1 Emergent Instruments for the Accommodation of Diversity in the Global North
The present chapter aims to show how variegate and evolving the Law of diversity is in contemporary times. In particular, the focus will be on emerging and innovative forms of autonomy, whose distinctive feature is the divergence from the consolidated autonomous models that stem from the liberal-democratic tradition.
These innovations – mainly taking place in the Global North1 – appear to lack comprehensive recognition or conceptual framing. This chapter intends to address this deficiency. It will do this firstly by recognizing these instruments as some of the most innovative tendencies of the Law of diversity. Secondly, it will propose to frame these developments as part of a broad federal phenomenon, which provides solid theoretical tools to better understand them and explain their functioning.
2 Emerging Governance Forms of Autonomy
2.1 A Shift towards Governance
The expression “governance forms of autonomy” is meant to encapsulate various types of self-governance, which are differentiated from the classic structure of territorial and non-territorial autonomy. The latter, as instruments for the accommodation of diversity, are marked by the following characteristics: a. they are based on the top-down institution of public bodies to which are attributed or delegated wide or general competences; b. those bodies are vested with administrative and legislative functions; c. they are entrenched in the legal system of a country through constitutional provisions or statutes; d. they are designed to protect the interests of a specific minority: in territorial arrangements, the minority is turned into a majority in a given territory, while in non-territorial ones the minority “owns” the institution; consequently, e. they have been created for security and/or protection reasons;3 f. ultimately, their functioning resonates with nation-state logic as they represent the state in small-scale.4
All the types of autonomy addressed here deviate from this structure to different extents and complement the traditional approaches regarding the issue of autonomy in diversity accommodation. For this reason, the expressions “non-orthodox”, “non-governmental” or “governance” forms of autonomy may be employed to describe them.
2.2
It has been observed that, in this epoch, several kinds of governance bodies along the public-private divide complement the state in the provision of services and functions that were once exclusively managed by public structures.5 Notably, some authors have pointed out that the same phenomenon is taking place in the area of diversity accommodation, as flexible and less institutionalized forms of autonomy are emerging. One of them has been referred to as functional non-territorial autonomy.6 Focusing on this form of non-territorial autonomy and theoretically framing it as such enables a better understanding of how broad the universe of tools for the accommodation of diversity is, beyond the most consolidated and top-down, hard, defensive and paternalistic models.7
Functional autonomy is the outcome of bottom-up processes whereby private organizations are created to cooperate with the state in the provision of services in favor of a non-dominant group.
In practice, functional non-territorial autonomy may assume several forms and take place through “informal mechanisms, such as dialogue mechanisms, specific management agreements, ad hoc and footnote budgeting, specific programming, or public-private partnerships”.8 The areas in which functional autonomy operates are varied and include education and culture, politics, media, medical care, and economic and social support.
Interesting cases of functional non-territorial autonomy can be found in South Africa – related to Afrikaners’ self-governance9 – and, to a certain extent,
However, one of the most interesting – and by far the most structured – examples is located at the border between the German Land of Schleswig-Holstein and the regions of Southern Denmark, which serves the interests of, respectively, the Danish and German minorities.12
Functional non-territorial autonomy seems to emerge as a very flexible tool for the accommodation of diversity. Less institutionalization does not imply legal irrelevance. In this case, law is much less direct and “hard”, but not less significant to the functioning of the model. Similarly, autonomy is much less institutionalized but not less functional. Moreover, and most importantly, such autonomous arrangements appear to be potentially very inclusive, in the sense that state legal recognition does not seem to be a precondition for the exercise of self-governance instruments. Hence, the groups potentially using them are not limited to traditional minorities.13 In addition, the peculiar private form of the functional non-territorial autonomous arrangements allows them to operate regardless of existing political boundaries, including international ones.
The rights of the minorities enjoying this form of autonomy are much more proactively practiced than legally recognized and their exercise flows from active involvement in legal systems where horizontal subsidiarity is encouraged or at least admitted. Interestingly, state support for minority activities and institutions is not lacking. This creates a form of horizontal cooperation – resonating with the concept of subsidiarity – which is in the interest of both parties. In any case, the public legal frameworks serve a significant function as
2.3 Institutional Completeness and Administrative Autonomy in Canada and Beyond
Institutional completeness is an expression that has been recently used to describe forms of self-governance in Canada. The concept emphasizes the relationship between the endurance of a community and the existence of a manifold set of non-governmental institutions that operate in its interest in various sectors.
