploring federalism (Tu-
scaloosa: University of Alabama Press 1987).
In contemporary constitu tion al develop ments, Belgium
and the Russian Federation are arguably the only federa-
tions that have formal, albeit limited, legal arrangements
to provide for territorial and non-territorial autonomy of
cultural groups. The Belgian federation provides for the
autonomy of cultural groups through the mechanism of
cultural councils, in addition to territorial autonomy for
the main language groups [16-23 ].10 The Russian Federa-
tion provides very limited decen tralisation and fun ding to
cultural, non-governmental organisations—These organi-
sations therefore do not constitute “governments” in a
public law sense, but rat he r a civil organization [24- 28] .11
In this article, consideration is given to recent develop-
7Although M. van der Stoel, Peace and stability through human an
minority rights:speeches by the OSCE High Commissioner on Nationa
inorities (N omos, 1999), 172.
8The challenge faced for minorities in Nepal is summarised as follows:
“Above all, the country is moving from a hierarchical society in which
one's place was dictated by gender, caste and ethnicity, to one that
aspires to making human dignity and equality its fundamental principles
The concern of the marginalised communities (“minorities” in a socio-
logical but not necessarily numerical sense) has been to ensure their
rightful place in the political and economic spheres…” Y. P. Ghai, “A
commentary on the place of minorities and indigenous communities in
epal” in Adhikari, 2010, 233.
9M. Lawoti, “Non-territorial federalism” The Kathmandu Post (09/
07/2010) available at:
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments
ments in particularly young democracies of Europe to
protect dispersed minorities on a non-territorial basis.
Countries such as Estonia, Slovenia and Kosovo have
displayed remarkable creativity and ingenuity to develop
constitutional mechan isms to gran t autono mous decision-
making by way of decentralisation to minority groups on
a non-territorial basis. The article gives an overview of
some of those arrangements and identify what, if any,
lessons can be drawn for other emerging democracies
that are still searching for way to protect the rights of
dispersed minority groups.
2. What Is Non-Territorial Autonomy?
It is widely recognised, especially in some of the new
democracies of Central and Eastern Europe, that practical
solutions to the question of dispersed minorities are ne-
eded so as to deepen and consolidate the progress that
has been made in democratic development in emerging
democracies [29].12 An option that is increasingly being
pursued is to decentralise decision-making and admini-
strative powers to communities o r to cultural councils es-
tablished by communities. Cultural or non-territorial auto-
nomy is therefore seen as a supplement to territorial
autonomy and even in some instances a substitute for
territorial autonomy [30].13
Non-territorial autonomy can be described as follows:
“A non-territorial jurisdictio n exists when independent
public authority is exercised in respect of certain indi-
viduals throughout the state irrespective of the fact that
those individuals are residing in territorial jurisdictions in
which other individuals are subject to similar public au-
thority from territorially delineated jurisdictions [31]”.14
(author emphasis).
Non-territorial autonomy rests on two principles, firstly
the decentralisation of decision-making to a group rather
than to a geographical territory, and secondly the cloth-
ing of such a group with public powers as a form of govern-
ment in contrast to a private club or an association.
Hofman observes as follows in regard to the practical
application of non-te rrit orial autonomy to minorit y groups:
“Generally speaking, the concepts of cultural au-
tonomy or functional layering of public authority
may be usefully applied in situations where a mi-
nority does not constitute the majority or a sizable
minority of the population in a given region of a
state but finds itself dispersed throughout the whole
of a state. In such a situation (e.g. Hungary [32-34])15
10The non-territorial arrangements in Belgium only apply to the capital
city, Brussels. For general reference see P. Peeters, “Federalism: a
comparative perspective—Belgium’s transform ation fro m a unitary to a
federal state,” In: B. de Villiers, Ed., Evaluating federal systems(Cape
Town Juta (1994) 194-207; K. Deschouwer, “Kingdom of Belgium”in
Kincaid and Tarr, Eds., 2005, 48-75; Lecours, A., “Belgium”in
Griffiths Ed., 2005: 58-72. Deschouwer, K., “Kingdom of Belgium”
in J. Kincaid and A. Tarr, Eds., Constitutional Origins, Structure,an
Change in Federal Countries (McGill-Queen’s University Press,
Montreal 2005) 48-75, and H. Dumont, N. Lagasse and others “King-
dom of Belgium,” In: A. Majeed, R. L. Watts and D. M. Brown, Eds.,
istribution of powers and responsibilities in federal countries, (Mc-
Gill-Queen’s University Press, Montreal, 2006) 34-65; W.Pas, “A
dynamic federa lis m built on static pri nciple s: The case of Belgium,” In:
Tarr, Williams and Marko, Eds., 2004, 164; J. Fi t zmaurice, The politics
of Belgium (Hurt London, 1988) 113; and W. Swenden, “Asymmetric
federalism and coalition-making in Belgium,” (2002) 32(3) Publius:
The Journal of Federalism, 67-85.
11Russia also has cultural association arrangements but those are prin-
cipally of a private nature and not public law institutions such as the
cultural councils in Belgium. Other federations such as India and South
Africa also have many informal non-governmental organizationsthat
look after the cultural, language and religious interests of their mem-
bers, but none of those have the status as public law organs of govern-
ment. For general ref erence to the arrangements in the Russian Federa-
tion refer to Busygina I. and A. Heinemann-Gruder “Russian Federa-
tion” in Moreno and Colino Eds., 2010: 263; B. Bowring, “The Tartars
of the Russian Federation and national-cultural autonomy: a contradic-
tion in terms?” (2007) (6) Ethnopolitics 417 - 435; B Bowring, “Legal
and policy developments in the Russian Federation in 2007 in regard to
the protection of minorities” (2006/7) (6) European Yearbook of Mi-
nority Issues 35; D. Wirda, “Legislation of the Russian Federation
concerning ethnic minorities and its shortcomings” http://www.ea-; and B. Bowring, “Aus-
tro-Marxism’s last laugh? The struggle for recognition of national-
cultural autonomy for Rossians and Russians,” (2002) 54, Europe-
Studies, 229-250.
