2013.03.23.
A Dél-Tirol fővárosában élő Thomas Benedikter közgazdász és társadalomkutató terjedelmes, de igencsak tanulságos tanulmányát sorozatban közöljük. Minden szombaton megjelentetünk egy részt, élőlinkkel hivatkozva az azt megelőzőre. A magyar nyelvű fordítás elkészítéséhez önkéntesek jelentkezését várjuk!
1.3 The concept of autonomy
In the general legal discourse autonomy is generally taken to mean „self-government" or self rule, but the concept in the general political discourse remains highly ambiguous and problematic and academics too disagree on the precise content of autonomy, clearly distinct from related concepts as federalism, devolution and regionalism. In international law autonomy does not have any general accepted definition. Many applications of autonomy or self-government do not allow a firm definition of autonomy which is appropriate to all cases. The term autonomy derives from two Greek words: „auto" means self, and „nomos" which means law or rule. To make one's own laws is therefore the basic significance of „autonomy", whereas a mere local self-administration would not deserve to be labeled as „autonomy".
Generally in the field of minority rights autonomy denotes „limited self-rule", which can range from self-government in limited areas to complete self-rule just short of independence. A particular autonomous entity can enjoy a different degree of autonomy in its political decision making process. Autonomous areas in most cases are regions of a state which possess some ethnic or cultural distinctiveness, which have been granted separate powers of internal legislation and administration, without being detached from the state. This status can be granted by some international binding upon the central authorities, but must not. As a general rule autonomous territories do not possess any international personality and are not treated as states for the purposes of international law. Autonomy can be defined as a means of power sharing aimed to preserve the unity of a state, while respecting the differences among the population [ 2 ]. There are the three classical elements of the definition of a state although in a different manner: a territory (part of a state territory), a population (the resident inhabitants of that territory) and the exertion of state power (limited to a certain territory which remains a part of that state). Autonomy thus consists in transferring permanently as many powers as possible to a certain territory, giving their population the possibility of self-government, and leaving just some residual general competencies to the central state.
Distinction should be made between general or political autonomy and cultural autonomy. While the form of a autonomy is generally granted in response to the demands for political self-administration or self-government, the latter is granted to enable an ethnic or cultural minority community to respect its customs, practices, languages, religion, social structures from interference on the part of the central or sovereign government.
Territorial autonomy in a proper sense not only encompasses administrative powers of local bodies, but requires the existence of a locally elected legislative body with a minimum power to legislate in some basic domains as well as an elected executive which implements this legislation in the given autonomous area. In practice not every form of autonomy, which carry this label is consistent with the criterion of „democratically elected autonomous bodies", as the concerned region is a part of a non democratic state. However the local population and national minorities have to be allowed to participate in the management of the affairs of the territory in which they live, although „autonomy" in a proper sense is not fulfilled (democratic legislation is not allowed). In these cases we can speak about „autonomy based sub-state arrangements", as it is the case, e.g., in China. According to Ruth Lapidoth and Christoph Pan/Beate S. Pfeil [ 3 ] three types of autonomy can be distinguished:
a) Territorial autonomy
Territorial autonomy is an arrangement aimed at granting to a group that differs from the majority of the population in the state, but that constitute a majority or a significant part of a specific region, a means by which it can express its distinct identity. The powers transferred are exercised by locally elected representatives. Territorial autonomy is to be understood as a special status granted to a territorial unit which makes it possible for the residents of that territorial unit to regulate their own affairs by themselves through autonomous legislation, government, administration, and judiciary. A claim to sovereignty is not linked to it. The autonomous authorities are to be precisely established in the laws of each state. Territorial autonomy must fundamentally include those areas of competence which are necessary for the national minority to maintain its cultural identity, such as:
– an educational system, including higher education (such as universities), which respects the values and needs of the national minority in question;
– cultural institutions and programs;
– radio and television and other communication means;
– the display of their own emblems;
– participation in the settling of the issue of dual citizenship, where applicable;
A second field of powers needed to ensure the functioning and welfare of the autonomous entity refers to its social and economic regulations, such as:
– the use and control of natural resources;
– the licensing of professions and trades;
– taxation for the purposes of the autonomous area;
– health care and social services, including social welfare;
– transportation such as local roads, ports and airports;
– production of energy;
– environmental protection;
– control of commercial and savings banks and other financial institutions;
– local and regional police.
