Definitions and justifications: Minority and indigenous rights in a Central/East European context

Human Rights Quarterly

Volumn 22, Issue 4, 2000, Pages 1011-1050

  Aukerman, Miriam J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ETHNIC MINORITY; HUMAN RIGHTS; INDIGENOUS POPULATION; TERMINOLOGY;

(CENTRAL); (EAST); EUROPE;

EID: 0034541761     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2000.0041     Document Type: Article

References (153)

1. See Draft Declaration on the Rights of Indigenous Peoples, art. 8, U.N. Doc. E/CN.4/ Sub.2/1993/29 [hereinafter Draft Declaration].
2. See I.L.O. Convention No. 169, 27 June 1989, 28 I.L.M. 1382, 1384-85 (1989). I.L.O. Convention No. 169 is intended to replace I.L.O. Convention No. 107. However, the new Convention has not yet been widely ratified.
3. See World Bank Operational Directive: Indigenous Peoples, reprinted in IWGIA, NEWSLETTER, Nov./Dec. 1991, at 19 [hereinafter Operational Directive].
4. See Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy, 92 AM. J. INT'L. L. 414 (1998).
5. See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted 18 Dec. 1992, G.A. Res. 47/135, U.N. GAOR, 47th Sess., at 2, U.N. Doc. A/Res/47/135/Annex 2 (1992), reprinted in 32 I.L.M. 911 (1993) [hereinafter Minorities Declaration].
6. See Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, preamble, 34 I.L.M. 351, reprinted in Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 HUM. RTS. L.J. 92 (1995) [hereinafter Framework Convention].
7. Russel Lawrence Barsh, Indigenous Peoples in the 1990s: From Object to Subject of International Law?, 7 HARV. HUM. RTS. J. 33, 81-82 (1994).
8. Operational Directive, supra note 3, ¶ 5.
9. Kingsbury, supra note 4, at 414.
10. See id. at 419-20.
11. Indigenous communities, peoples, and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. This historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: Occupation of ancestral lands, or at least part of them; Common ancestry with the original occupants of these lands; Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, life-style, etc.); Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language); Residence in certain parts of the country, or in certain regions of the world; Other relevant factors. JOSÉ R. MARTÍNEZ COBO, SPECIAL RAPPORTEUR OF THE SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES, STUDY OF THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS POPULATIONS, ¶¶ 379-80, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4 (1986).
12. Article 1(1) of the Convention concerning Indigenous and Tribal Peoples in Independent Countries stipulates that the Convention applies to: tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. I.L.O. Convention No. 169, supra note 2.
13. Kingsbury, supra note 4, at 420.
14. The World Bank Operational Directive states: The terms "indigenous peoples," "indigenous ethnic minorities," "tribal groups," and "scheduled tribes" describe social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. For the purposes of this directive, "indigenous peoples" is the term that will be used to refer to these groups. Because of the varied and changing contexts in which indigenous peoples are found, no single definition can capture their diversity. Indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labor or even small-scale marketoriented [sic] activities. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics: (a) a close attachment to ancestral territories and to the natural resources in these areas; (b) a self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production. Task managers (TMs) must exercise judgment in determining the populations to which this directive applies and should make use of specialized anthropological and sociological experts throughout the project cycle. Operational Directive, supra note 3, ¶¶ 3, 5.
15. See Working Paper on the Concept of "Indigenous People," Submitted by the Chairperson-Rapporteur, Ms. Erica-Irene A. Daes, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, 40th Sess., ¶ 36, U.N. Doc. E/CN.4/Sub.2/AC.4/ 1996/2 (1996) [hereinafter Daes, Working Paper].
