The Legal Dimension of Territorial Autonomy: Key Features and Implications

Sergiu Constantin

Institute for Minority Rights of Eurac Research

The concept, scope and design of territorial autonomy (TA) remain subjects of debate among constitutional lawyers. Yet, in practice, there are numerous examples of autonomous regions in various countries around the world. A comparative examination of autonomy arrangements reveals that the success or failure of a TA arrangement hinges on the interplay between its political, legal and institutional dimensions. Well-functioning TA arrangements have solid political foundations built on negotiation, compromise and mutual trust, a stable yet flexible legal architecture, and a superstructure composed of effective institutional mechanisms of conflict resolution, consultation, cooperation and coordination.

The establishment or reform of a TA arrangement is the outcome of hard-negotiated compromises between political elites representing majority and minority groups at the central and sub-national levels. The political process is successful when the parties enter negotiations in good faith, and give up their incompatible goals and maximalist claims. The whole process can be easily derailed by the perceived unwillingness of some political actors to engage in constructive dialogue or by excessive politicization of negotiations for short-term political gains. TA is not a panacea and is not a static system. Examples such as Aland Islands, South Tyrol, and Greenland show that well-functioning TA requires permanent maintenance work, periodic assessments, and updates or adjustments.

While many instances of TA are established with the aim of protecting a certain minority group, successful political processes lead to the development of inclusive self-government arrangements. In the words of the OSCE High Commissioner on National Minorities, such examples of TA “reflect the views of all the communities settled in the concerned territory (…) and respect the human rights of all persons, including of minorities, within their jurisdictions.” The system of internal diversity governance of these instances of TA takes into consideration the heterogeneity of their population. For instance, the autonomy arrangement of the German-speaking Community in Belgium (i.e., Ostbelgien) follows an inclusive approach and provides the French-speaking residents with so-called language facilities. French speakers, who are de facto a small linguistic minority within Ostbelgien, may also use, in relations with the administration and in education, their mother tongue. Taking another example, the autonomy statute of Vojvodina provides for the official use in provincial bodies of five minority languages alongside Serbian. It is worth noting that some examples of TA have evolved beyond their original purpose of protecting a certain group (e.g., South Tyrol).

I submit that the legal dimension of TA concerns three main aspects: the legal entrenchment and amendment procedures, the division of powers, and the legal protection by an independent judiciary. The type of legal entrenchment is crucial for the stability, protection and development of TA. In practice, TA can be entrenched differently. The Constitution or Statute/Act of constitutional rank provides strong legal entrenchment (e.g., South Tyrol), while a regular law of the national parliament or regional law of the parliament of the autonomous entity represents a weak one (e.g., Vojvodina). In between these two poles, there are various forms of entrenchment, such as a law with quasi-constitutional status (e.g., Aland Islands), a national regulation that may be amended only through a complex or special procedure (e.g., Gagauzia), or national/regional norms that require approval in a regional referendum (e.g., Basque Country).

The legal pillars of TA need a certain degree of built-in flexibility to facilitate the updates and adjustments required by new realities and societal challenges. Generally, in democratic states, both the central authorities and the autonomous entities have the right to propose amendments to the basic law providing TA, but no reform is decided unilaterally. The situation is different in countries with authoritarian regimes. Examples such as Tatarstan, Hong Kong and Karakalpakstan illustrate the precarious legal position of TA in non-democratic contexts.

The division of powers has a major impact on the relationship between the centre and autonomous entity. An unclear distribution of powers often results in a growing number of conflicts of competence between the two orders of government. However, too rigid a scheme for the division of powers may ossify the relationship between the central authorities and the autonomous entity, thus reducing their cooperation and affecting the development of TA in the long-term. The exclusive powers of the autonomous entity are often listed in its basic law and, for the sake of clarity, the Constitution contains a residual powers clause allocating unlisted powers to one of the two orders of government (e.g. South Tyrol, Basque Country). In some cases, powers are divided through a system of double enumeration of competences in the basic law of autonomous entity or in the Constitution, where one list delineates the powers of the centre and the other enumerates the powers of the autonomous entity (e.g., Quebec, Aland Islands). A list of concurrent powers introduces a certain degree of flexibility in the legislative process, provided that the centre and the autonomous entity regularly consult and cooperate. However, significant competence overlaps between the two orders of government and disagreements on the specific content of concurrent powers increase the risk of conflict of competences.

The highest court in the country (i.e., the Constitutional Court or the Supreme Court) plays a vital role in ensuring the proper functioning of the autonomy system in line with the constitutional framework. In addition, this independent and impartial court has a role to play in protecting TA against unjustified or illegal interference from the central government. To give an example, the Indian Supreme Court had recently begun to conduct hearings of the petitions challenging the Indian government’s 2019 decision to revoke the autonomy of Jammu and Kashmir. In some cases, special selection and appointment procedures for judges ensure the representation of the autonomous entity at the highest level of the judiciary (e.g., Quebec). Besides the symbolic representation, the presence of these judges guarantees that the highest court has expertise on the rules and regulations of the autonomous region.

Within countries with fully-fledged TA, there are various institutions and mechanisms for conflict resolution, consultation and/or co-decision. Some autonomous entities make use of specially designed dispute resolution mechanisms that combine political and judicial features. These joint bodies, composed of an equal number of political representatives from the centre and autonomous entity, are tasked with solving potential conflicts of competence before they reach the high court. If the political body fails to find a solution, the question is then decided by judges (e.g., Greenland, Basque Country). Most autonomous entities have institutions and mechanisms for consultation and/or co-decision, ranging from joint expert bodies to (suspensive and/or absolute) veto powers. It is worth noting that the role and responsibilities of consultative bodies may evolve over the years. The Aland Delegation and the Commission of Six in the cases of the Aland Islands and South Tyrol respectively, are illustrative examples in this regard. Currently, these bodies not only have a say in the decision-making process, but also contribute greatly to the legislative development of their respective autonomous systems. The centre and the autonomous entity have equal representation in these expert bodies despite the significant differences between them in terms of territorial and population size.

All in all, a successful TA operates as a dynamic system of territorial and diversity governance underpinned by the commitment of relevant political elites, effective legal frameworks, and robust institutional mechanisms.

This blog post is a result of a workshop of the network of scholars of territorial autonomy initiated by the Åland Islands Peace Institute. The network first met and discussed ‘The Many Faces of Territorial Autonomy’ at a workshop in Berlin, convened in cooperation with the Finland Institute in Berlin. The blog symposium is hosted by the IACL Research Group on Constitutionalism and Societal Pluralism: Diversity Governance Compared.

Sergiu Constantin is a Senior Researcher at the Institute for Minority Rights of Eurac Research and a member of the IACL Research Group on Constitutionalism and Societal Pluralism: Diversity Governance Compared. He is one of the managing editors of the online compendium Autonomy Arrangements in the World.

Suggested Citation: Sergiu Constantin, ‘The Legal Dimension of Territorial Autonomy: Key Features and Implications’ IACL-AIDC Blog (28 September 2023) https://blog-iacl-aidc.org/territorial-autonomy/2023/9/28/the-legal-dimension-of-territorial-autonomy-key-features-and-implications.