12For general reference refer to N. Chronowski, T. Driconzi and T. Ta-
kacs, Eds., Governmental Systems of Central and Eastern European
States (Kluber Warszawa, 2011).
13W. Kymlicka, “National cultural autonomy and international minority
right s norms,” (2007) 6(3) Ethnopolitics: Formely Global Review o
thnopolitics, 379 -393 at 385.
14There is some debate, although not the subject of this research, as to
what the proper terminology is to use for community autonomy,
namely “personal” autonomy or “cultural” autonomy with some con-
tending that “personal” autonomy refers to the rights persons exercise
in pursuance of their fundamental individual rights while cultural
autonomy specifically refers to the rights of a group. For a very brie
but useful overview of this debate refer to M. Suski, “Personal auto-
nomy as institutional form—focus on Europe against the background o
article 27 of the ICCPR” (2008) (15) International Journal on Minority
and Group Rights, 157-178.
15To Hungary can be added the recent developments i n regard to c ultural
autonomy in Russia, Estonia, Kosovo, Hungary, Slovenia, Macedonia
and Croatia. Malloy describes the range of mechanisms enacted in
Slovenia for the purpose of protecting the rights of the two co-nations,
Hungarian and Italian, as “an instructive example of how co-nation
consociationalism might work.” T. H. Malloy, National minority rights in
urope (Oxford U niversity Press, Oxford, 2005), 188. The arran gements
include collective autonomy on the basis of a mix of territorial and
cultural autonomy; participation in joint structures, mutual veto’s in
certain circumstances and special rights in regard to local self-go-
vernment. Also refer to the arrangements in Macedonia to protect
minorities as discussed by J. Marko, “The referendum on decentralization
in Macedonia in 2004: a litmus test for Macedonia’s interethnic re-
lations” (2004/5) (4) European Yearbook of Minority Issues, 695-721.
The main elements are the use of minority languages in public offices;
support for education in mother-tongue; local self-government where
communities are concentrated; and a double majority system in par-
liament in regard to certain legislation. The decentralisation to small
local government entities in Macedonia has been described as a
“compromisesolution” to territorial autonomy or federalism since it
enables communities at a local level to take care of the matters that affect
their lives most intimately. I. Tomovska, “Post-conflict developments
and decentralization in Macedonia,” (2008) EuropeanYearbook o
inority Issues (7) 146-147.
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments 173
have opted for the introduction of a system endow-
ing institutions established under public law with
the power to regulate—or at least to have a most
significant say in the regulation of—“cultural af-
fairs”, including, in particular, the runn ing of public
education institutions, such as Kindergartens and
schools, or the management of their own cultural in-
stitutions and media, such a publically funded ra-
dio and TV broadcasting programmes. The impor-
tant aspect here is the fact that minorities exercise,
in the fields concerned, some kind of self-govern-
mentusually through representative bodies, the
members of which are elected by and from the
members of the minority concerned [35]”.16 (author
Non-territorial or cultural autonomy can therefore be
granted to a linguistic, cultural or religious minority
group as a legal entity (“cultural council”) with public
law legislative and executive status and functions to ope-
rate as an organ of government. The status and powers of
a public law entity must be distinguished from the work-
ing of many non-governmental organisations that pro-
mote the interests of their members by way of clubs or
associations. Non-governmental organisations do not have
governmental legislative and executive functions. Cul-
tural councils on the other hand, are clothed with the
powers of government in the same way than a regional or
local government.
The jurisdiction of such a cu ltural coun cil app lies to its
members regardless where they reside in a region or
country. The autonomy of the minority and its ability to
manage and control its own affairs through a cultural
council are therefore not dependent upon the members of
the group forming a majority at a regional or local level
Cultural autonomy and decentralisation of decision-
making to a cultural council can take place by way of a
constitutional or statutory instru ment in which the power
to make binding laws or the administration of laws is
given to a community’s cultural council—rather than to a
region or local government as is the case with territorial
federations or decentralised unitary systems.
Cultural autonomy within the realm of pub lic law must
therefore not be confused with the right of individuals to
establish for private purposes their own non-govern-
mental associations such as clubs, schools, media or fo-
rums for the protection or promotion of their identity.
Such private associations are common in all democracies
and arise from the right of freedom of association of in-
dividuals. The private associations do not, however, carry
any public law functions or authority as organs of go-
vernment. The decisions of non-governmental organi-
sations are therefore of a private nature and enforcement,
if any, is voluntary or takes place under civil law.
Cultural autonomy therefore entails that public law
powers and functions associated with an organ of go-
vernment are decentralised to a cultural council. The ju-
risdiction of a cultural council is non-territorial in con-
trast to national, regional and local governments which
have a territorial jurisdiction. The legal status and en-
forceability of a law made by a cultural council is the
same as the enforceability of a law made by a regional or
local government [37].18
In short, where the decisions of territorially based
governments apply to all persons that reside within their
territory, the decisions of a cultural cou ncil only apply to
the individual members of the community irrespective of
where they reside. Cultural autonomy is specifically de-
signed to enable minority communities to make decision s
of government, to raise taxes and to offer services of
government to their members regardless of where they
Cultural autono my is generally speaking “adequate for
minorities who live dispersed in the country but have a
strong political will for self-government and articulate
their claims as such. The community is entitled to dif-
ferent, wide-ranging rights in political, economic and so-
cial life, although these rights have so far usually been
limited to matters of culture, language, religion and edu-
cation [3 8]”.19
Although the practical application of non-territorial
autonomy arrangements remains scarce, there are, as is
discussed below, very useful historic and contemporary
examples of it.