16. Draft Declaration, supra note 1, arts. 6, 7, 8.
17. See Daes, Working Paper, supra note 15, ¶ 35.
18. Daes explains that the Working Group has used a flexible approach to determining eligibility to participate in sessions, relying on "organizations of indigenous peoples themselves to draw attention to any improper assertions of the right to participate as 'indigenous' peoples." Daes further argues that this approach shows that "the gradual evolution of the concept of 'indigenous' in practice, and in cooperation with indigenous peoples themselves, is sufficiently practical and effective as a method of screening the claims of groups whose legal character may be challenged." Daes, Working Paper, supra note 15 ¶ 68; see also Note by the Chairperson-Rapporteur of the Working Group on Indigenous Populations, Ms. Erica-Irene Daes, on criteria which might be applied when considering the concept of Indigenous Peoples, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on the Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, 13th Sess., ¶ 4, U.N. Doc. E/ CN.4/Sub.2/AC.4/1995/3 [hereinafter Daes, Criteria].
19. See Daes, Criteria, supra note 18, ¶ 5.
20. See Kingsbury, supra note 4, at 441.
21. See COBO, supra note 11.
22. Second Progress Report of the Special Rapporteur on Discrimination against Indigenous Peoples, Miquesl Alfonso Martínez, U.N. Doc. E/CN.4/Sub.2/1995/27, ¶ 101 (1995). Martínez is criticizing the Cobo definition as not being restrictive enough, since it refers both to "pre-invasion" and "pre-colonial" societies. Martínez argues that the term invasion ́presumably includes invasion by other indigenous peoples.́ Id. ¶ 100. Others, however, have read the Cobo definition to refer only to colonized peoples. See Daes, Working Paper, supra note 15, ¶¶ 61-62.
23. See Martínez, supra note 22, ¶ 102-05.
24. Kingsbury notes that: [m]aintenance of a strict requirement of such continuity [with a preinvasion or precolonial society] - a requirement that owes at least part of its inspiration to perceptions and experience in areas of European settlement - would be likely both to complicate and to restrict, without altogether excluding, the applicability of the concept of 'indigenous peoples' in other parts of the world. Kingsbury, supra note 4, at 433. See also Daes, Working Paper, supra note 15, ¶ 61.
25. Daes, Working Paper, supra note 15, ¶ 63.
26. Kingsbury, supra note 4, at 424.
27. Daes, Working Paper, supra note 15, ¶ 47.
28. Martinez, supra note 22, ¶ 95.
29. See Unrepresented Nations and Peoples Organisation, UNPO Monitor, Friday, 31 July 1998 (visited 21 July 2000) 〈http://www.unpo.org/unpomonit_0798/frievday5.html〉.
30. Barsh, supra note 7, at 81.
31. Kingsbury, supra note 4, at 419.
32. Barsh, supra note 7, at 81.
33. The Nenets are a self-identified indigenous people of the Barents Region, whose traditional culture focuses on reindeer-herding. For more about the Nenets, see The Saami and Nenets Language and Culture in the Barents Region (visited 21 July 2000) 〈http://www.itek.norut.no/itek/barent/Sektretariatet/sami.html〉.
34. See Unrepresented Nations and Peoples Organisation, UNPO Monitor, Thursday, 31 July 1997 (visited 21 July 2000) 〈http://www.unpo.org/wgip97/thuaeng.html〉.
35. The Evenki people are traditional hunters and reindeer-herders who live scattered over vast parts of Siberia and northern China. Previously nomadic, they are now mostly sedentary. The Dolgans are closely related to the Evenki, and are also a previously-nomadic, reindeer-herding society. Industrialization and pollution have devastated much of traditional Dolgan land, and some Dolgans have been assimilated into Yakut culture. For more information about the Evenki, see The Evenki Society (visited 21 July 2000) 〈http://www.spri.cam.ac.uk/people/jeoh2/2eg_info.htm〉. For more information about the Dolgan people, see NUPI Centre for Russian Studies Database, Ethnic Groups: Dolgans (visited 21 July 2000) 〈http://www.nupi.no/cgi-win/Russland/ etnisk_b.exe/Dolgani〉.
