307. The Internationalization of Minority Rights in Poscommunist Europe
Will Kymlicka is Canada Research Chair in Political Philosophy at Queen's University and Visiting Professor in the Nationalism Studies Program, Central European University, Budapest. He spoke at an EES noon discussion on November 17, 2004. The following is a summary of his presentation. Meeting Report 307.
Over the past 15 years, a fascinating experiment has taken place in Europe regarding the codification of minority rights. As communism collapsed in 1989, several ethnic conflicts broke out in the Caucuses and Balkans, and commentators feared that ethnic violence would spiral out of control throughout Central and Eastern Europe. In response, Western democracies decided to "internationalize" the treatment of national minorities in postcommunist Europe, creating a pan-European regime to monitor whether countries are meeting European standards in the treatment of their minorities. Some of these standards have been formulated by the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe (OSCE)–a position established in 1993. Other standards were formulated by the Council of Europe (COE) in its 1995 "Framework Convention for the Protection of National Minorities." Complying with these OSCE and COE standards is required for countries to ‘join the West,' and in particular to join the European Union (EU) and NATO.
There was one problem however. The project of internationalizing minority rights implies that there is some normative consensus on the legitimate claims and rightful entitlements of minority groups. But, there was no such consensus in 1990. Western countries differed significantly in terms of which rights they accorded to which minorities, or even which groups they recognized as ‘minorities.' Drafting international norms under these conditions was a difficult task. The norms had to be substantive enough to address the causes of ethnic violence in postcommunist Europe, yet vague enough so that they could be endorsed by countries with different views about state-minority relations. This has proven to be an almost impossible task.
Three models of minority rights have been proposed in recent European debates: the first is grounded in a right to enjoy one's culture; the second in a right to self-government; the third in a right to effective participation. As we will see, each has run into difficulties and the future of the European experiment in internationalizing minority rights remains uncertain.
Faced with the task of drafting minority rights norms, experts naturally looked for precedents in international law upon which they could build. The obvious precedent was Article 27 of the UN's 1966 International Covenant on Civil and Political Rights (ICCPR), which for many years was the only minority rights norm in international law. Article 27 states that persons belonging to ethnic, religious or linguistic minorities "shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."
While the Article provided a starting point, it was viewed as insufficient for two reasons. First, the right to "enjoy one's culture" as originally formulated included only negative rights of non-interference, rather than positive rights to assistance, funding, autonomy or official language status. In effect, it simply reaffirms that members of minorities must be free to exercise their standard rights of freedom of speech, association, assembly and conscience.
These minimal guarantees, while vital, are inadequate to address the issues underlying violent ethnic conflicts in postcommunist Europe. Those conflicts centred on positive claims such as the right to use a minority language in courts or local administration; the funding of minority schools, universities and media; the extent of local or regional autonomy; guarantees of political representation for minorities; or the prohibition on settlement policies designed to swamp minorities in their historic homelands with settlers from the dominant group. Article 27 says nothing about such claims. It protects civil rights relating to cultural expression, but it does not prohibit states from rescinding funding to minority-language schools, abolishing local autonomy, gerrymandering electoral rules or encouraging dominant group settlements in minority homelands—the sorts of state policies that often lead to violent conflict. If European standards were to be effective in resolving conflicts, they would have to address such issues.
Article 27 has a second limitation. It applies to all types of ethnocultural minorities, no matter how large or small, recent or historic, territorially concentrated or dispersed. Indeed, the UN Human Rights Committee has declared that it applies even to people visiting a country. Article 27, in other words, articulates a truly universal cultural right—a right that can be claimed by any individual, and carried with her as she moves around the world. Since Art. 27 articulates a universal and portable cultural right, it does not articulate rights that are tied to a group living on what it views as its historic homeland. Yet claims relating to residence on a historic homeland underlie all of the violent ethnic conflicts in postcommunist Europe (Bosnia, Kosovo, Macedonia, Georgia, Chechnya and Nagorno-Karabakh). Indeed, homeland claims are at the heart of most violent ethnic conflicts in the West as well (Basque Country, Cyprus, Corsica and Northern Ireland). In all these cases, minorities claim the right to govern themselves in what they view as their historic homeland, including the right to use their language in public institutions within their traditional territory, and to have their language, history and culture celebrated in the public sphere (eg., in the naming of streets, the choice of holidays and state symbols). None of these claims can plausibly be seen as universal or portable—they only apply to minorities with a particular sort of history and territory. In short, these are all cases of ethnonational (or ethnonationalist) conflict, revolving around competing claims to nationhood and national territory.
To be effective in addressing postcommunist conflicts, European organizations would have to articulate targeted minority rights, focused on the specific types of ethnonational groups involved in these conflicts. As a result, the new European norms are all targeted at so-called "national" minorities. Whereas Art. 27 lumps together "national, ethnic, religious and linguistic" minorities, the COE and OSCE norms refer only to "national minorities." While there is no agreed-upon definition of "national minorities," the term usually refers to historically-settled minorities, living on or near what they view as their national homeland. These are the sorts of groups involved in the destabilizing ethnic conflicts that generated the call for European norms in the first place. Many countries have therefore argued that immigrant groups are not national minorities.
This commitment to developing targeted norms for "national minorities" was courageous. No other international body has attempted to formulate such norms. The UN, International Labor Organization and the Organization of American States have all developed targeted norms regarding "indigenous peoples," and some have also formulated norms for "migrants," but no one had previously attempted to formulate norms directed at "national minorities," even though conflicts between states and homeland national groups are a main cause of ethnic violence globally (e.g., Kashmir, Kurdistan, Tamil Eelam, Aceh, Tigray, etc.).
Unfortunately, having set themselves this courageous task, I believe that European organizations then lost their nerve. The COE and OSCE norms do not in fact address the challenges raised by national minorities. There is no discussion of how to resolve (often competing) claims relating to territory and self-government, how to assign official language status and no guarantees that minorities can pursue higher-level education or professional accomplishment in their own language. States can fully respect these standards and yet centralize power in such a way that all decisions are made in forums controlled by the dominant national group. They can also organize higher education, professional accreditation and political offices so that members of minorities must linguistically assimilate in order to achieve professional success and political power. In short, these norms do not address the clash between minority self-government claims and centralizing state policies that generated destabilizing ethnic conflicts in the first place.
In fact, the COE and OSCE norms are essentially a revised version of the Art. 27 right to enjoy one's culture, strengthened to include certain modest positive rights such as public funding of minority elementary schools, the right to spell one's surname in accordance with one's own language and the right to submit documents to public authorities in the minority language. These changes are significant, but they do not address the distinctive characteristics and aspirations of national minorities—ie., their sense of nationhood and claims to a national homeland. What such groups typically seek is not just the right as individuals to join with other individuals in enacting particular cultural practices, but the right as a national community to govern themselves on their homeland, and to use their self-government powers to express and celebrate their language, history and culture in public space and public institutions. Such national(ist) aspirations cannot be captured by a strengthened interpretation of the idea of a "right to enjoy one's culture."
A second approach starts from the right to "self-determination." This is also a well-established norm in international law—Art. 1 of the ICCPR states that "all peoples" have a right to self-determination. In practice, however, this norm has only been applied to some peoples—namely to those that have been subject to colonization from overseas. National minorities within a territorially contiguous state had not been recognized previously as separate "peoples" with a right of self-determination, no matter how culturally or historically distinct they are. Groups such as the Scots or Kurds may think of themselves as distinct "peoples," and most historians and social scientists may accept this label, but the international community has not recognized them as such.
One reason for this reluctance to treat national minorities as "peoples" is that the right of self-determination has typically been interpreted to entail a right to an independent state and it would be destabilizing to give all national minorities the right to secede. However, many commentators have proposed that national minorities could be accorded a more modest right of self-determination that secures self-government within the boundaries of a larger state. This is often referred to as the idea of "internal self-determination," exemplified by various forms of territorial autonomy.
In the early 1990s, it seemed that such a norm might be adopted in the European context. The very first statement issued on minority rights after the collapse of communism—the 1990 OSCE Copenhagen declaration—described territorial autonomy as a desirable practice. An even stronger endorsement came in 1993 in Recommendation 1201 of the Council of Europe Parliamentary Assembly. It contained a clause stating that "in the regions where they are a majority, the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities."
Many people expected this parliamentary recommendation to influence the Council's Framework Convention. After all, a similar norm had been included in international declarations on indigenous rights (eg., in the UN's 1993 Draft Declaration on the Rights of Indigenous Peoples). Moreover, most Western democracies have accepted the need for territorial autonomy to accommodate their national minorities—eg., Catalonia, the Basque Country, Scotland, Wales, Flanders, South Tyrol, Aland Islands, Quebec and Puerto Rico—and this seems to be working well. If there is such a thing as a "standard practice" regarding the treatment of national minorities in consolidated democracies, it is some version of territorial autonomy.