In summary, as a matter of principle there is no dif-
ference in substance between the cons titution al allo cation
of powers and functions on the one hand to a legal per-
son a formed by a cultural group, and on the other hand
the powers and functions allocated to a geographical en-
tity such as a region or a local government. In the same
way that the constitution or statute can define a territory
for purposes of decentralisation, a similar mechanism could
be used to define a cultural council for purposes of de-
3. Differences between Territorial and
Non-Territorial Autonomy
The following are some of the most important practical
differences between cultural and territorial auton omy:
1) For territorial autonomy the boundaries of geo-
18T. H. Malloy, “The Lund recommendations and non-territorial arrange-
ments: progressive de-territorialization of minority politics,” (2009)
nternational Journal on Minority and Group Rights ( 16) 665-679.
19K. Gal, “Minority Governance on the Threshold of the Twenty-First
,” in Gal,Ed., 20 02,8.
16Hofmann, R., “Political participation of minorities” (2006/7) Euro-
ean Yearbook of Minority Issues (6), 11.
17A Legare and M Suksi “Introduction: rethinking the forms of autono-
my at the dawn of the 21st century,” (2008)
nternational Journal on
and Grou
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments
graphical entities be it regions or local government must
be defined, while for cultural autonomy the cultural group
the subject of the autonomy must be defined or a process
must be established for groups to register for purposes of
cultural au tonomy [39];20
2) The jurisdiction of cultural autonomy relates to indi-
viduals that are members of the cultural group regardless
of where they live, while the jurisdiction of a region or
local government affects everyone residing within the
geographical area of the local or regional government;
3) The typical functions that can be allocated to a cul-
tural council are more restricted than the powers and
functions that can be allocated to a territorial entity. This
is because cultural autonomy deals predominantly with
the culture, language, religion and customs of a group
and not with wider governmental functions that have a
territorial dimension, for example, infrastructure, envi-
ronment, public transport, agriculture, etc. Typical func-
tions that may be decent ralised, in whole or in part, to
cultural councils are aspects of education, media, cultural
symbols, commemorative days; language and personal
and family law.
The concern is often expressed that cultural autonomy
may be difficult to achieve; that it may cause conflict;
that it may undermine national unity; and that it may lead
to discrimination.
While these concerns about cultural autonomy require
attention to preven t it from materialising, there is no gua-
rantee that territorial arrangements do not give rise to
similar risks. In fact, there are many international exam-
ples where regional autonomy has been used and abused
by minorities for purposes of promoting their own inter-
ests to the exclusion of others.
The emphasis that is often placed on territorial auto-
nomy as the only effective avenue for minorities to gain
a form of autonomous decision-making, may be a far
greater risk to the stability of a country,21 than to give
minorities the assurance that even if they do not domi-
nate a region or local government, their cultural and lin-
guistic rights would be respected and protected by way of
a cultural autonomy.
In sum, the risks and challenges posed by non-territo-
rial arrangements are not necessarily greater than the
risks and challenges posed by territorial arrangements
4. Examples of Cultural Autonomy
Although practical examples of cultural, non-territorial
autonomy are scarce, there are nations that have experi-
mented with cultural autonomy. Valuable lessons can be
learnt from those experiences. The following are exam-
ples of countries that have in recent years experimented
with cultural autonomy—Estonia, Finland, Slovenia, and
5. Estonia—Setting the Pace
Estonia has arguably enacted the most far reaching and
comprehensive arrangements for the establishment of
cultural councils; the powers and functions of the coun-
cils; and matters related thereto.
Estonia has had two phases of bestowing cultural
autonomy on cultural communities.
The first phase of cultural autonomy in Estonia lasted
from 1920 to 1939 at which time it was occupied by
USSR. The second phase commenced after the fall of the
Berlin Wall and the return to democracy in Estonia
Estonia was one of the first post-World War I coun-
tries that acknowledged and protected the rights of its
national minorities [42,43].24 The respective minority
groups, who lived intermingled and for whom territorial
autonomy was not a practical or viable option, were
granted the right to establish cultural councils with de-
centralised powers and to make decisions that were
binding on the members of the group regardless of where
they lived [44].25
The minority groups that could qualify for the com-
munity autonomy were the Russians, Germans, Jews and
Swedish [ 45].26
The system of minority protection was regarded as one
of the most successful in Europe. It was said at the time
that “the pride of the Estonian nationhood was its treat-
ment of national minorities [46].”27
The second phase of cultural autonomy, which is es-
sentially a continuation of Estonia’s previous experiences,
commenced with Estonia’s return to democracy and the
enactment of the Act on Cultural Autonomy for Ethnic
20As is pointed out above, international law has not yet been able to find
a comprehensive definition for the concept “minority”, although within
state constitutional arrangements there has been greater success to iden-
tify the groups the subject of special arrangements. B. De Villiers,
“Human rights in developing countries: Some crucial issues,” (1996)
ournal of South Af
ican Law, (4) 692.
21Refer to the experiences of India, Nigeria and Ethiopia discussed
above where the sole emphasis placed on territorial solutions have led
to a spiral of state creation (Nigeria); ongoing demands for more states
(India); creation of subregional arrangements leading to five or 6 levels
of government (Ethiopia) just to give each group some sense of territo-
rial “control”.
22Refer in general to K. Henrard, “‘Participation’, ‘representation’ and
‘autonomy’ in the Lund Recommendations and their reflections in the
supervision of the FCNM and s everal human rights Conventions,” (2005)
nternational Journal on Minority and Group Rights ( 12) 133-168.
23K. Alenius, “The birth of cultural autonom y in Estonia: how, why, a n d
for whom?” 2007, 38(4), Journal of Baltic Studies, 445-462.
24J. G. Jackson, Estonia (Allen and Unwin 1941) and B. de Villiers,
statsregtelike beskerming van outonome besluitneming minderheids-
roepe (LL.D. Thesis, University o f J o h a n n e s burg 1989), 98-107.
25R. T. Clark, “The Constitution of Estonia” (1921) Journal of
Comparative Legislation and International Law (3) 250.
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments 175
Minorities on 28 November 1993 [47]28 and the Estonian
Language Act 1995.
The essence of this legislation is recognition of the
right of national minorities to protect, promote and pre-
serve their identity, lan guage and culture.