The expression was coined by the sociologist Raymond Breton in a study that delved into the forms of integration of ethnic communities.16 The analysis revealed that the integration of immigrant communities is directly influenced and shaped by their institutional completeness, i.e. the extent to which those communities have created their own formal and informal organizations operating in numerous areas, such as religion, welfare, information, and culture. More importantly, Breton demonstrated how the degree of institutional completeness – i.e. the extent to which ethnic institutions exist and are stable – has a direct impact on a given community’s survival and endurance.17 The notion was subsequently used by the sociologist in regard to the francophone minority communities (fmcs) in Canada (outside Québec) and the dynamics of their integration.18
Chouinard has demonstrated that this concept has been increasingly employed by courts in Canada to recognize forms of autonomy in the provision of services that favor fmcs in several areas, and in particular in the realm of education and health services.19 Her studies have illustrated that the courts – and, gradually, the Legislatures – have increasingly recognized the importance of self-managed organizations delivering services in French to ensure the preservation of this minority group. In addition, Foucher and Bourgeois have provided an overview of the vast array of autonomous arrangements for the fmcs that have emerged in Canada, referred to as forms of sectorial (or administrative) autonomy by the authors.20
Regardless of the different categorizations employed, all the accounts have essentially drawn attention to the same phenomenon, namely, the creation of public or private-public autonomous arrangements that do not correspond to traditional – and more frequently discussed – state-like autonomies (be they territorial or non-territorial). These instruments for the accommodation of diversity provide the targeted minority group with different degrees of self-governance over the institutions which deliver specific services – including but not limited to schools – in its favor.
Institutional completeness and sectorial autonomy take two general forms: the first consists of self-managed private institutions that cooperate with public structures, while the second – much more developed – involves the creation of public independent organisms governed by the non-majority group in certain administrative sectors. The main areas where institutional
It must also be noted that forms of private-public partnerships have emerged in several parts of Canada through agreements for the provision of some services between various levels of government and minority associations. Research in this area is very limited and focuses more on the evolution of the role of representative associations than on their actual powers and duties.21
The models of institutional completeness and sectorial autonomy are of clear interest and seem to add to the general theory on diversity accommodation. In this case, it must be noted that the legal framework has played a significant and active role in fostering the emergence of these autonomous arrangements, especially when it comes to the two major French-speaking communities outside Québec.22 Moreover, a notable element favoring the establishment of sectorial autonomies is the fact that French is an official language of the country (and of New Brunswick). Therefore, the French-speaking communities (partially) enjoy a legally recognized differential position in the constitutional system. In other words, “hard” legal frameworks concerning these communities are present, even if they are not considered national or traditional minorities.23
The tools analyzed here are forms of autonomy that shy away from the idea of a fully-fledged system of government and instead imply self-governance in a limited area that contributes to the minority’s survival. In turn, this contributes to relativizing the centrality of a rather univocal discourse over this topic in literature dealing with diversity accommodation.
2.4 Nested Federalism(s)
Nested federalism(s) is an expression that refers to complex governance structures where public and private bodies exert several duties for the sake of (generally indigenous) communities within the existent (generally) federal constitutional structure, without modifying its fundamental features.24 Put differently, there is evidence of the emergence of further layers
At the same time, such autonomous systems, which are to different degrees related to the notion of functional non-territorial autonomy, rely upon the basic logic of federalism. This is visible in the fact that they are based on agreements and compromise and take the form of modern treaties or agreements between state and (indigenous) groups.
Cases of nested federalism(s) have been found in Canada and Australia and all concern innovative forms of indigenous self-governance.
As regards the Canadian experience, the Inuit self-governance models of Inuvialuit, Nunavik and Nunatsiavut, all located in the Canadian Arctic, present the features of nested federalisms.25 While all have peculiar characteristics – not least as they are all are nested in and parallel to an unchallenged constitutional federal structure – the Inuvialuit is arguably the most fascinating case.26
The latter model is of specific interest in that it is not structured following a public autonomy model, but rather it is completely centered on private corporations that serve the needs of the relevant community. Indeed, the Inuvialuit Final Agreement (ifa) provides for a unique private governance structure nested within the Northwest Territories.
The case of the Noongar indigenous people in Australia has several similarities with the Canadian experience of nested federalism.27
In both cases, the peculiar nature of the bodies entitled to serve the community’s interests challenges the monolithic theoretical concept of autonomy
In fact, the authority exercised by these bodies is different from traditional state-like jurisdiction, typical of traditional versions of territorial and non-territorial autonomy. The focus here is on delivering services and redistributing wealth, with this implying a fundamentally practical approach to the issue of diversity accommodation that shies away from reproducing traditional liberal public forms of government and instead aims to employ flexible private instruments to achieve community survival and empowerment in every aspect of life.
The private or quasi-private status of the autonomous models seems to allow a high degree of flexibility and appears to be a pragmatic tool to manage the communities’ interests. At the same time, though the legal framework is not absent, it mainly offers a platform for negotiation and sealing agreements to create such forms of governance autonomy. In fact, besides the private-law nature of the corporations charged with the management of community interests, another notable element of this model is, in both cases, the centrality of negotiation. This implies an active role of the relevant communities as subjects in the definition of the rules governing diversity.
