Utilizziamo i cookie per rendere il nostro sito Web il più intuitivo possibile. Se continui, supponiamo che tu acconsenta a questo.
Ulteriori informazioni sono disponibili nella informativa sulla privacy.
Francesco Palermo: Self-government (and other?) instruments for the prevention of ethnic conflicts in South Tyrol
Euromediter. 2003The Italian constitutional minority protection system. General remarks
Within the Italian territory approximately 2.5 million people (4.5% of the population) belong to (at least) 12 minority groups. This fact makes Italy the EU country in which most minorities live . It is important to stress that the Italian Constitution takes only the language as a distinctive feature to identify minorities, because of the basic assumption that all Italian citizens are members of the Italian nation, which is, in fact, a nation of nations.
1. THE ITALIAN CONSTITUTIONAL MINORITY PROTECTION SYSTEM. GENERAL REMARKS 1
1.1. THE ASYMMETRICAL ELEMENT 2
1.2. THE LEGISLATION 2
1.3. THE REGIONAL MINORITY PROTECTION SYSTEM 3
2. THE SOUTH TYROL AUTONOMY. HISTORICAL REMARKS (OUTLINES) 3
3. BASIC PRINCIPLES OF THE AUTONOMY IN SOUTH TYROL 4
3.1. MINORITY PROTECTION 4
3.2. SELF-GOVERNMENT 6
4. CONCLUDING REMARKS. FROM THE MINORITY PROTECTION TO A NEW ERA IN THE SOUTH TYROL AUTONOMY 7
4.1. LOCAL GOVERNMENT, CITIZENS, MINORITIES 8
4.2. A PROPOSAL: THE FUNCTIONAL AUTONOMY 9
1. The Italian constitutional minority protection system. General remarks
Within the Italian territory approximately 2.5 million people (4.5% of the population) belong to (at least) 12 minority groups. This fact makes Italy the EU country in which most minorities live . It is important to stress that the Italian Constitution takes only the language as a distinctive feature to identify minorities, because of the basic assumption that all Italian citizens are members of the Italian nation, which is, in fact, a nation of nations. This fact does not mean that other minority features other than the linguistic are not recognized, but only that the protectional mechanisms are different. For the "other" minorities (racial, sexual, religious, and so on) the general provision of the equality clause in art. 3 is issued, while linguistic minorities are protected on the basis of the special measures announced in art. 6.
In addition, not all the linguistic minorities are officially recognized, so that, under the Italian constitutional law's point of view, it is correct to speek about "protected" linguistic minorities. The third preliminary element for the comprehension of the Italian "minority Constitution" is the difference in the minority safeguard system not only between protected and unprotected minorities, but also between the different protected minorities. It is also (not only possible, but also necessary) to distinguish the diverse protection systems within the constitutional law.
The criterion for the identification of protected minorities is basically the territory. The affirmative minority rights are connected primarily to a territory rather than to its inhabitants, so that in the Italian constitutional system, personal-related minority rights are rarely recognized; this means, for instance, that a French-speaking inhabitant of the Aosta Valley can only make use of his linguistic rights within his Region. Furthermore, the belonging to a linguistic minority is generally based only on the free will of each individual, with some partial exeption in the Province of Bolzano.
1.1. The asymmetrical element
Art. 6 of the Constitution, the general provision for the minority protection, doesn't specify if this defense should be granted by a general provision (framework law) or by different measures for every (protected) minority. For reasons factual (the difficulty to draft a general provision which satisfied the requests of the different minorities) and legal (the international anchoring of some minority, such as the South Tyrolean one), a general law was never passed by the national Parliament, and every (recognized) minority now enjoys different treatment. This could probably be seen as a violation of the equality principle which imposes an equal treatment for the social groups sharing the same legal nature . This is the usual result in almost all the constitutional systems (and now also recognized by the Framework Convention on the Protection of National Minorities of the Council of Europe), because of the impact of extra-legal elements (such as the number of the minority group members, their political cohesion, the influence of foreign national States). In Italy, however, the different legal condition of the minorities is particulary evident.
For this reason, Italy is at the same time one of the most advanced countries with respect of the minority protection and a State in which many small minority groups are in danger of being definitively assimilated in the near future. There are many possible explanations for this situation, not least the economic feature (some affirmative rights, like for example the linguistic ones, are very expensive for the State budget), but the result is that this situation works even against the survival of the smaller groups. In any case, the relevance in a legal perspective is that the Constitutional Court not only invited the Parliament to establish at least a minimal standard for all the groups, but in fact did also recognize (i.e. accept) the different protection of minority groups as an unavoidable element of the Italian "minority Constitution" (pronunciations no. 28/1982, 62/1992 and 15/1996).
1.2. The legislation
The briefly described constitutional principles should be concretized through ordinary laws. Under the laws recognizing concrete minority rights of certain groups the following should be mentioned: the articles of the civil and penal procedure code with respect to the right to use one's own language in the trial (usually with an interpreter, with exception of the Province of Bolzano, where it is possible to set up trials in the German language), the laws which guarantee political representation for some minority groups (for instance in the european elections for South Tyrol and Aosta Valley, art. 12 al. 9 law 24 january 1979, no. 18), the possibility to constitute schools in the language of the minorities (in South Tyrol, Friuli-Venezia Giulia and Aosta Valley, art. 4 and 9 law 30 july 1973, n. 477), special provisions for the media (for the German, the French and the Slovene minority), and many others. Nevertheless, all these measures only recognize the diversity in the legal status of the various minorities, giving a legal recognition to a pre-existent factual situation.
The best example to show how Italy only creates an asymmetrical minority protection system, is the case of the framework law on minority issues. The small minorities always request a framework law on this matter, which ensures a minimal standard of protection, as a consequence of the disposal of art. 6 of the Constitution, and even the constitutional court stressed in some occasions the utility of such a law (pronunciation no. 312/1983). In spite of many attempts to pass a framework law, which indicates the recognized minorities and provides a minimal standard of their protection (the most important and concrete of them was the proposal no. 612/1991), this law has never been passed.
1.3. The regional minority protection system
The most important criterion adopted by the Italian Constitution for the minority protection is the territorial autonomy of the regions where such groups live. Obviously, the more developed the self-government, the easier the recognition and the protection at a local level of the minority groups, because small groups at a national level can become, in a local governance perspective, numerically more significant, or even the mayority in its territory, such as in South Tyrol and in the Aosta Valley. This criterion is in fact very efficient in cases of bigger and territorially compact minorities, whereas for smaller and scattered groups it is an inadequate protection instrument. As a consequence, the most safeguarded (protected) minorities in Italy are big linguistic groups, living in border areas to the respective national States: German speakers at the Austrian border, French speaker at the French one, Slovene speakers near Slovenia.
Since 1970, when Regions with ordinary autonomy were set up, some smaller minorities have also slowly became more sefeguarded. Nowadays, many Regions have laws on the protection of minorities living in their territory: Piemonte has passed law in favour of the French-provençal and the Walser speaking group, Veneto for German and Ladin speakers, Molise for Albanians and Croats, Basilicata for the Albanians, Calabria for the Provençal speaking minority. In most of these cases, these laws have shown their ineffectivness, for containing too general and even utopian provisions which the Region would never be able to apply for economical and political reasons.
Obviously, not every Region where linguistic minorities are living have passed laws to their protection, so that many groups don't have any legal instrument for their safeguard: French-provençal speakers in Liguria, Albanians in Abruzzo, Campania and Puglia, Greeks and Provençal speakers in Puglia. As a last point of general information it is important to stress that almost all municipal basic statutes (merely administrative rules) where non-Italian speaking groups live, mention as a municipal duty the safeguard and the improvement of these groups.
After these brief but necessary general remarks on the Italian constitutional minority protection system, it should be easier to understand the very particular South Tyrolean situation.
2. The South Tyrol autonomy. Historical remarks (outlines)
From the fourteenth century onwards, the actual territory of the autonomous Region Trentino-South Tyrol was a part of the crown Province (Kronland) Tyrol, within the Habsburg empire. During this time the ethno-linguistic differences were basically manageable because of the multinational feature of the empire. Nevertheless in the actual Province of Bolzano-South Tyrol there was a clear predominance of the German and Ladin speaking inhabitants (the rate of Ladins has been strongly reduced during the 19th century, when Ladins living in the western valleys of the Province were slowly assimilated by the German population). The southern part of this region, the actual Province of Trento, has always been mostly Italian. The last census taken during the Habsburg time (1910) showed a strong majority of German-speakers in South Tyrol (89%), and a minimal presence of Ladins (3.7%) and Italians (3%), while in Trentino the situation was more or less the opposite.