The Act on Cultural Autonomy grants collective cul-
tural autonomy to minority groups so as to enable them
to make and implement laws about their culture, lan-
guage and traditions [48].29
“Cultural autonomy” is defined as “the right of indi-
viduals belonging to a national minority to establish cul-
tural autonomy in order to achieve the cultural rights
given to them by the constitutio n.”30
The cultural autonomy of a group is awarded to a legal
entity, a cultural council, which has the power to make
decisions and administer those decisions on behalf of a
group.31 The jurisdiction of the cultural council is exer-
cised on a personal/individual rather than on a territorial
basis.32 The decisions of a cultural council are therefore
applicable to all of its members regardless of where they
reside in Estonia. Membership of a cultural group is vo-
The Act on Cultural Autonomy reco gnises the right of
citizens33 of Estonia, who are distinct from the general
population of Estonians on the basis of their ethnic, cul-
tural, language or religious traditions and identity, to be
recognised as a “national minority”.34
The principle objectives of the cultural autonomy are
to organise education in the/their mother tongue; to es-
tablish and manage educational facilities; to establish a
fund for the promotion of culture and education; and to
form institutions for the promotion of culture.35
At the time of the enactment of the legislation, there
was an estimated 14 major ethnic groups residing in Es-
tonia [49],36 but not all of those would qualify for cul-
tural autonomy.
Once a national minority is recognised, such a group
qualifies for the autonomy arrangements,37 but the group
is not obliged to take up autonomy. A group may there-
fore qualify for autonomy but the members may decide
not to mobilize to take up autonomy arrangements.
Certain minority communities, namely those that had
recognition under the previous phase 1 minority arran-
gements, who have traditionally formed part of Estonia
and whose existence as a national minority is not in dis-
pute, are explicitly recognised by the Act and they need
not to comply with any further requirements or registra-
tion in order to obtain or qualify for autonomy. Those
groups are listed as the German, Russian, Swedish and
Jewish communities [50].38
Other minorities, such as the Ukrainians and Belaru-
sians who may wish to quality for cultural autonomy,
must demonstrate that they have at least 3000 members
before they can ap ply for the Act to be applied to them.39
The Act provides for the establishment of a National
Register of Minorities in which each of the groups that
acquire autonomy, is registered. The Register for each
group is maintained by the group themselves. The Regi-
ster must contain the details of their members.
Members of the national minorities have the guaran-
teed rights to undertake various activities of which the
following are examples: to form cultural in stitutions with
the aim to promote and protect their identity; to practice
their traditions and culture; to use their mother tongue
within limits determined b y law; and to publish and co m-
municate in their language.40
The Ingrian Finish community was the first to obtain
cultural autonomy in 2005. The second community to
take up autonomy was th e Swedish. An interestin g aspect
that the Swedish community has to contend with is that
so many of their members, and especially children, have
become integrated with the Estonian society due to the
close proximity of the two countries. It is therefore some-
times “difficult to determine where exactly the (Swedish)
community begins and ends [51].”41 This is a typical
challenge of non-territorial protection of minorities where
persons may have multiple identities and the classifi-
cation of a person as belonging to a single identity may
be problematic.
26V. Raud, Estonia: Reference Book (Nordic Press 1953) 41.
27E. Nodel, Estonia: Nation on the anvil(Bookman Associates 1963) 176.
29a11 of the Act on Cultural Minorities 28 November 1993. Available at (accessed on 17 July 2012).
For general discussion r efer to M Susk i, On th e constitut ional feat ures o
stonia (Abo Akademis tryckeri Abo 1999).
30a2(1) of the Act on Cultural Minorities.
31a26 of the Act on Cultural Minorities Determines as Follows: “Ins-
titutions of Cultural Autonomy Are Independent Legal Persons, May
Own Real Property and Are Liable foreir Financial Obligations.” Th
32a6 of the Act on Cultural Minorities.
33It therefore excludes “new” (immigrant) minorities of whom the
members are not citizens of Estonia. In order for a minority to be
recognised it must “maintain long-standing, firm and lasting ties with
Estonia...” a1 of the Act on Cultural Minorities.
34a1 of the Act on Cultural Minorities.
35a5 of the Act on Cultural Minorities.
Once a national minority qualifies to obtain cultural
37There is an interesting similarity between the phasing in of community
autonomy arrangements in Estonia and the asymmetry of regions in
Spain, Italy and Iraq wh ere histor ic regions c ould gain autonom y p rior to
other regions. In Estonia, there is no obligation on national minorities to
take up cultural autonomy and e ven if they wish to do so, the extent of the
owers is the subject of negotiation with each group.
38a2(2) of the Act on Cultural Minorities. The Russian community is the
largest of the national min orities and has an e xtensive network of schools
and cultural activities to service the needs of their community. “Cultural
autonomy in E ston ia –bane or boon for ind igeno us cu lt ur al sur vival” 21
January 2010 EESTI EDU article& artic leid
39a2(2) of the Act on Cultural Minorities.
40a4 of the Act on Cultural Minorities.
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments
autonomy, it is entitled to establish structures by which
decisions of government can be made and administered
about its culture, lan guage, religion and traditions. Th ose
institutions must be elected in a manner consistent with
the democratic processes of the country. The members of
the cultural community elect their representatives on the
basis of an electoral act which must be approved by the
national government. The national government may no-
minate a representative of the national electoral com-
mittee to ensure that democratic processes and the elec-
toral regulations of Estonia are adhered to by the respec-
tive cultural councils.42
A cultural council may establish regional and local of-
fices from where the interests of its members can be
served in various parts of the country.43 Cultural councils
for a specific community can therefore internally func-
tion in a federal way with their different regional offices
forming the national cultural council.
The autonomy arrangements of Estonia resemble the
autonomy arrangements of a federation or a decentralised
unitary arrangement where the powers of the constituent
units (in this case communities rather than territories) are
legally defined and protected.