In addition, this model has been defined as holistic,28 in the sense that it implies a (peculiar) form of non-territorial self-governance which is designed to accommodate diversity by serving all the needs of the community and not only cultural ones. In other words, the private-body system seems to provide a model underpinned by a comprehensive view of the relevant community’s interests and suggests a strict interlinkage between cultural and socio-economic needs.
Furthermore, it must be noted that both forms of autonomy imply a different relationship between territory and the communities exercising powers over it, as well as a different conception of autonomous jurisdiction. Both are peculiar forms of non-territorial autonomy where a softer connection with territory is observable, as both provide services and activities that add to and do not exclude the action of governmental bodies. Therefore, it seems that rather than being a precondition for the achievement of autonomy, territory (and land rights) act as an avenue29 or extension for the exercise of autonomous powers.
The establishment of urban reserves is an emerging phenomenon occurring in Canada, whereby First Nations acquire ownership of lands outside their traditional reserves through special treaties called Treaty Land Entitlement Framework Agreements (tlefa). The most implemented examples of urban reserves are located in the Province of Saskatchewan, where a tlefa was adopted in 1992.30 The establishment of an urban reserve means attributing reserve status to portions of urban areas, with this implying the application of the same special regime in force in the indigenous homelands. This means, for instance, that those areas can be governed by bands under the Indian Act and subject to the same tax exemptions.31 At the same time, the management of an urban reserve is nested within the complex institutional framework of the cities and Provinces where it has been established and coexists with them.
The most interesting feature of this case concerns the relationship between territory and self-governance. Indeed, urban reserves constitute an interesting example of self- and shared governance, whereby the indigenous communities residing in cities are allowed to create and develop their own institutions, businesses, and services for their socio-economic and cultural survival and empowerment. The acquisition of land ownership (which in any case grants some additional advantages for the indigenous communities) allows them to exercise a rather flexible form of self-governance that consists of managing their institutions – from businesses to service-delivering bodies – in an urban setting and not on isolated reserves.
What is fascinating is that, as in the previous cases, self-governance is exercised through complex structures aimed at creating a non-isolationist ecosystem conducive to economic and cultural survival and self-sufficiency. Consequently, territory is not a fundamental precondition but an enabling
2.5 Revitalized Inclusive Forms of Territorial and Non-territorial Subnational Autonomy for Diversity Accommodation
A final category of autonomous arrangement that appears to diverge from the traditional employment of autonomy for diversity accommodation purposes – based on the idea that a national minority becomes a regional majority – is what can be referred to as “revitalized forms of subnational autonomy”. These arrangements exhibit an inclusive structure in that they are not premised on the reproduction of nation-state logic on a smaller scale. On the contrary, they are designed to embed and foster the expression of the many diversities that characterize their societies.
Such a model, which implies an inclusive revision of autonomy for diversity accommodation, has been encouraged by European international soft law and has increasingly drawn scholarly interest. In this sense, it has been pointed out that the model of subnational ethnic government based on “minority ownership” is limited in its ability to manage the growing complexity that characterizes several contemporary societies.34 This is also the case with complex regional multinational power-sharing systems, which go beyond models designed exclusively for the benefit of a single regional majority: they are confronted with the challenge of increasing diversity that originates from migration flows, and, in general, the rise of “others” that challenge the rigid structure of arrangements based on an ethnic distribution of power and ethnic representation in administration.35
A fascinating – though still evolving – case is represented by the experiment of democratic confederalism in the Autonomous Administration of North and East Syria (Rojava), which has elements of both territorial and non-territorial autonomy.37 However, this is still more of theoretical ideal-typical model than a fully implemented arrangement.
3 Can Federalism Contribute to Framing the Emergent Models for the Accommodation of Diversity?
3.1 Theoretical References: The Meta-Theoretical Approach to Federalism
This section argues that a federal standpoint could provide a promising standpoint to better understand and theoretically frame the governance forms of autonomy described above.
This perspective relies on the studies that have delved into the “meta-theoretical” dimension of federalism, in turn inspired, to a greater or lesser extent, by the critical contributions of some modern federal scholars.38
Federalism is intertwined and inseparable from its materializations, which form what one may call the “federal phenomenon”.41 The latter is multifaceted, with its concrete shape being affected by the cultural, political, economic, and philosophical contexts underlying the different epochs of human history and acting as contingencies of the federal theme.42 Accordingly, the state-related dimension of federalism as a form of government is considered to be one of the possible replications of the legal concept – or, one of the manifestations of the federal phenomenon – having a legal-constitutional significance.
The employment of the adjective “meta-theoretical” to describe the perspective adopted here is meant to suggest that federalism is taken at a more abstract level than a (conceptual or) theoretical one. It is used as a lens or a framework of understanding through which one may grasp the structure and functioning of several phenomena – especially those analyzed above – and consequently apply to them the federal wisdom that derives from federal theory and practice. A theoretical perspective, which would arguably imply analyzing federalism as a constitutional concept, i.e. as a specific form of government provided by a constitution,43 would limit the scope of the observation
As a result, not only does the meta-theoretical angle extend the scope of federalism as an analytical tool, it also broadens its potential as an inspiring method for the regulation of pluralism which embeds a large and varied “baggage” (or “wisdom”) made up of institutions and practices. Consequently, once an observed phenomenon is framed as part of federalism, it will be possible to apply “federal wisdom” to understand it and eventually draw practical lessons (stemming from federal theory and trends) related to its possible developments.