36. The Evenki people are traditional hunters and reindeer-herders who live scattered over vast parts of Siberia and northern China. Previously nomadic, they are now mostly sedentary. The Dolgans are closely related to the Evenki, and are also a previously- nomadic, reindeer-herding society. Industrialization and pollution have devastated much of traditional Dolgan land, and some Dolgans have been assimilated into Yakut culture. For more information about the Evenki, see The Evenki Society (visited 21 July 2000) 〈http://www.spri.cam.ac.uk/people/jeoh2/2eg_info.htm〉. For more information about the Dolgan people, see NUPI Centre for Russian Studies Database, Ethnic Groups: Dolgans (visited 21 July 2000) 〈http://www.nupi.no/cgi-win/Russland/ etnisk_b.exe/Dolgani〉.
37. See UNPO Monitor, supra note 34.
38. See NUPI Centre for Russian Studies Database, Ethnic Groups: Chechens (visited 21 July 2000) 〈http://www.nupi.no/cgi-win/Russland/etnisk_b.exe/Chechenian〉.
39. See NUPI Centre for Russian Studies Database, Ethnic Groups: Abkhaz (visited 21 July 2000) 〈http://www.nupi.no/cgi-win/Russland/etnisk_b.exe/Abkhazian〉.
40. See Ethnic Greeks in Albania (visited 21 July 2000) 〈http://www.bsos.umd.edu/cidcm/ mar/albgrks.htm.
41. See Kingsbury, supra note 4.
42. Such a term is necessarily simplistic, and cannot account for the significant variation in approaches among minorities and states in the region. Several comments on the geographical scope of this term, as applied here, are warranted. First, Western European states have had a significant impact on the development of minority rights protections in Central/East Europe. Historically, Western European governments have sought to impose minority rights obligations on Central/East European states, without themselves assuming such obligations. Moreover, in countries like France and Britain, there are long-standing concepts of national identity and citizenship which are significantly different from the ethnically-driven models which characterize most Central/East European states. Although the approaches of some Western European states are similar to those used in Central/East Europe, my analysis does not extend that far, unless otherwise noted. I do not reach the question of whether minority groups in Western Europe should be entitled to the protections described in this article. The applicability of the "Central/East European" approach to the former Soviet Union is similarly unclear. Although Russia itself had no minority obligations under the League of Nations, western portions of what became the Soviet Union did benefit from these treaties, as well as from earlier efforts to protect minorities. This has surely influenced approaches to minority rights in the former Soviet Union (FSU). Moreover, contemporary European efforts to protect minority rights, which reflect the "Central/East European" approach, extend to post-Soviet states. In general, then, I will use the term "Central/East Europe" to include post-Soviet states, as least the westernmost of them. However, it is important to recognize that many of the groups in the region most readily recognizable as "indigenous peoples" do not live in Central Europe, but are peoples of the northern and Far Eastern portions of the FSU, regions not covered under the interwar minority protection regime. Moreover, the long tradition of imperial control, whether Russian or Soviet, has also had a significant impact on the conception of minority rights in the FSU. Lenin was one of the champions of self-determination, and the Soviet Union, on paper, was a multinational union formed as the result of the self-determination of nations. Constituent units had the right to secede. However, Marxist doctrine envisioned that with the achievement of communism, national differences would disappear. In practice, national and ethnic groups were the target of brutal repression and forcible relocation, particularly under Stalin. See Asbjørn Eide, Minority Situations: In Search of Peaceful and Constructive Solutions, 66 NOTRE DAME L. REV. 1311, 1327-28 (1991) [hereinafter Eide, Minority Situations]; Douglas Sanders, Nationalities Policies of the Soviet Union and China (visited 21 July 2000) 〈http://www.halcyon.com/pub/FWDP/Eurasia/sinoussr .txt〉.