The relationship between the national authorities and
the cultural councils has been d e scribed as follows:
“The task of the national au thorities is to provide leg al
guarantees, without interfering in each ethnic group or
individual’s right to decide for themselves in all matters
concerning preservation of their ethnic identity, cultural
traditions and mother tongue [52]”.44
The institutions established for the cultural minority
can take steps within the public field (in other words not
merely as a private organisation or a non-governmental
organisation) to promote and protect their language and
culture by way of education in their mother-tongue,
freedom to express themselves in their own language; the
protection and promotion of their customs and cultural
traditions. The language protection includes that the mi-
nority group may use their language in dealings with
state and local authorities in areas wh ere they cons titute a
The budget of a cultural council is made up of three
main sources namely government grants; taxes or mem-
bership fees from its members and grants from persons,
companies and counties of the minority group’s origin.46
A cultural council may be abolished by the national
government if the council requests it; if the numbers of
the community fall below 3000; if for two consecutive
elections the council has not been able to constitute an
electoral list that complies with statutory requirements;
or if less than half the number of persons on the electoral
list vote in two consecutiv e elections.
Estonia has arguably the most advanced and detailed
arrangements in the work for the establishment and ope-
ration of cultural councils. The cultural councils are, at
least in terms of the statutory framework, on par with
geographical regions and local governments in other de-
centralised unitary and federal arrangements.
6. Sami of Finland: Protecting Traditional
The Sami is a small, indigenous group in Finland and
number approximately 7500. Although their traditional
territories are situated in the north of Finland, they do not
form a majority in any part of Finland. Members of the
Sami are also found spread across in Norway, Sweden
and Russia which are their traditional areas of hunting,
fishing and living.
In Finland about 60% of the Sami live in their tradi-
tional areas with the remainder of about 40% reside in
other parts of Finland, including in the capital Helsinki.
In the areas where the Sami live they are fully integrated
in their residential patterns with the rest of the populatio n.
Territorial autonomy, even at a local level, would there-
fore not be to their benefit except for a few instances
where they live in sizeable concentrations at local levels
Although Finland is a unitary state, the decentralisa-
tion and consultation arrangements it has made for the
benefit of the Sami are instructive for purposes of this
In light of the dispersed living pattern s of the Sami and
their high level o f integration with the rest o f the popula-
tion, a combination of territorial and cultural autonomy
had to be devised to enable the Sami community to pro-
tect and develop their culture and in particular their lan-
“Culture” is given a wide expression by the Constitu-
tion of Finland as including the traditional livelihoods of
the Sami, fishing, hunting, the use of their language and
the promotion of their lifestyle.49
The Sami Language Act [54]50 is a key mechanism to
protect and promote the Sami language and culture
across the whole of Finland.
Some of the key provisions of the Sami Language Acts
are as follows: the right to use the Sami language in
41J. Petrone, “Estonian Swedes embrace autonomy rights” The Baltic
42a13(1) of the Act on Cultural Minorities.
43a11(2) of the Act on Cultural Minorities.
45a52(2) of the Act on Cultural Minorities.
46a27 of the Act on Cultural Minorities.
47Only one municipality in Finland has a Sami majority—Utsjoki. U.
Aikio-Puoskari and M. Pentikainen The language rights of the In-
digenous Sami in Finland (Universi t y of Lapland Rovaniemi 2001) 4.
48a121 of the Constitution of Finland.
Copyright © 2012 SciRes. BLR
Protecting Minorities on a Non-Territorial Basis—Recent International Developments 177
dealings with public authorities;51 promotion and teach-
ing of the Sami language;52 publication of Government
announcements in the Sami language if it affects the
Sami community;53 and registration as a Sami.54
More elaborate language rights exist within the Sami
An important obligation is placed on the state to make
available funds and resources to promote and protect the
Sami language.56
Finish legislation establishes the legal basis upon
which the Sami are identified. Firstly, self identification
which entails the su bjective expression s and intentions of
an individual to associate and be associated with the
Sami peop le and seco ndly, an obj ective e lement wher eby
the closeness of a person to the Sami community is de-
pendent on whether one or both of his/her parents spoke
the Sami language or one or both parents learnt Sami as
their first language.57
Membership of the Sami is therefore flexible and
“soft” around the edges. It is acknowledged that due to
the high level of integration of the Sami into the Finish
community, a flexible approach is required where their
status as citizens with equal rights are recognised while
at the same time special provision is made for the main-
tenance and development of their culture, language and
The Sami received its own elected representative body
(called the Sami Delegation) in 1973 [55 ]58 and the Con-
stitution of Finland recognises the right of the Sami to
“maintain and develop their own language and culture.”59
The Sami Delegation existed until the end of 1995 when
it was replaced by the Sami Parliament.60
The Sami Parliament, with its 21 elected members, has
a territorial and non-territorial jurisdiction. The core of
its jurisdiction is what is known as the Sami-homeland,
but its decisions about culture, language and education
are also applicable to the Sami where ever they live in
sufficient concentrations in Finland [56].61 Any Sami on
the Sami Electoral Register can stand for election in the
Sami Parliament and participate therein [57].62
The Sami Parliament does not have a formal legisla-
tive function although it is responsible to attend to the
interests of the Sami and to allocate the funds set aside
by the national Parliament of Finland, for specific pro-
jects to promote the Sami identity such as production of
language materials, interpretation services, pub lication of
books and teaching material, and other cultural needs.63
Reference to Sami “autonomy” when speaking about
the Sami Parliament, is therefore “somewhat mislead-
ing”,64 but the Sami Parliament does have autonomy in
the allocation of grants for purposes of the cultural de-
velopment of the community.
The main functions of the Sami Parliament are to give
advice to government institutions about matters that af-
fect the Sami and to allocate and administer the grants
awarded to the Sami People.65
An important influence of the Sami Parliament lies in
the statutory obligation of the na tional, regional and local
authorities in Finland to negotiate with the Sami about
matters that affect their lives.66
The obligation to negotiate requires from public au-
thorities to “negotiate with the Sami Parliament in all
far-reaching and important measures which may directly
and in a specific way affect the status of the Sami as an
indigenous people” in regard to the following matters:
community planning; management of public lands; mi-
ning; culture; teaching and education of and in Sami lan-
guage; and any other matter that impacts on the status of
the Sami language and culture.67
Failure by a government institution or authority to ne-
gotiate, does, however, not affect the legal validity of a
decision or legislation.68 The criticism is therefore often
heard that the duty to negotiate does not have sufficient
Although the Sami Parliament does not have a veto
over decisions that may impact on them, the procedural
rights and obligations for negotiation are substantial
In practice the Sami are given an opportunity to attend
and address committees of Parliament; public authorities
are aware that the obligation to “negotiate” requires more
than to “consult”; and administrative decisions have been
49a17 of the Constitution of Finland.
50Act on the Use of the Sami Language when dealing with Authorities
(Finish Official Gazette SSK 8/3/1991).
51aa1, 4-6 of the Sami Language Act.
52Chapter 5 of the Sami Language Act.
53aa8 and 9 of the Sa mi Language Act.
54a7 of the Sami Language Act.
55Chapter 3 of the Sami Language Act.
56a31 of the Sami Language Act: “An appropriation shall be included in
the State budget f or purposes of State support to m unicipalitie s, parishes,
herding cooperatives within the Sámi homeland and private entities
referred to in section 18 for covering the specific additional costs o
applying this Act.”
57Finish Official Gazette SSK 17/7/1995/974.
58U. Aikio-Puoskari and M. Pentikainen The language rights of the
indigenous Sami in Finland—under domestic and international law
(Annex 1 Univer sity of Lapland 200 1).
59a17 of the Constitution of Finland.
60Finnish Official Gazette SSK 17/7/1995/974.
set aside due to a lack of negotiation [59].70
The Sami language can be used in the area known as
61M. Tkacik, “Characteristics and forms of autonomy” (2008) Inter-
national Journal on Minority and Group Rights (15), 375.
62L. Hannikain en, “Autonom y in Finland: The territori al autonomy of the
Aland Islands a nd the cultu ral auton omy o f the indigenous Sam i People”
(2002) Baltic Yearbook of International Law (2), 189.
63Aikio-Puoskar i and Pentikainen, 200 1 , 187.
64Aikio-Puoskar i and Pentikainen, 200 1 , 24.
65a8 Act on the Sami Parliament no 731/1999.
66a9 Act on the Sami Parliament.
67a9 Act on the Sami Parliament.
68Aikio-Puoskar i and Pentikainen, 200 1 , 25.
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments
the Sami homeland as well as in certain other regional
and local areas where the Sami live.71 Members of the
Sami community may also, where practicable, engage
with authorities in the Sami language.72 In the Sami
homeland public notices and signs must also be in the
Sami language. The Sami Parliament is responsible for
the production of materials for educational and public
use to promote the Sami language.
7. Slovenia: Local Government and Cultural
In Slovenia the right to self-governance of two national
minority communities, the Italian and Hungarian com-
munities, is recognised.73
The right of self-governance comprises a combination
of local self government and cultural autonomy, with
municipalities being the basis of self-government.74 In
areas where these communities live, special municipali-
ties are formed to accommodate their living patterns and
to give effect to their special rights.75 Each municipality
that is ethnically diverse, must establish a commission on
ethnic issues to consider the interests of the minority
communities within its area.76
A municipality may, within the area of its jurisdiction,
establish a “narrower section” so as to give particular
attention to the rights of minorities.77 Such a sub-section
may recommend to the municipality specific regulations
that are of relevance to the commu nity.78 The sub-section
may have specific powers and also has a separate legal
persona from the main municipality so as to represent th e
interests of its residents.79
The two communities have the right to mother-tong ue,
state funded education; the right to establish media and
publishing; and to develop and maintain links with their
countries of origin.80
The Constitution provides that the communities are
entitled to establish “autonomous organizations in order
to give effect to their rights” and, in addition, that the
State may authorize these autonomous organisations to
undertake State-functions that would normally be within
the responsibility of the State.81 The communities can
therefore be clothed with formal powers o f g overnm e n t.
These community-bodies have a public law and gover-
nance function in contrast to other community organisa-
tions that serve their members under civil law for pur-
poses of social activities.82
The state may decentralise to such community organi-
sations powers and functions to fulfil. The state must, if
it decentralises, also provide funds and “moral support”
for the discharge of the functions.83
The powers of the self-governments are wide ranging
from consultative to consent powers, including autono-
mous decision making over matters that directly affect
the respective communities.84
Each of the two communities has, for the local areas
where they live in a mixed pattern, its own voters roll on
which only members of the community may be Regis-
tered.85 The official language of the communities where
the two communities live, is Italian and Hungarian re-
The Self-Governing Ethnic Communities, as they are
called, are “public legal entities”87 which means they
have a different status from mere private associations
that tend to the interests of its members. As a “public
legal entity” the Communities have the status o f a “gove-
rnment” and the decisions are legally enforceable under
public law, and not as a mere contract under private law.
Any law or regulation that affects the constitutional
rights of either of the communities, can only be passed
with the support of the community.88
The key institutions for the two minorities are the
self-governing, cultural associations. It is from these in-
stitutions that the detailed arrangements for local gove-
rnments originated. Komac emphasises that, regardless
of the local government arrangements, the “self-gover-
ning ethnic commun ities remain, on the basis of the con-
stitutional provisions and the appropriate laws, the only
legal partner in the process of dialogue between the eth-
nic communities and the State [60].”89
69The limited powers of the Parliament has been criticised as being more
of a “policy” nature than a legislative forum. K. Myntii, “The Nordic
Sami Parliaments” In: P. Aiko and M. Scheiden, Eds., Operationalizin
the right of indigenous people to self-determination (Abo Akademi Uni-
versity, Abo, 2000), 203-221
70M. Scheinin, “The right to enjoy a distinct cultu re: indigenous a nd com-
eting uses o f lan d ” I n: T . S. Or lin, A. Rosas and M. Scheinin, Eds., The
urisprudence of human rights law: A comparative interpretative ap-
roach (2001), 159-222.