The latter perspective rests upon the idea that federalism has a far-reaching analytical scope. As a consequence, it claims that the traditional focus of legal and political federal thought could hinder the theoretical and analytical potential of federalism and thus act as an epistemological obstacle.
This theoretical proposal is capable of challenging the discussed basic epistemological assumptions underpinning the traditional focus of federal studies and seems particularly worthwhile for the present study. Several recent accounts seem to have endorsed this perspective and sought to overcome the state-centered vision expressed by the bulk of the scholarship on federalism,45 not to reveal its true nature, but to heighten its analytical potential and its ability to perform explanatory functions as regards a vast array of phenomena.
The meta-theoretical dimension of federalism is far from absent in recent research, but it has barely been structured or even recognized as a completely developed theoretical mode of inquiry. As there is no room for a thorough review of the relevant literature that has opened up the perspective advanced here and of its (alleged) authors,47 the analysis will go on to explain in which sense applying a federal framing to the emergent models for the accommodation of diversity could be theoretically beneficial.
3.2 Federalism and the Federal Phenomenon: Why Another Definition Is Not Needed and How the Concept Can Be Theoretically Employed
If the proposed reading of federalism is accepted, then it seems that a federal framing can be employed with regard to phenomena that imply a total or partial diffusion of legal authority/power/autonomy in more than one center, having different degrees of public legal relevance (as a result of recognition or tolerance) in the same legal system. Therefore, if all the emergent instruments of the Law of diversity analyzed here can be read as peculiar forms of autonomous arrangements having a major governance dimension, there seems to be room for them to be framed through a federal lens.
To this end, one may perhaps use the concept of federal arrangement to describe the particular features that characterize the analyzed tools. This concept has already been used to describe forms of emerging federal structures that do not correspond to classic ones.48
Notably, a federal framing is not intended to describe the truly federal nature of these instruments, which seems inconclusive (and useless), but is the conceptual key to productively applying federal wisdom to them. In other words, considering a phenomenon as federal is a way to provide a structured set of tools to better understand it. Such a perspective has a significant
Accordingly, federal systems thus act as a “vanilla example” of pluralism and governance at work,50 i.e. a “simple” model of how a plurality of legal authorities and actors can be organized, how they interact and how their possible conflicts are regulated.
3.3 Federalism and the Law of Diversity: The Theoretical Potential of Federalism
This last section aims to propose some preliminary thoughts on the possible use of federalism to frame and explain emergent models for the accommodation of diversity. To this end, some themes related to federal theory and practice will be presented that may contribute to a better understanding of emergent models for the accommodation of diversity, and, among them, governance forms of autonomy.51
3.3.1 Negotiation and Asymmetry: A Federal Model for the Law of Diversity
It has been illustrated that the Law of diversity increasingly relies upon instruments based on promoting an active role for diverse groups in the regulation of
Concerning the organization of complex legal systems, federal theory and practice have illustrated the centrality of negotiation and compromise as founding elements as well as working instruments for the successful operation and evolution of composite state structures like federal systems.
Consequently, drawing from federal studies, one may presume the concept of negotiation and its operation will take an ever more central role in the evolution of the Law of diversity.
Furthermore, the Law of diversity is marked by a great deal of differentiation of legal solutions. Similarly, federal theory has progressively taken into account the evolution of federal structures and acknowledged a trend towards increasing asymmetry. This has, for several authors, always been, albeit to different extents, a feature of federal systems – especially in what are referred to as “holding-together” federal systems.52
In this sense, federal studies may be of help in that they provide structured models to regulate the increasing differentiation of legal arrangements while maintaining the unity of the state, and help understand all the concrete issues (like, for instance, the financial aspects related to the management of asymmetric systems) that are at stake when dealing with the creation of differentiated solutions for differentiated claims.
3.3.2 Complex Decision-Making Processes
All the cases studied above determine the addition of new layers of governance that continuously and variously interact with different public entities in very complex settings. Federal theory and the actual functioning of federal systems may contribute to promoting solutions for the improvement of the complex decision-making processes that take place in these settings and analyzing their functionality.