After the First World War, with the peace treaty of St. Germain (1919) both Trentino and South Tyrol were ceded to Italy. The case of Trentino was quite simple in the view of the international law at that time, which tried to redesign States on the basis of the nationality principle. The main reasons for the annexion of South Tyrol were the geographical position on the one hand (southern of the alps) and the particulary feeble contracting power of a destroyed and defeated Austria on the other.
However, since 1919 the Italian Government ensured that it would take particular measures to protect the German-speaking minority living within its territory, expecially in the form of both territorial and cultural autonomy. This proposal could not be realized because of the coming to power of the fascist regime in 1922. During the fascist dictature a number of repressive measures were taken against the German-speaking minority, from the prohibition of the use of German language in public and private matters (and also of the German names) to the massive italianisation programme, based on the immigration of workers from other parts of Italy. In spite of the official position of the Italian and the German dictature, which did not consider the South Tyrol case as a problem, during the 1930s there was a considerable increase of nazist groups wanting the unification of South Tyrol with the German third Reich. In 1939 Hitler and Mussolini decided to resolve definitively the South Tyrol problem, and came to an agreement allowing the South Tyrolese, who wanted to be German, to move to the German Reich. About 85% of the German-speaking population decided for Hitler's Reich. In fact, only 75,000 people left their homeland, and around 25% of them returned after the Second World War.
The peace treaty with Italy recognised South Tyrol as a part of Italy, for many (and not always clear) reasons. What seems certain is that Russia wanted to satisfy the Yugoslavian demands for Istria and Dalmatia, quasi "in exchange" for the South Tyrolean territory . To avoid the dangers of the past, the peace treaty provided an international anchoring for the South Tyrol autonomy, ensuring to the German-speaking population special provisions to guarantee "complete equality of rights with the Italian-speaking inhabitants" and to safeguard "the ethnic character, and the cultural and economic development" of the Province of Bolzano. In 1948 the Italian Parliament issued an autonomy statute, which contained a large autonomy (for that time), but basically only at a regional level, where the Italians were the majority, and not at a provincial level. The statute ensured the co-officiality of the German language. The South Tyrolese Peoples Party (SVP) considered the autonomy measures to be inadequate, and at the end of a process of political claims, it left the Regional Government (1959). In the early 1960s the tension kept growing, and many bomb attacks marked the beginning of difficult years. The Austrian Government urged the U.N. to take position on the South Tyrolean case, and in two resolutions (1960 and 1961) the U.N. General Assembly reccomended that a friendly solution be found by further negotiations. A special Italian and Austrian commission was established, which finally led to the so called "package" of legislative measures in favour of the inhabitants of the Province of Bolzano.
In December 1969 the "package" of measures was approved by both the Italian and the Austrian Parliament. The most important consequence of the negotiations was the reform of the autonomy statute, and the transfer of legislative and administrative competences, previously assigned to the regional level, to the Provinces of Bolzano and Trento. This evolution, which formally ended in 1992 with the "deed of discharge" issued by the Austrian Government, did mean that a) the South Tyrol question formally became a purely internal Italian matter and b) the solution was found in a large self-government for the Province of Bolzano as an instrument for the regulation of the ethnic conflict in this area.
3. Basic principles of the autonomy in South Tyrol
3.1. Minority protection
Nowadays, the German linguistic minority in South Tyrol can be described as the largest protected minority in Italy, and probably one of the most well-handled minority groups in the whole world.
The whole institutional complex of the Province of Bolzano (and of the Region Trentino-South Tyrol, where relevant) is based on the strict separation of the two main linguistic groups, the German one and the Italian one. Omitting sociolinguistic remarks, legal examples of this principle include the provisions regarding the composition of the regional (artt. 30, 36, 62 autonomy statute) and provincial bodies of Bolzano (artt. 49, 50, 62), as well the municipal ones (artt. 61 and 62). The South Tyrol provincial Parliament can be called in some cases for votes by language groups (art. 56). Other important institutional indicators in the autonomy statute for the strict division of the groups within the public bodies are the possibility to impugn a provincial or regional law and to submit it to the constitutional Court's review (art. 56 al. 2), and the necessity of an uninterrupted residence of four years in the regional territory in order to exercise the right to an active franchise (art. 25 al. 4).
As a consequence of this institutional system, based on an "ethnic divided governance", many aspects of daily life are conditioned by the same mechanism. The most significant of these are the public jobs, the educational system and the linguistic rights.