43. Such a term is necessarily simplistic, and cannot account for the significant variation in approaches among minorities and states in the region. Several comments on the geographical scope of this term, as applied here, are warranted. First, Western European states have had a significant impact on the development of minority rights protections in Central/East Europe. Historically, Western European governments have sought to impose minority rights obligations on Central/East European states, without themselves assuming such obligations. Moreover, in countries like France and Britain, there are long-standing concepts of national identity and citizenship which are significantly different from the ethnically-driven models which characterize most Central/East European states. Although the approaches of some Western European states are similar to those used in Central/East Europe, my analysis does not extend that far, unless otherwise noted. I do not reach the question of whether minority groups in Western Europe should be entitled to the protections described in this article. The applicability of the "Central/East European" approach to the former Soviet Union is similarly unclear. Although Russia itself had no minority obligations under the League of Nations, western portions of what became the Soviet Union did benefit from these treaties, as well as from earlier efforts to protect minorities. This has surely influenced approaches to minority rights in the former Soviet Union (FSU). Moreover, contemporary European efforts to protect minority rights, which reflect the "Central/East European" approach, extend to post-Soviet states. In general, then, I will use the term "Central/East Europe" to include post-Soviet states, as least the westernmost of them. However, it is important to recognize that many of the groups in the region most readily recognizable as "indigenous peoples" do not live in Central Europe, but are peoples of the northern and Far Eastern portions of the FSU, regions not covered under the interwar minority protection regime. Moreover, the long tradition of imperial control, whether Russian or Soviet, has also had a significant impact on the conception of minority rights in the FSU. Lenin was one of the champions of self-determination, and the Soviet Union, on paper, was a multinational union formed as the result of the self-determination of nations. Constituent units had the right to secede. However, Marxist doctrine envisioned that with the achievement of communism, national differences would disappear. In practice, national and ethnic groups were the target of brutal repression and forcible relocation, particularly under Stalin. See Asbjørn Eide, Minority Situations: In Search of Peaceful and Constructive Solutions, 66 NOTRE DAME L. REV. 1311, 1327-28 (1991) [hereinafter Eide, Minority Situations]; Douglas Sanders, Nationalities Policies of the Soviet Union and China (visited 21 July 2000) 〈http://www.halcyon.com/pub/FWDP/Eurasia/sinoussr .txt〉.
44. Such a term is necessarily simplistic, and cannot account for the significant variation in approaches among minorities and states in the region. Several comments on the geographical scope of this term, as applied here, are warranted. First, Western European states have had a significant impact on the development of minority rights protections in Central/East Europe. Historically, Western European governments have sought to impose minority rights obligations on Central/East European states, without themselves assuming such obligations. Moreover, in countries like France and Britain, there are long-standing concepts of national identity and citizenship which are significantly different from the ethnically-driven models which characterize most Central/East European states. Although the approaches of some Western European states are similar to those used in Central/East Europe, my analysis does not extend that far, unless otherwise noted. I do not reach the question of whether minority groups in Western Europe should be entitled to the protections described in this article. The applicability of the "Central/East European" approach to the former Soviet Union is similarly unclear. Although Russia itself had no minority obligations under the League of Nations, western portions of what became the Soviet Union did benefit from these treaties, as well as from earlier efforts to protect minorities. This has surely influenced approaches to minority rights in the former Soviet Union (FSU). Moreover, contemporary European efforts to protect minority rights, which reflect the "Central/East European" approach, extend to post-Soviet states. In general, then, I will use the term "Central/East Europe" to include post-Soviet states, as least the westernmost of them. However, it is important to recognize that many of the groups in the region most readily recognizable as "indigenous peoples" do not live in Central Europe, but are peoples of the northern and Far Eastern portions of the FSU, regions not covered under the interwar minority protection regime. Moreover, the long tradition of imperial control, whether Russian or Soviet, has also had a significant impact on the conception of minority rights in the FSU. Lenin was one of the champions of self-determination, and the Soviet Union, on paper, was a multinational union formed as the result of the self-determination of nations. Constituent units had the right to secede. However, Marxist doctrine envisioned that with the achievement of communism, national differences would disappear. In practice, national and ethnic groups were the target of brutal repression and forcible relocation, particularly under Stalin. See Asbjørn Eide, Minority Situations: In Search of Peaceful and Constructive Solutions, 66 NOTRE DAME L. REV. 1311, 1327-28 (1991) [hereinafter Eide, Minority Situations]; Douglas Sanders, Nationalities Policies of the Soviet Union and China (visited 21 July 2000) 〈http://www.halcyon.com/pub/FWDP/Eurasia/sinoussr .txt〉.
45. The post-war human rights framework was constructed around the rights of individual human beings, not around the special needs of minority groups. As Hurst Hannum noted, "[t]he drafters of the United Nations Charter seemed to assume . . . that European and other minorities would be satisfied if their individual rights, particularly those of equality and non-discrimination, were respected." Hurst Hannum, Contemporary Developments in the International Protection of the Rights of Minorities, 66 NOTRE DAME L. REV. 1431, 1434 (1991). Thus neither the United Nations Charter nor the Universal Declaration of Human Rights refer to minorities. See Elizabeth F. Defeis, Minority Protections and Bilateral Agreements: An Effective Mechanism, 22 HASTINGS INT'L & COMP. L. REV. 291, 295 (1999). See also David Wippman, The Evolution and Implementation of Minority Rights, 66 FORDHAM L. REV. 597, 602-03 (1997).
46. The post-war human rights framework was constructed around the rights of individual human beings, not around the special needs of minority groups. As Hurst Hannum noted, "[t]he drafters of the United Nations Charter seemed to assume . . . that European and other minorities would be satisfied if their individual rights, particularly those of equality and non-discrimination, were respected." Hurst Hannum, Contemporary Developments in the International Protection of the Rights of Minorities, 66 NOTRE DAME L. REV. 1431, 1434 (1991). Thus neither the United Nations Charter nor the Universal Declaration of Human Rights refer to minorities. See Elizabeth F. Defeis, Minority Protections and Bilateral Agreements: An Effective Mechanism, 22 HASTINGS INT'L & COMP. L. REV. 291, 295 (1999). See also David Wippman, The Evolution and Implementation of Minority Rights, 66 FORDHAM L. REV. 597, 602-03 (1997).
47. The post-war human rights framework was constructed around the rights of individual human beings, not around the special needs of minority groups. As Hurst Hannum noted, "[t]he drafters of the United Nations Charter seemed to assume . . . that European and other minorities would be satisfied if their individual rights, particularly those of equality and non-discrimination, were respected." Hurst Hannum, Contemporary Developments in the International Protection of the Rights of Minorities, 66 NOTRE DAME L. REV. 1431, 1434 (1991). Thus neither the United Nations Charter nor the Universal Declaration of Human Rights refer to minorities. See Elizabeth F. Defeis, Minority Protections and Bilateral Agreements: An Effective Mechanism, 22 HASTINGS INT'L & COMP. L. REV. 291, 295 (1999). See also David Wippman, The Evolution and Implementation of Minority Rights, 66 FORDHAM L. REV. 597, 602-03 (1997).
48. See Jelena Pejic, Minority Rights in International Law, 19 HUM. RTS. Q. 666, 667-70 (1997) (tracing the development of minority protection treasures in the post-WWII years); Hannum, supra note 42, at 1435-37 (tracing the development of minority protection treasures in the post-WWII years); Jane Wright, The OSCE and the Protection of Minority Rights, 18 HUM. RTS. Q. 190, 193-96 (1996) (describing the history of OSCE minority protection measures during the 1970s).
49. See Jelena Pejic, Minority Rights in International Law, 19 HUM. RTS. Q. 666, 667-70 (1997) (tracing the development of minority protection treasures in the post-WWII years); Hannum, supra note 42, at 1435-37 (tracing the development of minority protection treasures in the post-WWII years); Jane Wright, The OSCE and the Protection of Minority Rights, 18 HUM. RTS. Q. 190, 193-96 (1996) (describing the history of OSCE minority protection measures during the 1970s).
50. Hannum, supra note 42, at 1439-40.
51. See Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (29 June 1990), reprinted in THE CONFERENCE ON SECURITY AND COOPERATION IN EUROPE: ANALYSIS AND BASIC DOCUMENTS, 1972-1993, at 439 (Arie Bloed ed., 1993) [hereinafter Copenhagen Document]. On 1 January 1995, the CSCE became the OSCE. Throughout this paper, I will refer to the OSCE.
52. See generally Alan Phillips, Minority Rights: Some New Intergovernmental Approaches in Europe, in SCAPEGOATS AND SOCIAL ACTORS: THE EXCLUSION AND INTEGRATION OF MINORITIES IN WESTERN AND EASTERN EUROPE 112 (Danièle Joly ed., 1998) (reviews recent intergovernmental developments related to minorities in Europe).
53. See Framework Convention, supra note 6, at pmble. See also the Council of Europe website (visited 21 July 2000) 〈http://www.humanrights.coe.int/Minorities/Eng/ FrameworkConvention/FCNMintro.htm〉
54. See European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Council of Europe, Europ. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993) [hereinafter European Charter].
55. See European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Council of Europe, Europ. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993) [hereinafter European Charter].
56. There are, of course, also significant differences in approach between different minority groups and between different states.
57. See, e.g., Geoff Gilbert, The Council of Europe and Minority Rights, 18 HUM. RTS. Q. 160, 189 (1996).
58. Explanatory Memorandum on the Framework Convention for the Protection of National Minorities, ¶ 12, reprinted in Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 HUM. RTS. L.J. 92 (1995) [hereinafter Explanatory Memorandum].
59. Western diplomats sometimes sought to draw a convenient distinction between Western and Eastern minorities on the basis of history and past oppression. At one League session, for example, a Western diplomat argued that: [t]he mere coexistence of groups of persons forming collective entities, racially different, in the territory and under the jurisdiction of a State is not sufficient to create the obligation to recognise the existence in that State, side by side with the majority of its population, of a minority requiring protection entrusted to the League of Nations. In order that a minority, according to the meaning of the present Treaties, should exist, it must be the product of struggles, going back centuries or perhaps for shorter periods, between certain nationalities, and of the transference of certain territories from one sovereignty to another through successive historic phases. . . . This means that [in the west] the existence of minorities in the sense of persons with a right to the protection of the League of Nations is impossible. Protection of Linguistic, Racial or Religious Minorities by the League of Nations: Resolutions and Extracts from the Minutes of the Council, Resolutions and Reports adopted by the Assembly, relating to the Procedure to be followed in the Questions concerning the Protection of Minorities, League of Nations Doc. C.8 M.5 1931 1[B] at 43 (1931) [hereinafter League of Nations Protection].
60. See Minorities Declaration, supra note 5.
61. Framework Convention, supra note 6, at art. 3.
62. Copenhagen Document, supra note 45, at art. 32.
63. A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language. FRANCESCO CAPOTORTI, SPECIAL RAPPORTEUR OF THE SUB-COMM'N ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, ¶ 568, U.N. Doc. E/CN.4/Sub.2/ 384/Rev.1, U.N. Sales No. E.78.XIV.1 (1979).
64. A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law. Jules Deschênes, Promotion, Protection and Restoration of Human Rights at the National, Regional and International Levels, U.N. ESCOR, Sub-Comm'n on the Prevention of Discrimination and Protection of Minorities, 38th Sess., Agenda Item 16(c), ¶ 181, U.N. Doc. E/CN.4/Sub.2/1985/31 (1985).
65. Author's translation of: Als Nation ist somit eine Gemeinschaft von Menschen, eine soziale Großgruppe zu bezeichnen, die durch bestimmte objektive und subjektive Voraussetzungen zu einer zumindest in Teilbereichen homogenen Gesellschaft integriert wird, die sich dieser besonderen politischen Gemeinschaft auch bewußt ist und den Willen zu einem gemeinsamen Staatswesen besitzt. Eine nationale Minderheit ist Teil einer solchen Nation, freilich getrennt von ihr in einem anderen Staat wohnhaft. Daneben gibt es ethnische Gruppen, die aufgrund ihrer zahlenmäßigen Schwäche und/oder Diasporalage keine politische Nation werden können. Arnold Suppan & Valeria Heuberger, Nationen und Minderheiten in Mittel-, Ost- und Südosteuropa seit 1918, in NATIONEN, NATIONALITÄTEN, MINDERHEITEN: PROBLEME DES NATIONALISMUS IN JUGOSLAWIEN, UNGARN, RUMÄNIEN, DER TSCHECHOSLOWAKEI, BULGARIEN, POLEN, DER UKRAINE, ITALIEN UND ÖSTERREICH 1945-1990, at 11, 12 (Valeria Heuberger et al. eds., 1994).