In this sense, the variety of the actors and the manifold dynamics that arise from these developments create a complex and intricate system of multilevel decision-making that may benefit if lessons are drawn from federal studies. The latter may provide inspiration for possible further regulation, or at least
Hence, given that federal theory has traditionally revolved around institutional analysis and intergovernmental cooperation, the rules and mechanisms that have been developed in and for federal systems, aimed at fostering coordination among various authorities, may contribute to identifying dynamics and designing solutions to problematic issues that can arise in the area of diversity accommodation. In this sense, complex “federal-like” settings such as the European Union may provide several models for the regulation of public and private actors’ involvement in policymaking, especially from a procedural point of view.53
3.3.3 Definition of Areas of Jurisdiction in Complex Policy Areas: Coordination over Division
Some recent publications on the functioning of federal systems have moved their focus to the issue of policy analysis from a legal perspective, studying the numerous actors involved in critical areas of regulation – such as environment, security, immigration and fiscal federalism – and their relationships.54 Accordingly, they have underscored how the reality of policy-making is far more multifaceted and composite than that provided for by rigid constitutional texts that allocate powers to different levels of government.
In a way, the Law of diversity may be seen as another complex policy area,55 where, especially as regards the most recent developments and instruments, a vast array of actors is involved in manifold ways. Thus, analysis of the operation of federal systems and their trends, such as the move towards coordination rather than separation of powers – which reached its peak during the recent coronavirus crisis – offers useful insights for the evolution of the Law of diversity and its governance means. Accordingly, it seems that the more
3.3.4 Conflicts of Jurisdictions: Trends and Tools for Their Resolution
The approaches of federal systems towards possible conflicts of jurisdiction among different authorities and the tools developed for their resolution are another source of interesting insights to explain and possibly further regulate the emergent instruments for the accommodation of diversity.
In this sense, two main issues arise. The first is a trend in federal systems towards the creation of increasing loci and mechanisms of dialogue and coordination among different authorities, especially after the coronavirus crisis.57 The second is the critical role played by the judiciary when the mechanisms of coordination do not work. Both issues may help analyze the recent developments of the Law of diversity: one would expect that the complex systems of governance stemming from its recent evolution would need to foster the creation of stable dialogic and cooperative mechanisms to help the collaborative management of diversity accommodation. And, if they are not implemented, one would expect an increase in jurisdictional conflict.58
This does not mean that the Global South is not showing very promising models in this area; especially the South American and Southeast Asian regions of the world display very interesting instruments for the accommodation of diversity that add to the traditional ones generally stemming from liberal-democratic constitutionalism; a renovated interest in this areas of the world is observable, together with a new decolonial approach; on this, see, for instance, Lena Salaymeh and Ralf Michaels, “Decolonial Comparative Law: A Conceptual Beginning,” Max Planck Institute for Comparative and International Private Law Research Paper Series 22, no. 1 (2022): 166–188 and Werner Menski, “Beyond Europe,” in Comparative Law: A Handbook, eds. Örücü, Esin and Nelken, David (Oxford-Portland: Hart, 2007), 189–216; the present chapter draws the attention on the innovative trends in the Global North, which appear to represent another strand of recent innovation in the area of diversity accommodation with its own features. Such innovations seem to be very unrecognized and undertheorized from a legal standpoint, given their peculiar forms and limited institutionalization; however, when useful, examples from Global South legal systems will be presented.
This chapter takes inspiration from a wider study on these models presented in Nicolò P. Alessi, A Global Law of Diversity: Evolving Models and Concepts (London-New York: Routledge, 2025).
Tove H. Malloy, “Functional Non-Territorial Autonomy in Denmark and Germany,” in Managing Diversity through Non-Territorial Autonomy: Assessing Advantages, Deficiencies and Risks, eds. Tove H. Malloy, Alexander Osipov and Balázs Vizi (Oxford: Oxford University Press, 2015), 184; on this, see also Marc Weller and Stefan Wolff, Autonomy, Self-Governance and Conflict Resolution: Innovative Approaches to Institutional Design in Divided Societies (London-New York: Routledge, 2005).
See Johanne Poirier, “Autonomie politique et minorités francophones du Canada: réflexions sur un angle mort de la typologie classique de Will Kymlicka,” Minorités linguistiques et société / Linguistic Minorities and Society, no. 1 (2012): 66–89.
On this, see Eva Sørensen and Jacob Torfing, eds., Theories of Democratic Network Governance (Basingstoke-New York: Palgrave Macmillan, 2007).
The most comprehensive study of these phenomena, which explicitly connected emerging forms of functional autonomy to the concepts of network governance and legal pluralism, is Tove H. Malloy and Levente Salat, eds., Non-Territorial Autonomy and Decentralization: Ethno-Cultural Diversity Governance (London-New York: Routledge, 2021), and esp. the introductory and final chapters. These, however, do not specifically use the expression “functional non-territorial autonomy”; this section follows the conceptualization offered by Tove H. Malloy, “Non-Territorial Autonomy: Traditional and Alternative Practices,” in Effective Participation of National Minorities and Conflict Prevention, eds. William Romans, Iryna Ulasiuk and Anton Petrenko Thomsen (Leiden-Boston: Brill-Nijhoff, 2020), 105–122, who significantly contributed to theoretically consolidating and giving conceptual clarity to the concept.