These standards have been formulated at a comparatively high level in accordance with some cases of currently existing autonomy, such as in Aland and in South Tyrol, and at first glance they are capable of evoking surprise. In this respect, however it should be taken into consideration that the minimum level of autonomy is that degree which is necessary for the preservation of the existence and identity of a national minority, while the optimum is represented by as much as autonomy as possible without endangering the territorial integrity of the state. In any case is has to be taken into consideration that in the case of territorial autonomy, those segments of the population which form a case of territorial autonomy, those segments of the population which form a numerical minority within the area affected by the territorial autonomy are not discriminated against in the enjoyment in their generally recognized human rights and fundamental freedoms.
b) Cultural or personal autonomy.
Cultural or personal autonomy is granted to the members of a specific community (ethnic, religious, linguistic). This model of autonomy, which provides for the members of an ethnic community to be governed through institutions and/or their own legislation, allows minorities a significant degree of autonomy and cohesion even when minorities are dispersed throughout the territory. In contrast to territorial autonomy, in cases of cultural autonomy the autonomous special status is granted not to a unit of area for the looking after of own matters, but rather to a group of persons which constitutes a form of union that is suitable as possible under public law. This for of autonomy, then, is appropriate when national minorities do not form the majority of the population in areas in which they reside or when national minorities, for whatever reasons, do not consider the claim for territorial autonomy to be of use.
It is important that an association of persons provided with cultural autonomy is sufficiently democratically representative, that is, that it concludes at least a substantial part of the persons belonging to an affected national minority and that the autonomous authorizations are carried out by freely-elected democratic organs. Autonomy by this concept is not necessarily linked to the protection of ethnic minorities. The spirit of autonomy provides for minorities and indigenous populations the possibility of moving towards „meaningful internal self-determination and control over their own affairs". [ 4 ]
c) Local autonomy (local self-administration)
By means of local autonomy, residents of an administrative unit are guaranteed the possibility of looking after their own (national minority-related) matters themselves beyond the responsibilities that are normally legally assigned to the administration unit and in particular those matters which essentially lie exclusively or predominantly in the interest of the local community.
Whatever the nature of autonomy may be, three are no fixed rules in international law regulating the establishing and application of autonomy within the domestic framework. There is still no given or uniform pattern of how to design a territorial autonomy. Each operating autonomy has been created under specific political and social circumstances, evolving from a very specific historical background. The particular form of autonomy depends on various variables: the ethnic majority, the preparedness of the majority to grant autonomy, the presence of a kin-state, the size, the influence of the ethnic minority, the general international environment and some others. Although there is a wide range of constitutional arrangements and legal forms of autonomies, there are also some basic common features which define the presence of a „territorial autonomy", clearly distinct from other concepts like a federalist order or a simple administrative decentralization:
– Executive and legislative competencies transferred by law (international, constitutional or national law) to the autonomous entity (judicial powers are sometimes given, but not essential feature of a political autonomy.
– A clearly defined territory, whose population is subject of the autonomy
– The need of a negotiation process between the concerned autonomous subject and the central government, if the autonomy is to be modified. This means some legal forms of entrenchment of the autonomy and the ways how it can be changed.
In the comparative analysis we will define some basic criteria in order to valuate the quality and performance of an autonomy which allows a critical view of the single working autonomies. There is a huge difference between the content and comprehensiveness of the autonomy of Corsica on the bottom and the Aland Islands, Greenland and the Faeroe on the other end of the ranking. From a historical perspective the state practices with implementing autonomy solutions has been mostly reluctant and restrictive while ethnic minorities were pressing for an amount of power as complete as possible in the hand of the autonomous entity. The existing 1o European systems of territorial autonomy present some interesting and important examples which have been forerunners for similar arrangements in other continents. But even they are to be seen as works in progress rather than definitely and forever settled frameworks of political action.
(to be continued) Bolzano/Bozen, 19. June 2006
A témához kapcsolódik:
