222. Europe and the Politics of Minority Rights

By
Stephen Deets

The current priorities of the office of the OSCE High Commissioner on National Minorities (HCNM), headed by Max Van der Stoel, are problems in the former Yugoslav Republic of Macedonia, Moldova, Ukraine, Central Asia and Yugoslavia. What is most notable is what is not on the list. Since it's establishment in 1993, the HCNM has concentrated on ethnic tensions in Slovakia, Romania, and the Baltic States. None of these states remain on the current list of priorities. While this does not mean that the problems have been solved, it is a sign that minority politics in much of Eastern Europe has moved into the arena of "normal politics."

It is now time to reconsider minority policies and demands in light of liberal democratic theory and European norms. This aspect has so far been overlooked due to the high degree of ethnic mobilization at the moment of transition and because of the horrors of the disintegration of Yugoslavia. Democracy has been promoted as the panacea that would prevent violence and ensure minorities their "rights," particularly in the areas of education, language, and representation. But what are these "rights"? As many international institutions and NGOs have focused on ethnic reconciliation, they have often endorsed, or at least acquiesced to, policies that are grounded in notions of collective rights, as opposed to individual, liberal rights. Their approaches are reinforced by certain academic writings on nationalism and ethnic conflict, writings that make broad assumptions on the role and importance of certain types of identity in people's lives.

This paper will highlight one set of theorists labeled "liberal nationalists." As they consciously try to make collective identity compatible with liberal theory, they have become influential in certain European organizations. The liberal nationalists go beyond asserting that some rights, such as language and education, can only be enjoyed collectively. They believe culture provides individuals with the necessary framework to evaluate options and exercise true liberty. While only national communities can provide this cultural framework, these theorists believe that individuals should be allowed to choose their identity. Since national and ethnic cultures are tied to liberty, states have certain obligations to preserve them.

The counter argument is that national and ethnic cultures are not necessary ingredients to liberalism or the democratic process, but instead are values that are brought into the democratic process. In other words, there are no collective rights, only individual rights.

Even a purportedly liberal theory on collective rights of national minorities encounters three major problems. First, it reifies groups. There is no way to handle the evolving identities of groups, and this means it is unclear what states are supposed to protect and preserve. Second, it fails to recognize the impact that state policy can have on identity. Third, it raises fundamental issues of fairness since it cannot adequately explain why certain types of minorities are privileged.

These counter-arguments can be illustrated by a glance at Romania's guarantees for minority representation. Minorities who fail to cross the 3% threshold are entitled to a seat in the lower house of Parliament if they receive more than 5% of the average vote needed to elect one representative - in 1996, the average vote was about 1800. The minority candidates are listed on the ballot with all the other candidates, and everyone is free to vote for them. Through this process, they avoid problematic questions of which individual voters are members of a minority.

However, there are several cases in which more people voted in 1996 for ethnic parties than self-identified as members of the group in the census. In the Italian case, six Italian parties contested the 1996 elections, together receiving over 25,000 votes, whereas less than 2,000 individuals declared themselves Italians in the census. As most Italian parties were centered in a single community, one wonders if political entrepreneurs are forming ethnic parties in light of the low barrier. This question is further raised by the fact that the number of ethnic parties in Parliament has risen in each election. The Romanian law also generates a basic question of fairness. Why did the Polish party receive a seat in Parliament with 1,842 votes whereas the Pensioners Party, which won over 175,000 votes, got none? One would have to argue that there is something more essential about one's identity as a minority than as a pensioner, but it is hardly convincing. One could argue that ethnic groups are more likely to engage in violence than pensioners, or that protecting minority rights is high on the list of conditionality measures for EU accession while supporting the elderly is not. Finally, one could admit that many political elites think in ethnic terms. However, these statements are grounded in pragmatism and cultural values, not liberal rights.

As European norms on minority rights have evolved, the stress on individuals as the sole holders of rights has become clearer. In the political sphere, the focus has been on non-discrimination and governments seeking out diverse voices. Consequently, it should not be surprising that there are no clear norms on minority representation. Norms for minority language and education are far better developed. In this case, the focus on individual rights was strongly influenced by the European Court on Human Rights decision in the 1968 Belgian Linguistics Case. When a 1963 Belgian education law declared public schools in most communes unilingual, French-speaking parents took Belgium to court, arguing that their rights under the European Convention on Human Rights had been violated. The ruling of the court was quite clear. The Convention ensures equality, in this case equal access to educational institutions; it does not enshrine the right to education in a given language. Since private French-speaking schools were allowed in the Flemish region, parents still had the option to send their children to a French-speaking school. The Court's decision set the principles that states do not have to provide positive benefits to minorities as a group but minorities do have the right to freely associate and create private institutions.

Minority rights in language and education are most fully detailed in the 1992 European Charter on Regional and Minority Languages and the 1995 Framework Convention for the Protection of National Minorities. While substantive aspects of the Charter cover a broad area, the document is deceptively restrictive in its application. Most significantly, the Charter does not protect users of the language, but only the languages themselves. In other words, it does not explicitly guarantee the right of any individual to use the language in any specific situation. Similarly, the Framework Convention grants rights to "persons belonging to national minorities" and calls on states to facilitate the enjoyment of these rights. Still, there are no clear claimable rights against the state. At the same time, this and other recent documents increasingly prescribe certain types of state policy. In some sense then, minority language and education have shifted from an issue of rights to the provision of public goods, which places them firmly within the political process in a way that formulates them as rights would not.

This background sheds a different light on some minority education controversies in Central Europe. For example, in Slovakia, Hungarian has been taught in schools in South Slovakia since the 1960s. In many cases, Hungarian is the primary language of the schools and Slovak is studied as a subject. The Minister of Education announced a new policy in 1994. Similar to the proposals in Romania, more subjects in Hungarian schools would be taught in Slovak, particularly history and geography. In light of the widespread protest by the Hungarians, the ministry offered it as an option and referred to it as "alternative education." Still, the ministry expressed puzzlement over the domestic and international outcry, defending the policy as modeled on West European examples and in full compliance with European norms. The government was correct, as the final plan closely resembles the policy in the Basque region since the 1980s and the education options in Ireland since the 1930s. In fact, Van der Stoel stated that nothing in the plan inherently violated European norms, but still urged the government to reduce ethnic tension over the issue. Until the 1998 elections, there were also widespread protests over the lack of government funding for Hungarian textbooks as well as widespread firing of ethnic Hungarian school administrators. In these two examples there was clear discrimination and Slovakia failed to fulfill its obligations; the HCNM criticized the government on both counts.

In Romania, controversy centered on a Hungarian-language university in Cluj (Kolosvar). While many Hungarians advocated re-separating the university into its Hungarian and Romanian components, the university rector (Andrei Marga) supported a policy of increasing both the German and Hungarian course offerings in recognition of the multicultural history of the region. Other important voices supported the status quo or even eliminating all Hungarian courses. The debate greatly intensified after the 1996 elections, when the Hungarian Democratic Party of Romania (HDUR) joined the government and Marga became Minister of Education. Eventually, it became clear that dividing the university was not going to happen and there was not enough support in the government for an entirely separate, public Hungarian university. Van der Stoel came out in favor of Marga's position, which was eventually adopted and is working relatively well.

Van der Stoel's endorsement of multiculturalism mirrors his approach in Macedonia, where he finally negotiated a compromise between Albanians, who demanded a public Albanian- language university, and the Macedonian government. Though private, the new university will be recognized as part of the state educational system, and it will operate in Macedonian, Albanian, German, French, and English. Funding will be provided by European institutions.

In both Romania and Macedonia, the solution did not recognize that the minority had a "right" to higher education in its own language, much less its own university, but the principle was that in a democracy, the government is required to address the diversity of the population.

There are virtually no norms in Europe when it comes to citizenship , an issue that strikes at the heart of both state identity and political power. In cases in which new states are intent on building national states, citizenship laws become a powerful weapon, and nowhere has this been clearer than in Estonia. After independence, the 1938 Estonian citizenship law was reinstated, effectively classifying most Russians as immigrants. As the naturalization process takes a minimum of three years, no one could be naturalized before the 1992 election. The tension over citizenship and voice were particularly intense in 1993, when the parliament passed a law denying non-citizens the right to hold office. Russia temporarily cut off Estonia's supply of natural gas in response and several Russian towns announced a referendum on autonomy. Then, in December 1998, the Estonian Parliament added Estonian-language proficiency requirements to both the election acts. As noted by the HCNM, these amendments violate the Estonian Constitution as well as international obligations regarding non-discrimination and freedom to be elected. In general though, the Estonians defend their actions as in line with European norms - the Germans do not include the Turks as a protected minority, and there was no reason for Estonia to include what they perceive as an immigrant group. However, this again obscures the fact that Van der Stoel is not interested merely in norm implementation, but in reducing tensions between Russia and Estonia.

While favoring one set of identities, we have failed to closely examine ethnic minority demands through a framework of liberal democracy, a framework to which European agreements have been remarkably successful in adhering. Instead, we have endorsed positions in the East we would never accept in the West, and we are in danger of creating new norms around notions of collective rights. As democracies require each individual to have a multiplicity of identities and interests, there must be better differentiation on when heralded minority policies are grounded in rights, on ideas, on best practices, and on compromises to reduce tension. Otherwise, we risk being ill-prepared to meet the challenges of the plethora of identities that will call for recognition and resources in the "post-modern world" we are about to enter.

Stephen Deets spoke at an EES Noon Discussion on December 19, 2000. The above is a summary of his remarks. Meeting Report #222

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