Malloy, “Functional Non-Territorial Autonomy,” 187.
Malloy, “Functional Non-territorial Autonomy,” 188.
On this, see Deon Geldenhuys, “Autonomy Initiatives of the Afrikaner Community in South Africa,” in Non-Territorial Autonomy and Decentralization: Ethno-Cultural Diversity Governance, eds. Tove H. Malloy and Levente Salat (London-New York: Routledge, 2021), 91–114; Bertus De Villiers, “Community Government for Cultural Minorities: Thinking beyond “Territory” as a Prerequisite for Self-government,” International Journal on Minority and Group Rights 25, no. 4 (2018): 576, where he described the case of the Helpmekaar Kollege msv (rf) operating in Johannesburg and providing education in Afrikaans: this private institution has been set up by the Afrikaans community and is entirely self-funded as it does not receive any government grant.
As for the UK, Kyriaki Topidi, “Faith Education in Britain,” in Non-Territorial Autonomy and Decentralization: Ethno-Cultural Diversity Governance, eds. Tove H. Malloy and Levente Salat (London-New York: Routledge, 2021), 215–239.
On this, see Steve Coleman and Éamon Ó Ciosáin, “The Irish Gaeltacht as a Trans-Local Phenomenon,” in Non-Territorial Autonomy and Decentralization: Ethno-Cultural Diversity Governance, eds. Tove H. Malloy and Levente Salat (London-New York: Routledge, 2021), 153–164.
On the features of functional autonomy in this border region, see Malloy, “Functional Non-Territorial Autonomy,” 183–204.
This expression refers to cultural, linguistic, religious or ethnic minorities, which have traditionally been the beneficiaries of minority rights ad instruments. As the instruments analysed here are all supposed to have a (at least potential) wider reach in terms of beneficiaries than traditional minority rights models, the terms “minority groups” or “non-majority groups” are used.
Malloy, “Functional Non-Territorial Autonomy,” 199.
Markku Suksi, “Personal Autonomy as Institutional Form: Focus on Europe against the Background of Article 27 of the iccpr,” International Journal on Minority and Group Rights 15, no. 2–3 (2008): 163.
Raymond Breton, “Institutional Completeness of Ethnic Communities and the Personal Relations of Immigrants,” American Journal of Sociology 70, no. 2 (1964): 193–205; see also Id., “The Structure of Relationships between Ethnic Collectivities,” in The Canadian Ethnic Mosaic, ed. Leo Driedger (Toronto: McClelland and Stewart, 1978), 55–73.
Breton, “Institutional Completeness,” 196–200.
Raymond Breton, “L’intégration des francophones hors Québec dans des communautés de langue française,” Revue de l’Université d’Ottawa 55, no. 2 (1985): 77–90.
See Stéphanie Chouinard, “The Rise of Non-territorial Autonomy in Canada: Towards a Doctrine of Institutional Completeness in the Domain of Minority Language Rights,” Ethnopolitics 13, no. 2 (2014): 141–158; Id., “Quand le droit linguistique parle de sciences sociales: l’intégration de la notion de completude institutionnelle dans la jurisprudence canadienne,” Revue de Droit Linguistique 3 (2016): 60–93; such a perspective was criticized by Rémi Léger, “Non-territorial Autonomy in Canada: Reply to Chouinard,” Ethnopolitics 13, no. 4 (2014): 418–427.
See Pierre Foucher, “Autonomie des communautés francophones minoritaires du Canada: le point de vue du droit,” Minorités linguistiques et société / Linguistic Minorities and Society, no. 1 (2012): 90–114; Daniel Bourgeois, “Administrative Nationalism,” Administration & Society 39, no. 5 (2007): 631–655; Id., “Territory, Institutions and National Identity: The Case of Acadians in Greater Moncton, Canada,” Urban Studies 42, no. 7 (2005): 1123–1138.
Foucher, “Autonomie des communautés,” 108.
On this, see Alessi, A Global Law, 153–155.
On the rather difficult systematization of the fmcs within the consolidated theoretical categories of minority rights law, see Poirier, “Autonomie politique,” 73–84.
The concept of nested federalism has been derived from Gary N. Wilson, Christopher Alcantara and Thierry Rodon, Nested Federalism and Inuit Governance in the Canadian Arctic (Vancouver: University of British Columbia Press, 2020), who, in turn, were inspired by Liesbet Hooghe and Gary Marks, Community, Scale, and Regional Governance: A Post-Functionalist Theory of Governance (Oxford: Oxford University Press, 2016).
On this, Wilson, Alcantara and Rodon, Nested Federalism, esp. 43–158; other forms of nested federalism, similarly stemming from modern treaties, have been established for the Nisga’a indigenous peoples in British Columbia and eleven First Nations in Yukon (Wilson, Alcantara and Rodon, Nested Federalism, 9).