However, the idea of standardizing a right to internal self-determination proved too controversial. Many governments in Eastern Europe feared that granting a right to autonomy would lead to problems of both "escalation" (i.e., claims for internal self-determination will escalate into full-blown secession) and "proliferation" (i.e., claims for internal self-determination by one group will encourage other groups to demand their own autonomy).
These two fears were present in the West as well, and yet Western states have largely adopted internal autonomy. Fears of escalation and proliferation have turned out to be exaggerated in the Western context. However, the risk that these fears would be realized are exacerbated in postcommunist countries by the fact that national minorities often share a common ethnic identity with a neighbouring state, which they may view as their "kin-state" (e.g., ethnic Hungarian minorities in Slovakia vis-à-vis Hungary). In such cases, the fear of escalation is not so much that minorities will become secessionist, but that they will be irredentist—ie., that they will serve as a fifth-column supporting efforts by their kin-state to take over part or all of a neighboring country.
More generally, the very idea of recognizing minorities as "nations within," possessed of their own inherent rights to self-government, challenges the ideology of most postcommunist states. These states aspire to be unified nation states, premised on a singular conception of popular sovereignty, rather than unions or federations of two or more peoples.
For a variety of reasons, then, claims to internal self-determination have been resisted in postcommunist Europe. There was also strong opposition in some Western countries, particularly France and Greece. And so, efforts to codify a right to self-government are now effectively dead. While the international community has been willing to consider this idea for indigenous peoples, it has proven too controversial in the case of national minorities.
A third approach invokes the principle that the members of national minorities have a right to "effective participation" in public affairs, particularly in matters affecting them. This idea, which is part of OSCE and COE norms, is attractive for several reasons. It sounds admirably democratic. Moreover, it avoids the tokenist connotations of a right to "enjoy one's culture." It recognizes that minorities want not only to speak their languages or profess their religions in private life, but also want to participate as equals in public life. A right to effective participation recognizes this political dimension of minority aspirations, while avoiding the "radical" idea of national self-determination.
The main attraction of effective participation is that it can be interpreted in conflicting ways, and so can paper over deep disagreements about state-minority relations. We can distinguish three possible interpretations. On the most minimal reading, the right to effective participation simply means that the members of national minorities should not face discrimination in the exercise of their standard political rights to vote, engage in advocacy and run for office. On a somewhat more robust reading, effective participation requires not just that members of minorities can vote or run for office, but that they actually achieve some degree of representation in the legislature. This might prohibit attempts by states to gerrymander the boundaries of electoral districts so as to make it more difficult to elect minority representatives.
But neither of these two interpretations—focusing on the non-discriminatory exercise of political rights and equitable representation—gets to the heart of most cases of serious ethnic conflict. Even when minorities are able to participate without discrimination and even when they are represented in proportion to their population, they may still be permanent losers in the democratic process. This is particularly true in deeply divided societies, where the dominant group views the minority as potentially disloyal, and therefore votes as a bloc against any policies that empower minorities. (Consider the nearly-universal opposition to autonomy for the Hungarian-dominant regions in Slovakia.) In these contexts, it may not matter whether minorities exercise their vote or elect MPs in accordance with their numbers: they will still be permanently out-voted.
Taken literally, the term "effective participation" precludes this situation of national minorities being permanent political minorities. "Effective participation" implies that participation should have an effect, and the only way to ensure this within divided societies may be to adopt some form of power-sharing. This is the maximalist reading of a right to effective participation—one that requires counter-majoritarian forms of federal or consociational power-sharing. This interpretation is endorsed by many minority organizations, but it is strongly resisted by most states, for the same reason that earlier references to internal self-determination were resisted (fears of escalation, proliferation, irredentism, etc.). Having blocked the codification of a right to internal autonomy, states are not going to accept an interpretation of effective participation that provides a back-door for autonomy. Agreement on a right to effective participation was possible precisely because it was seen as an alternative to, not a vehicle for, minority self-government. The interpretation of effective participation is therefore likely to remain at the level of non-discrimination and equitable representation—i.e., at a level which does not address the actual sources of ethnic conflict.
This suggests that the effective participation approach replicates rather than resolves the problems with the other two approaches. If effective participation is interpreted maximally to entail power-sharing, then it is too strong to be acceptable to states, as was internal self-determination. If it is interpreted minimally to cover only non-discrimination and equitable representation, then it is too weak to actually resolve serious cases of ethnic conflict, as was the right to culture.
In short, none of the three existing models offers a basis for responding to the claims of national minorities that is both acceptable and effective. Perhaps some other option will emerge that is more successful. If not, the brave European experiment in codifying the rights of national minorities may not endure.