With regard to the (civil) personnel in public offices, the positions "are reserved for citizens belonging to each of the three language groups, in proportion to the size of the groups themselves, as they appear in the declarations of the official census" (art. 89). Since 1981, every ten years the inhabitants of South Tyrol should add to the common data of the population's census a declaration of belonging to one of the three linguistic groups. Through this declaration the strength of the linguistic groups can be ascertained, and it then forms the legal foundation of the public life. Those who do not make the declaration are excluded from applying for public posts, offices, accomodation and various social contributions. In the last census (1991) the strength of the groups was as follows: German group 67.99%, Italian group 27.65%, Ladin group 4.36% . In addition, a preference for public posts is accorded to citizens who have resided in South Tyrol for at least two years (d.P.R. 752/1976). This so called "ethnic" proportional representation has been, and still is, critized for violation of the equality principle. The legal arguments are too complicated to be expressed in this paper. What is important to be stressed, however, is that on the one hand this mechanism is an act of reparation for the italianisation during the fascist time, and as an affirmative action is limited in time (at least for the State administration it should be terminated between 2002 and 2006). On the other hand, even more important is the need for the proportional criterion to be adapted to the new realities which will be described in the next section.
The educational system in South Tyrol is based on the principle that "instruction in the nursery, elementary and secondary schools is given in the Italian or German mother tongue of the pupils by instructors for whom that language is also their mother tongue" (art. 19 al. 1 autonomy statute). The teaching of the "second language" (Italian in the German schools and viceversa) is compulsory, from the 1. or the 2. class onward. In the Ladin valleys Ladin is used in the nursery and taught in the elementary school, and can be used as a teaching aid in the elementary and secondary schools. In these schools lessons are also conducted, in equal number of hours, in Italian and German, and Ladin is taught as well. The educational boards are also separated. The enrollment of a pupil in a school of one or the other group is based on the request of the parents, but it must "in no way influence the teaching language planned for the different schools" (d.P.R. 89/1983), so that in fact it is at the discretion of the school bodies to admit a pupil to a school of one or the other group (the decision can anyway be appelled to the autonomous section of the regional administrative court).
In the Province of Bolzano "the German language has parity with the Italian language, which is the official language of the State" (art. 99 autonomy statute). Every inhabitant (rectius: every person) can also use Italian or German (in limitated zones also the Ladin language) in the relations "with judiciary offices and with the organs and offices of public administration located in the Province or having regional competence, as well as with concessionaires of public services in the Province itself" (art. 100 al. 1). Those offices, organs and concessionairies have the duty to "use the language of the applicant and [to] reply in the language in which documents have been started". When documents are "started by the offices themselves, the corrispondence must be carried on the language presumed to be the mother tongue of the citizen to whom it is directed" (art. 100 al. 3). The public employers (and the concessionaires of public services) should also be bilingual (trilingual in the Ladin valleys), which has to be proved by a public examination. Since 1993, every judicial trial can be instituted also in German (before German could be used but the minutes had to be written in Italian).
The toponymy must be bilingual (art. 8 al. 2 autonomy statute), and trilingual in the Ladin valleys. Concerning the media, the Province has created a public board with the duty to transmit German speaking radio and TV programs. Finally, it is easy to understand that these advanced mechanisms are in many cases very expensive (for example the linguistic rights, or the double/triple educational system). Apart from a small percentage, the Provinces (and also the Region) have no right to levy taxes. To cover the elevated costs of the autonomy, the majority of the sum of taxes and duties collected in South Tyrol goes to the Province (around 90%), and little part flows to the Region (5%). The more or less 5% left is kept by the State for its tasks al a local level, albeit these costs amount much more. The final ratio of taxes and duties payed by the inhabitants of the Province and the money spent by Province, Region and State for public tasks within South Tyrol is around 100:110.
The briefly described minority protection rules are strictly related to the large legislative and administrative autonomy of the Province, whose competence includes all the most important issues, with the exception of the army, the justice system, the police and the power to collect taxes.
Considering that Italy is not a federal State, it can be noted that the competences are as broad as possible in a decentralized system, as it is demonstrated by the fact that the competences currently attributed to the autonomous Province of Bolzano are greater in quantity and quality than, for instance, those of the "State" of Tyrol, within the federal State of Austria .