The Inuit self-governance system is not the only emerging model of self-management occurring in Canada, as several other forms of complex governance have also arisen over the last decades; among them, Métis and francophone Franzaskois self-governance have also been described as innovative; on this, see Janique Dubois and Kelly Saunders, “ “Just Do It!”: Carving Out a Space for the Métis in Canadian Federalism,” Canadian Journal of Political Science / Revue canadienne de science politique 46, no. 1 (2013): 187–214; Janique Dubois, “The Fransaskois’ Journey from Survival to Empowerment through Governance,” Canadian Political Science Review 11, no. 1 (2017): 37–60.
On this, see Bertus De Villiers, “Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous Self-Government,” in Indigenous, Aboriginal, Fugitive and Ethnic Groups around the Globe, ed. Liat Klain-Gabbay (London: Intech Open, 2019), 127–157.
De Villiers, “Privatised Autonomy,” 145.
De Villiers, “Privatised Autonomy,” 132, indeed stated that land rights constitute an avenue to privatized autonomy for the Noongar people.
Already in 1988, the city of Saskatoon created the urban reserve of Muskeg Lake Cree Nation, which was the first case in Canada; on this, see Joseph Garcea, “First Nations Satellite Reserves: Capacity‐Building and Self‐Government in Saskatchewan,” in Aboriginal Self-Government in Canada: Current Trends and Issues, ed. Yale D. Belanger (Saskatoon: Purich Publishing, 2008), 240‐259.
On this, see Evelyn Peters, “Urban Reserves,” Research paper for the National Centre for first Nations Governance, August 2007, available at the following link:
Janique Dubois, “Beyond Territory: Revisiting the Normative Justification of Self-Government in Theory and Practice,” The International Indigenous Policy Journal 2, no. 2 (2011): 5–10.
On the concept of relational autonomy, which entails the need for complex, shared, or co‐operative forms of governance to manage diverse societies, especially in urban areas, see Michael Murphy, “Relational Self‐Determination and Federal Reform,” in Canada: The State of the Federation 2003: Reconfiguring Aboriginal‐State Relations, ed. Micheal Murphy (Montréal: McGill‐Queen’s University Press, 2005), 3‐35.
Francesco Palermo, “Owned or Shared? Territorial Autonomy in the Minority Discourse,” in Minority Accommodation through Territorial and Non-Territorial Autonomy, eds. Tove H. Malloy and Francesco Palermo (Oxford: Oxford University Press, 2015), 19–21.
On this, see Arianna Piacentini, “ ‘Others’ and Consociational Democracy: Citizens, Civil Society, and Politics in South Tyrol and Bosnia Herzegovina,” Project Report (Eurac Research-Provincia Autonoma di Bolzano, Bolzano/Bozen, 2021); on the condition of “others” in the context of autonomous arrangements, see also Timofey Agarin and Allison McCulloch, “How Power-Sharing Includes and Excludes Non-Dominant Communities: Introduction to the Special Issue,” International Political Science Review 41, no. 1 (2020): 3–14, and the other articles in this issue.
Francesco Palermo, “Implementation and Amendment of the Autonomy Statute,” in Tolerance through Law: Self Governance and Group Rights in South Tyrol, eds. Jens Woelk, Joseph Marko and Francesco Palermo (Leiden-Boston: Martinus Nijhoff, 2008), 158; the possible revision of the power-sharing system has been on the agenda in South Tyrol for several years and is still a politically contentious matter.
The Syrian case appears to rely on a democratic form of subnational government that is in line with the theoretical underpinnings of the liberal-democratic constitutional tradition; on this experience, see, among others, Rosa Burç, “Non-Territorial Autonomy and Gender Equality: The Case of the Autonomous Administration of North and East Syria – Rojava,” Philosophy and Society 31, no. 3 (2020): 321–340; Cengiz Gunes, “Accommodating Kurdish National Demands in Turkey,” in The Challenge of Non-Territorial Autonomy: Theory and Practice, eds. Ephraim Nimni, Alexander Osipov and David J. Smith (Bern: Peter Lang, 2013), 71–84.
Namely, Daniel J. Elazar, Exploring Federalism (Tuscaloosa: The University of Alabama Press, 1987); Carl J. Friedrich, Trends of Federalism in Theory and Practice (London: Pall Mall Press, 1968); Rufus S. Davis, The Federal Principle: A Journey Through Time in Quest of a Meaning (Berkeley-Los Angeles-London: University of California Press, 1978).
A legal concept is here regarded as the outcome of a process of abstraction of general legal categories typical of the comparative inquiry; on this, see Jean-F. Gaudreault-DesBiens and Fabien Gélinas, “Opening New Perspectives on Federalism,” in Le fédéralisme dans tous ses états: governance, identité et méthodologie – The States and Moods of Federalism: Governance, Identity and Methodology, eds. Jean-F. Gaudreault-DesBiens and Fabien Gélinas (Cowansville-Bruxelles: Éditions Yvon Blais-Bruylant, 2005), 70.