71Act on the Use of the Sam i Language befo re Authorities No. 1201/1991
as amended by Act no 1728/1995.
72a17 of the Constitution of Finland.
73aa3 and 5 of the Constitution of Slovenia.
74a2 Law on Self-Governing Ethnic Communities Official Gazette no
73/93 as amended
75a5 Law on Self-Governing Ethnic Communities.
76a39 Law on Self-Governing Ethnic Communities.
77a18 Law on Self-Governing Ethnic Communities.
78a19a Law on Self-Governing Ethnic Communities.
The thorny question that often confronts non-territorial
solutions is how to determine who belongs to a commu-
nity and who does not?
In Slovenia the Constitutional Court has found that it
is not primarily the decision of the individual that deter-
79a19c Law on Self-Governing Ethnic Communities.
80a64 of the Constitution of Slovenia.
81a64(3) of the Constitution of Slovenia.
82a145 of the Constitution of Slovenia.
83a64 of the Constitution of Slovenia.
84Korhecz, 2002: 175.
85a39 Law on Self-Governing Ethnic Communities and
aw on the
ecords of Voting Rights No 46/1994.
86a11 of the Constitution of Slovenia.
87a2 Law on Self-Governing Ethnic Communities.
88a64 of the Constitution of Slovenia.
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments 179
mines membership of a minority, but rather whether such
individual is accepted by the community.90
8. Kosovo: Community Rights i n a D e e p l y
Divided Society
An integral part of the democratisation process in Ko-
sovo, after many years of conflict, is the recognition of
“community” rights.
“Community” is defined by the Constitution as “in-
habitants belonging to the same national, linguistic, or
religious group traditionally present on the territory of
The attempts to give effect to minority protection were
strongly supported by the internation al community an d in
particular the United Nations through its Special Envoy
in Kosovo, Martti Ahtisaari.
The recognition b y the United Nations and the in terna-
tional community that n on-territo rial arrang ements h ad to
be made in order to ensure peace and stability in Kosovo,
is a major step forward in giving the techn ique cred ibility
and legitimacy for possible use in other situations where
the rights of dispersed minorities require protection.
A key element of the co mprehensive settlement in Ko-
sovo was the acknowledgement that non-territorial ways
had to be found to protect the rights and interests of the
communities. It was, however, also acknowledged that
community protection should not be constructed or con-
strued in a way that frustrates the ability of the majority
ethnic Albanians to effectively govern the country [61].92
The scheme developed for the protection of communi-
ties forms several layers and comprise of the following
five key el ements:
The first element is the binding Framework for Com-
prehensive Settlement formulated by Mr Ahtisaari.93 The
Framework sets out the principles upon which the set-
tlement had been reache d.
The second layer comprises the international conven-
tions that are directly applicable to Kosovo—for example
the Council of Europ e’s Convention for the Pro tection of
National Minorities is included in this layer and therefore
the Convention becomes part of Kosovo’s national law.
The third layer is the Constitution of Kosovo which
contains a chapter on commu nity rights.
The fourth layer is the “omnibus”94 Law on the Pro-
motion and Protectio n of the Rights of Communities an d
their Members in Kosovo.95 The Law on the Protection
of Minorities is entrenched and can only be amended
with the suppor t of the majority o f the community repr e-
sentatives in the Assembly.
The fifth layer is the reorganisation of local gover-
nment for the promotion of self-governance for the bene-
fit of communities that live concentrated in small, local
areas [62].96
The following are some of the key rights that are af-
forded to the respective communities pursuant to the
above scheme:
An individual has the right to chose if he/she wishes
to be treated as a member of a community or not.97
Individuals are protected against discrimination re-
gardless of their decision to belong or not to belong to
a particular community.
Members of minorities are protected against discri-
mination and a positive obligation is placed on the
state to assist communities to fully realise their
rights.98 This obligation of the state involves financial
and non-financial su pport to communities.
The right of members of communities to receive edu-
cation in their own language, to establish educational
institutions with the assistance of government, and to
have access to public broadcast facilities for the pro-
motion of their language and culture, is recognised.99
Minority communities receive guaranteed represen-
tation in the 120-seat national Assembly, with 10 seats
reserved for the ethnic Serbs and a further 10 reserved
for other communities.100
There is guaranteed representation of communities in
the national executiv e with one from the Serb and one
from the other communities appoin ted in cabinet.101
Representation of minorities in the judiciary and civil
Two deputy presidents are elected for the National
Assembly—one by the Serb community and one by
the other communities.103
The Committee on Rights and Interests of Communi-
93The first principle is that Kosovo “shall be a multi-ethnic society” and
secondly that Kosovo shall protect the rights of “all it Communities”.
aa1.1 and 1.2 of the Comprehensive Proposal for the Kosovo Status
94Weller, 2006/7: 497.
95Law no 3/L-047 sig ne d o n 13 March 2008.
96A Zeqiri, V Stephens and M Zhou “Implementation of the decen-
tralisation process in Kosovo: Challenges and perspectives” (2007/8)
uropean Yearbook of Minority Issues (7) 697.
97a57(1) of the Constitution of Kosovo.
98“The government shall particularly support cultural initiatives from
communities and their members, including through financial assistance.”
a48(1) of the Constitution of Kosovo.
99a59 of the Constitution of Kosovo.
100a64 of the Constitution of Kosovo.
89M. Komac, “Protection of ethnic communities in the Republic o
Slovenia” Institute for Ethnic Studies.
tor/butlletins/46 - 10.htm
90Decision 844 of the Constitutional Court, Official Gazette No 20/1998
1313. The cour t said as follows: “Ev eryone has the right to declar e their
belonging to their nation or ethnic community. However, in deciding
who is the beneficiary o f special rights...the wi ll of the ind ividual is not
decisive, rather legal criteria shall be established...membership in the
autochthonous Italian or Hungarian ethnic community is not a matter o
the will of the individual but the autochthonous community itsel[f].”
91a57(1) of the Constitution of Kosovo.