The fact that autonomy should be considered a dynamic concept rather than a static system at its completion, is demonstrated not only by the political developments, but also by important legal elements. Since the end of the international dispute (1992), new competences have been transferred to the Province of Bolzano (almost all extended even to the Province of Trento). Some of these are particulary important, such as the ones about school (1996), roads (1997) and university (1997). The increase in local governance powers is illustrated in the framework of the recent policy of an ever-increasing decentralization of roles from the Italian State (a scholar called it "federalism for desertion") that led to the two very important so called "Bassanini laws" of 1997 and to the proposal of the constitutional reform which is in progress. It is also most evident in the contractualistic viewpoint, which has always been typical of the relationship between the Province of Bolzano and the central State.
As a consequence of this contractualistic approach, the parithetic commissions between the State and the Province of Bolzano (commission of 6) and between the State and the provinces of Bolzano and Trento (commission of the 12) for the approval of the supplemental rules of the autonomy statute still exist even after the end of the international dispute. It means firstly that the Italian State, into which the South Tyrol problem has been transferred after Austria gave the dispute settlement declaration, has recognized the validity and the effectivness of a solution to the minority problems through negotiations (even if only in relation to the strong minority groups); secondly that autonomy can and indeed must be fulfilled significantly beyond the mere phase of the minorities protection.
Actually the package of measures for the South Tyrolean population, introduced in 1969 to provide German and Ladin populations with a better protection in the framework of the Italian constitutional system through a larger territorial self-government, can be considerd, from a legal point of view, fulfilled with the Austrian declaration of 1992. From that date, the minority problems can be considered as satisfactorly resolved, since minorities living within the provincial territory of Bolzano have attained a level of protection which, if not threatened by improbable and in any case internationally sanctionable violation, is to be considered optimal.
Nevertheless, because autonomy is not only the protection of minorities but something broader and more complex, the autonomy process has not stopped (and will not) with the end of the international dispute concerning South Tyrol. The consciousness of self-government, formed during the almost 50 years of the growing autonomy, has caused the necessity of constantly adopting the autonomic structures to new realities. In this context we should examine not only the new competences described above, but also the project of institutionalized interregional cross-border co-operation which has taken shape in the last few years and which constitutes the next, fundamental goal (and challenge) of the South Tyrol autonomy.
This project to create an European Region of Tyrol will be an essential trial period to understand if self-government is developing towards the direction of a more modern regional autonomy, going beyond national borders in the framework of necessary co-operation between analogous local institutions, or it will be managed with the instruments of the "ethnic balancing" which characterized (with success) the creation of the autonomy up to 1992. In simpler words, the project of cross-border co-operation provides the creation of an European Region of Tyrol, which would cover the territory of the historic Tyrol, including the Austrian Land and the autonomous Provinces of Trento and Bolzano.
However, this strategy of cross-border cooperation is not viewed favourably by all. The ethnic balance between German and Italian speakers in South Tyrol was established initially on a regional level (whereby, during the first statute, competences were concentrated mostly in a territorial institution with a prevalently Italian population), then on a provincial level (whereby during the second statute competences passed to the provinces, so in Bolzano self-government established itself in the German minority). Now, some people see the current proposal of trans-border cooperation as potentially upsetting the existing ethnic balance in favour of a new Euro-regional level which could virtually demolish the Brenner border and give life to an Austrian-Italian cross-border region with a stronger German majority, thus rebuilding the Tyrol as it existed before 1918, with clear signs of an anachronistic institutional revanchist policy .
Regardless of ethnic and cultural elements, should the co-operation be able to be focussed on the governmental functions where co-operation is necessary, basing itself on the existing interests of the common resources administration, then the autonomy will be mature for the new phase that the modern evolution demands. It seems difficult to be able to object to this next phase: so it is better to organize for its best outcomes.
4. Concluding remarks. From the minority protection to a new era in the South Tyrol autonomy
As we have already said, the end of the international dispute has undeniably opened a new phase in the South Tyrol autonomy, which will lead unavoidably to a total change in the perspectives for autonomy in the next few years, with a consequent, unavoidable change even in respect of the minority problems in this land.
The South Tyrol autonomy therefore should prepare itself for a new phase, even if until now the institutional-political reality does not seem to have considered it a requirement. The end of the phase in which the autonomy was considered only as an instrument for minority protection provides the opportunity to adress the problem relating to the kind of relationship existing between administration and citizens (Bürgernähe), and, as a consequence, to the functionality of certain competences.
4.1. Local government, citizens, minorities
Concerning the first aspect we should recall two points of interest. Firstly the provincial administration is characterized by a strong institutional rigidity, which sometimes causes difficulties in the relationship with the municipalities and therefore with the territorial institutions nearer to the citizens. If this difficult relationship is counterbalanced for the majotity of little towns by the political continuity of governmental bodies, so that more intense political relations take the place of the lacking institutional connection, it is not the same for major towns or for those which are not governed by the SVP. This is particulary the case for the city of Bolzano. In this way, it seems as if we have reached the moment in which we should yield to the towns the practice of certain administrative functions, in the way both the Italian Constitution (art. 128) and the autonomy statute (art. 18 al. 2) provide, as the threatening period to the integrity of the Province and the unit of its population has ended. The completion of the phase of mere protection can finally open new perspectives in the ralationship between Province and other local institutions, by overcoming the minority issues and by referring, at least in relation to the majority of administrative questions, to the functionality of the levels of government more than to ethnic-linguistic considerations.
Secondly, the democratic issue also deserves a mention. It is an element far too complex to be entirely analyzed in this work, but we cannot avoid highlighting at least some fundamental points. Very important is the issue of a one party system, especially when that party keeps on considering itself a party which gathers (at maximum) two of the three linguistic groups. It's clear, in fact, that the growth of the provincial competences means growth of self-government for the linguistic group represented by the party which governs, with absolute majority, the Province itself. In this way, if the party will keep on considering itself an ethic party, there is no room, as far as provincial competences are concerned (that is, the majority of the competences) for the Italian numeric minority. In other words, the transposition in terms of local government of matters which were previously simple instruments of minority protection means that the relationship between majority and minority cannot be considered anymore in absolute terms, but in relation to the executed functions. Thereby the German speaking population will be a minority in all those governmental functions exercised by the central State (defense, foreign policy, public security), whereas it will be a majority in practicing those functions of provincial competence (for instance, regarding agriculture in the Province of Bolzano, there is, even if for understandable historic reasons, an absolute control by the German speaking group).
As a consequence it is necessary for a global change of mind concerning the majorities/minorities relationship, and it has to occur through the participation of all the population for the ongoing and managemet of the autonomy. There is some evidence of this (recently, for instance, the approval of a regional law which expands to important sectors the institutes of direct democracy such as referendum or popular legislative initiative, law 11.19.1997), but on the whole the South Tyrol institutional system is still too rigid on the minority issue and, all in all, scarcely prepared to face the changes which are taking place.
What seems to be necessary to achieve this aim is a gradual passage in the legal status of every inhabitant of the Province of Bolzano from "belongers to a linguistic group" (majority or minority, recognizing the above described variability of the concept in relation with different functions of government) to "citizens". In this way, it will be possible to discuss, in terms of participation more than of granted representation, the reintroduction into a system based on reverse discrimination (at times in favour of the one group, at times in favour of the other) of elements of substantial equality which seem necessary to manage the provincial self-government of the future more effectively. A possible solution in relation to this necessary adjusting of the institutional structures to new realities can come from a more elastic (functional) management of the governmental functions.
4.2. A proposal: the functional autonomy
The new challenges of the globalizing phenomena (from economy to media and culture) require an attitude necessarily more open than the current one. Ethnic contraposition revealed itself as extremely effective to the protection of the German speaking minority (and also for Ladins in South Tyrol) when it came to negotiating with the Italian State in relation to obtaining competences and founds in exchange for peace and good administration.
Nevertheless the new reality imposes a change of perspective, because the legal context has now changed at all levels from the phase that preceeded the fulfillment of the requirements of the package (and of associated ethnic issue) in 1992. It has changed at a local level in terms of having reached a satisfactory minority protection (as the Austrian recognition of 1992 shows) and a good level of self-government (which is continuing to develop, as previously mentioned in this paper), showing that autonomy is not a concept which can be confused with the protection of minority groups. It has changed on an Italian level, where the process of constitutional and ordinary reforms has already begun and where the devolution seems as if it can no longer be stopped, particulary with respect to special autonomies, as it is shown by recent legislative innovations and by a jurisprudence from the constitutional court which is more and more leniant. The legal framework has also changed with the progress of European integration. For instance, since 1995 even Austria is a member of the Union and the disagreements at intra-Community borders are losing their reason for existence thanks to the development of programms (such as Interreg) which support neighbouring regions, making them no longer peripherial land of nation States, but "peripherial centers", more and more able to relate directly with the EC-system. Finally, even the international legal context has changed due to both the end of the dispute between Austria and Italy at the UN, and the new opportunities offered for trans-border co-operation astride the Brenner border in the 1993 Italian-Austrian bilateral agreement.
In a reality changing so quickly, even the political and (what is interesting in this paper) legal structures of the South Tyrol autonomy should adapt themselves. It is necessary to consider government functions not as an absolute value, but as an instrument with which we can reach the satisfaction of citizens' needs. In the previous phase of autonomy the distribution of competences was inextricably linked with minority issues, and the increasing governance powers of the Province meant that a minority attained more self-government within the Italian State. Today, given the standards already reached in minority protection in South Tyrol, and that these standards are no longer endangered, competences could be allocated on the basis of function rather than minority issues and therefore operate within the principle of subsidiarity. Every function of governance should be valued in the light of its efficacy in terms of citizens' interests and not in the light of a contraposition between enemies anymore. South Tyrol today has no enemies neither to the south nor to the north, but only possible partners with whom it can co-operate in managing certain governance functions.
With this new viewpoint the autonomy of Souty Tyrol can no longer be afraid of yielding competences (towards high or low) if their management at a provincial level should be ineffective, just as it can not be afraid of demanding new ones for the same reasons. In order to do this it is nevertheless necessary to clear the ground from possible misunderstandings towards the Italian State, definitively accepting the appartenance, with a more and more broad autonomy, to a State which is making its way towards European integration, and without looking at Vienna or Rome as motherlands in a new national-State viewpoint, more tipical of the last century than of the new millennium. It is also necessary to break free from the narrow perspective of the minority issues and have the courage to focus the attention on the issue of functional self-government of the land rather than on one, two or three ethnic-linguistic groups.
This open attitude towards a functional system in distributing competences would most certainly involve, moreover, new important functions for the Province of Bolzano. It is actually clear, for instance, that as long as the South Tyrol autonomy is seen only through ethnic eyes it will be very difficult to think that the Italian State could yield important competences in very delicate matters such as police powers or the justice system. An useful example of this could come from the Catalan experience, where the transfer of competences regarding the police has been made possible thanks to the overcoming of the dichotomous autonomy-self-determination framework, which characterized the first years of the new Catalonia after Franco. A backward attitude can led to lost opportunities.
Actually South Tyrol has, in fact, a position of certain advantage in comparison with the majority of other realities in which ethnic-linguistic minorities live. The fundamental problem of granting sufficient types of protection to minorities (and to the individuals belonging to them) has been basically solved in South Tyrol. It is clear, in fact, that where problems of living together among different groups have not been solved, it is impossible to consider a new approach, overtaking the outdated jacobine way of thinking in terms of neo-nationalist contraposition against national States trying to create new small national States. Therefore, in the initial stages of the institutional reform which inevitably follows globalisation trends , the reality of South Tyrol is more suited than others to face new challenges and to give life to an Europe of regions, a concept about which is often spoken without drafting its concrete contents.
The reality of the Province of Bolzano could, on the contrary, be a concrete example of this European regional integration, based on different languages and cultures living together in the name of the common interest in the autonomous management of the territory, so long as it can break away from a logic which was very advantageous for past times but potentially dangerous for future ones.
The paper first shortly describes the general frame of the minority protection system in Italy, which foresees a strong variated kind of measures.
The main reason of that could be found in the numerical amount of each minority, on their territorial homogenity and on the role of foreign States sharing their language.
The most detailed legal provisions on minority protection can't be found in the Constitution or in ordinary laws, but in regional "constitutions" (statuti) or laws. In the case of South Tyrol the regional statuto developed a complex and (not only politically) delicate machinery, whose most important features will be shortly described. These rules stress as long as possible the territorial autonomy trying to avoid in this way to face the distinction between individual and collective rights.
In the case of South Tyrol the element of selfgovernment is the key, which allows to mantain a satisfactory balance between the ethnic groups living in the country. This reality cannot easily be implemented in other regional (or minority) realities.
This minority protection system could be seen as an example for other minorities living on the Italian territory (expecially for the most important ones, as the french-speaking minority or the Slovenes), but on the other hand the actual model based on the egoism of the stronger (and recognized) minorities has not contributed to the development of the smaller ones.
Nevertheless, the end of the phase in which the autonomy was considered only as an instrument for minority protection provides the opportunity to adress the problem relating to the kind of relationship existing between administration and citizens, and, as a consequence, to the functionality of certain competences.