Gaudreault-DesBiens and Gélinas, “Opening New Perspectives,” 70–71.
On this, see Frédéric Lépine, “Federalism: Essence, Values and Ideologies,” in Understanding Federalism and Federation, eds. Alain-G. Gagnon, Soeren Keil and Sean Mueller (Farnham-Burlington: Ashgate, 2015), 31–48.
In this sense, Lépine, “Federalism,” 36–37.
On this, see Stephen Tierney, The Federal Contract: A Constitutional Theory of Federalism (Oxford: Oxford University Press, 2022), esp. 151–182; another author that framed federalism as a “constitutionally defined concept” implying a form government characterized by the existence of a multi-tiered structure is Patricia Popelier, Dynamic Federalism: A New Theory for Cohesion and Regional Autonomy (London-New York: Routledge, 2021), esp. 46–74.
See Frédéric Lépine, “A Journey through the History of Federalism: Is Multilevel Governance a Form of Federalism?,” L’Europe en formation 363, no. 1 (2012): 60.
According to Antoine Messarra, “Principe de territorialité et principe de personnalité en fédéralisme comparé: le cas du Liban et perspectives actuelles pour la gestion du pluralisme,” in Le fédéralisme dans tous ses états: governance, identité et méthodologie – The States and Moods of Federalism: Governance, Identity and Methodology, eds. Jean-F. Gaudreault-DesBiens and Fabien Gélinas (Cowansville-Bruxelles: Éditions Yvon Blais-Bruylant, 2005), 227–260, this position is principally due to the fact that most Western scholars are somewhat affected by a nation-state frame of mind or cryptotype, which has led to consideration of territorial polities as the fundamental elements of the general definition of “true” federalism.
Borrowing an expression formulated by Lépine, “A Journey,” 47; contra, suggesting that the state remains the natural dimension of federalism, see Tierney, The Federal Contract, 287–297, esp. 292.
On this, see Alessi, A Global Law.
For instance, recently, see Soeren Keil and Sabine Kropp, eds., Emerging Federal Structures in the Post-Cold War Era (Cham: Palgrave Macmillan, 2022).
Francesco Palermo, “Regulating Pluralism: Federalism as Decision-Making and New Challenges for Federal Studies,” in Federalism as Decision-Making: Changes in Structures, Procedures and Policies, eds. Francesco Palermo and Elisabeth Alber (Leiden-Boston: Brill-Nijhoff, 2015), 499–513.
On federalism as a “vanilla example” of managed pluralism, see Erin Ryan, “Federalism as Legal Pluralism,” in The Oxford Handbook of Global Legal Pluralism, ed. Paul S. Berman (Oxford: Oxford University Press, 2020), e-book version, 491–527.
Several indications are drawn from the considerations put forward by Palermo, “Regulating Pluralism,” 508–513 and extended in their theoretical scope; on this, see also Topidi’s chapter in this volume, which suggested that federalism, as a “strategy for good governance”, provides solutions to better accommodate legal pluralism.
Several reasons account for the increasing differentiation in federal organization; on this, see Francesco Palermo and Karl Kössler, Comparative Federalism: Constitutional Arrangements and Case Law (Oxford-Portland: Hart Publishing, 2019), 34–66; on asymmetry as a feature of multi-tiered systems, and especially the European Union and multinational systems, see also Michael Keating, “Asymmetrical Government: Multinational States in an Integrating Europe,” Publius 29, no. 1 (1999): 71–86.
The area of climate policy may be of particular interest; on this, see Mariachiara Alberton, “Climate Governance and Federalism in the European Union,” in Climate Governance and Federalism: A Forum of Federations Comparative Policy Analysis, eds. Alan Fenna, Sébastien Jodoin and Joana Setzer (Cambridge: Cambridge University Press, 2023), 128–149.
For instance, see Palermo and Kössler, Comparative Federalism and Francesco Palermo and Elisabeth Alber, eds., Federalism as Decision- Making: Changes in Structures, Procedures and Policies (Leiden- Boston: Brill-Nijhoff, 2015).
Francesco Palermo and Jens Woelk, “From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights,” European Yearbook of Minority Issues 3 (2003–2004): 7.
In this sense, coordination may not be limited to the boundaries of the state but also imply a strong role for trans-border cooperation (as well as, as seen, international bodies), especially when it comes to the accommodation of diversity.
On this, see Nico Steytler, ed., Comparative Federalism and Covid-19: Combating the Pandemic (London-New York: Routledge, 2021); Rupak Chattopadhyay et al., eds., Federalism and the Response to covid-19 (London-New York: Routledge, 2022).
On the possible further increase in jurisdiction conflict, and, more in general, the possible greater role of the judiciary in this area, and the parallel trends in federal systems, see Nicholas Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists? (Toronto: University of Toronto Press, 2017); Delaney, Erin F., “The Federal Case for Judicial Review,” Oxford Journal of Legal Studies 42, no. 3: 733–757.
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