92M. Weller, “The Kosovo Constitution and provisions for the protection
of minor ities in E urope” (2 006/7) E uropean Yearbook of Minority Issu es
(6) 485-527.
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Protecting Minorities on a Non-Territorial Basis—Recent International Developments
ties has the right of veto of a draft law that is classi-
fied as of “vital interest” to them.104 Such laws of vi-
tal interests are for example—laws changing or abo li-
shing municipal boundaries; laws on the use of lan-
guage; laws on the protection of cultural heritage and
religion; and laws on education.105
A Community Consultative Council106 is established
with the function to advise the President on matters
affecting the communities.107
Expanded autonomy is given to local governments
where minority communities constitute a majority,
particularly for the Serb community.108 For example,
local governments with enhanced powers may have
responsibility over matters such as appointment of
local public officials such as police, rights in edu-
cation, secondary health care, cross-border coopera-
tion with other local governments and raising of re-
Special rights of minority communities are protected
in local governments where a minority community
constitutes 10% or more of the population.110 The lo-
cal governments derive their powers on the basis of
subsidiarity which enhances the principle of non-in-
terference by higher authorities and local autono-
Collective rights are recognised for the communities
as groups in addition to the rights of all indiv iduals. 112
The government may deleg ate to such community or-
ganisations functions as an agent of government.
A list of the names of communities that receive au-
tomatic protection are listed in the Act,113 but the doo r
is left open for other communities to also qualify for
9. Conclusions
The following observations can be made in conclusion
about the protection of dispersed minorities by way of
non-territo ri al , aut o nomy arrangem ent s:
Finding practical and sustainable solutions for the pro-
tection of dispersed minorities, in particular ways to grant
such minorities collective rights of autonomy in addi-
tion to their individual rights, remains one of the major
challenges to democratic theory and practice. The em-
phasis of territorial dominance as the only viable op-
tions for granting autonomy to minorities, in effect en-
courages competition for territorial control; causes on-
going demands for more regions; facilitates discrimina-
tion at regional levels against other minorities; justifies
expulsion of non-members from regions and local areas;
and creates a basis of other discriminatory practices and
even secession.
It is widely accepted that territorial solutions do not
necessarily suit the situatio n of all minority communities.
One can therefore endorse the observation of Weller when
he concludes after taking account of recent develpments
at international and state constitutiona l law:
“Minority consultation can no longer be achieved
through the establishment of a single mechanism.
Instead, each state needs to consider, in cooperation
with minority representative groups, a spectrum of
measures needed to be taken to ensure effective par-
ticipation through consul ta tive m echanisms [63]”.114
It has been shown in this article that governmental
powers and functions can be decentralised to a legal en-
tity acting on behalf of a cultural community on a non-
territorial basis. Whereas the jurisdiction of territorial
arrangements are directed to a geographical area, the juris-
diction of cultural autonomy is directed to a legal entity
acting on behalf of the members of the cultural commu-
nity regardless of where they reside. The typical func-
tions that may form part of cultural autonomy are aspects
of education, language, culture, historic days, symbols,
monuments, media, public signage and literature.
The legal framework for cultural autonomy can be set
out in the Constitution or in a special Act of Parliament.
In the same way that geographical federal arrangements
are set out in the Constitution, cultural arrangements can
only be guaranteed in the Con stitution thereby giving th e
legal framework a strong federal-flavour.
The definition of a “minority” is one of the major ch al-
lenges to overcome on the way to develop and implement
cultural autonomy arrangements. Developing a clear de-
finition for “minority group” in a particular country is
101a96 of the Constitution of Kosovo.
102a61 of the Constitution of Kosovo.
103a67 of the Constitution of Kosovo.
104a78 of the Constitution of Kosovo.
105a81 of the Constitution of Kosovo.
106a12 of the Law on the Promotion and Protection of Communities.
107a60 of the Constitution of Kosovo.
108aa20-23 of the Law on Local Self Government.
109a3 of the Law on Local Self Government.
110a62 of the Constitution of Kosovo.
111a3 of the Kosovo Law on Local Self Government provides th at “public
affairs shall be dealt with as closely as possible to the citizens of the
municipali ty by the lowe st level of g overnment that is able to provide the
ublic services efficiently.”
112a5 of the Law on the Promotion and Protection of Communities.
113a64(2) of the Constitution of Kosovo.
mainly a question of fact. Some countries have opted to
name specific minorities for purposes of protection (e.g.
Estonia and Hungary), while others have set criteria for
114M Weller, “Minority consultative mechanisms: Towards best pra-
ctice” (2007/8) European Yearbook of Minority Issues(7) 37. For
example, the European Court of Human Rights has found that the
following “minority rights” are prote cted under European Conventi on on
Human Rights: right to engage in private activities such as freedoms o
expression, religion, non-discrimination and association; ac knowle-
dgement of existence of a minority group; right to use names and
surnames; public display of language; establishment of private media;
right to use language in cultural and educational activities and ins-
titutions; and right to protect and develop the minority group’s culture.
Copyright © 2012 SciRes. BLR
Protecting Minorities on a Non-Territorial Basis—Recent International Developments 181
any minority to register in order to obtain cultural auto-
nomy (eg the Russian Republic and Estonia). The chal-
lenges to define “minority” are not dissimilar to the ar-
duous process to demarcate and create new regions
within federations. In the same way that countries such
as India, Nigeria, South Africa and Ethiopia had to work
their way through the often difficult process of creating
regions and adjusting boundaries, the same can be done
with the recognition of minorities [64].115
The decision of an individual to take up membership
of a cultural council is a personal choice; it arises from
his/her right to freedom of association; it cannot be for-
ced upon a person; and no person should suffer any dis-
criminatory action in regard to his/her choice to asso-
ciate or not to associate with a group. This is a funda-
mental principle that derives from the protection of indi-
vidual rights and freedoms. No individual should there-
fore be obligated, for whatever reason, to belong to a
cultural council, to attend or utilise its services or to par-
ticipate in its activities.
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