66. Although Article 5 of the Framework Convention refers to promoting conditions to preserve essential elements of minority identity, defined as religion, language, traditions and cultural heritage, the Explanatory Memorandum takes pains to point out that "[t]his provision does not imply that all ethnic, cultural, linguistic or religious differences necessarily lead to the creation of national minorities." Explanatory Memorandum, supra note 51, ¶ 43.
67. European Charter, supra note 48, at art. 1.
68. I will use Will Kymlicka's term "group-differentiated rights" to refer to rights accorded to particular groups. As Kymlicka suggests, the terms "group rights" and "collective rights" are often misleading, a point I will address below. See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 46 (1995) [hereinafter KYMLICKA, MULTICULTURAL CITIZENSHIP].
69. I will use Will Kymlicka's term "group-differentiated rights" to refer to rights accorded to particular groups. As Kymlicka suggests, the terms "group rights" and "collective rights" are often misleading, a point I will address below. See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 46 (1995) [hereinafter KYMLICKA, MULTICULTURAL CITIZENSHIP].
70. Id. at 108-09.
71. See J.A. LAPONCE, THE PROTECTION OF MINORITIES 16 (1960). This distinction should not be overdrawn. Many minorities who generally desire integration also want to preserve aspects of their cultures, while minorities who favor a non-integrationist approach still want to be treated the same as the majority in certain situations.
72. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, art. I, ¶ 4, reprinted in CENTER FOR THE STUDY OF HUMAN RIGHTS, TWENTY-FIVE HUMAN RIGHTS DOCUMENTS 39, at 40 (1994).
73. See KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 61, at 58-60.
74. Whether or not one accepts the doctrine that immigrants should be required to assimilate - a doctrine the author finds unpalatabe - the concepts of nation-building and the immigrant's choice to join a new society have strongly influenced attitudes towards minority rights in immigrant countries. Kymlicka has argued that even though "[i]mmigrants are no longer expected to assimilate entirely to the norms and customs of the dominant culture, and indeed are encouraged to maintain some aspects of their ethnic particularity . . . . [T]his commitment to 'multiculturalism' or 'polyethnicity' is a shift in how immigrants integrate into the dominant culture, not whether they integrate." Id. at 78.
75. Kymlicka discusses the way that the " Old World/New World" distinction has been used to argue against group-differentiated rights, and the way in which indigenous people have conveniently been ignored when this distinction has been drawn. See id. at 20-21.
76. Draft Declaration, supra note 1, at arts. 6, 7, 8.
77. See Barsh, supra note 7, at 43.
78. See id.
79. See id.
80. Explanatory Memorandum, supra note 51, ¶ 13.
81. Author's translation of: "Aber dieses Recht soll gemeinsam mit anderen Gruppenangehörigen ausgeübt werden können. Ein kollektiver Bezug is also mit Sicherheit vorhanden und wird von der Mindermeinung als Argument für die kollektive Rechts-subjektivität der Gruppe ins Feld geführt." Georg Brunner, Minderheiten und Recht: Die Völkerrechtliche Lage, in NATIONEN, NATIONALITÄTEN, MINDERHEITEN: PROBLEME DES NATIONALISMUS IN JUGOSLAWIEN, UNGARN, RUMÄNIEN, DER TSCHECHOSLOWAKEI, BULGARIEN, POLEN, DER UKRAINE, ITALIEN UND ÖSTERREICH 1945-1990, at 33, 44-45 (Valeria Heuberger et al. eds., 1994).
82. KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 61, at 46.
83. Kymlicka himself seems to suggest that the collective/individual rights debate is largely irrelevant to the protection of minorities. He argues that this debate conflates group rights, that is the rights of communities as opposed to individuals, with special rights, that is rights which are community-specific rather than universal. Group rights are intended to protect communities from destabilizing internal dissent, while special rights are intended to protect communities from external pressures. See Will Kymlicka, Individual and Community Rights, in GROUP RIGHTS 17, 19-22 (Judith Baker ed., 1994) [hereinafter Kymlicka, Community Rights]. Kymlicka argues that "[t]he claim that communities have interests independent of their members is relevant to group rights - it would explain why members of a community are obliged to maintain cultural practices. But it cannot explain special rights - why some rights are unequally distributed between groups." Id. at 22.
84. Kymlicka himself seems to suggest that the collective/individual rights debate is largely irrelevant to the protection of minorities. He argues that this debate conflates group rights, that is the rights of communities as opposed to individuals, with special rights, that is rights which are community-specific rather than universal. Group rights are intended to protect communities from destabilizing internal dissent, while special rights are intended to protect communities from external pressures. See Will Kymlicka, Individual and Community Rights, in GROUP RIGHTS 17, 19-22 (Judith Baker ed., 1994) [hereinafter Kymlicka, Community Rights]. Kymlicka argues that "[t]he claim that communities have interests independent of their members is relevant to group rights -it would explain why members of a community are obliged to maintain cultural practices. But it cannot explain special rights - why some rights are unequally distributed between groups." Id. at 22.
85. Id. at 28.
86. See ATHANASIA SPILIOPOULOU ÅKERMARK, JUSTIFICATIONS OF MINORITY PROTECTION IN INTERNATIONAL LAW 23 (1996).
87. Many states have not accepted the view that indigenous peoples are "peoples" in the meaning of Article I of the U.N. Charter. See Barsh, supra note 7, at 48-49.
88. Olivia Quittner Goldman, Indigenous Peoples and the Right to Self-Determination: Statements by Howard R. Berman, Oren Lyons, and Richard A. Falk, 87 AM. SOC'Y INT'L L. PROC. 190 (1993).
89. Id. at 191.
90. See Draft Declaration, supra note 1.
91. See id., at art. 31.
92. For example, the Byelorussian Soviet Socialist Republic argued at a 1988 meeting of the Working Group that, "[t]he draft declaration should also include a provision to the effect that the exercise of the rights embodied in it should not be prejudicial to the interests of society and the State." Standard-Setting Activities: Evolution of Standards Concerning the Rights of Indigenous Populations, Information Received from Governments, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, 6th Sess., U.N. Doc. E/CN.4/Sub.2/AC.4/1988/2
93. See Raymond N. Kershaw, The League and the Protection of Linguistic, Racial, and Religious Minorities, in PROBLEMS OF PEACE, THIRD SERIES: LECTURES DELIVERED AT THE GENEVA INSTITUTE OF INTERNATIONAL RELATIONS, AUGUST 1928, at 156, 158-59 (Geneva Institute of International Relations ed., 1929).
94. See William E. Rappard, Minorities and the League, in INTERNATIONAL CONCILIATION 330, 333 (1926).
95. League of Nations Protection, supra note 52, at 186.
96. Brunner, supra note 73, at 52.
97. Framework Convention, supra note 6, at pmbl.
98. Framework Convention, supra note 6, at art. 21.
99. In his report on minority protection, United Nations Special Rapporteur Asbjørn Eide defines internal self-determination in largely political terms as: the right of a people living within an independent and sovereign state to freely choose its own government, to adopt representative institutions and to periodically, of at reasonable intervals, elect their representatives through a free procedure and with freedom to choose among alternative candidates or parties. This can be organized through a unitary state system, a federal system, or a system with arrangements for autonomy (home rule) or devolution of power. Eide, Minority Situations, supra note 41, at 1336-37.
100. See JACOB ROBINSON ET AL., WERE THE MINORITIES TREATIES A FAILURE? 236-37 (1943); Hannum, supra note 42, at 1433.
101. See ROBINSON, supra note 91.
102. Framework Convention, supra note 6, at art. 15.
103. Copenhagen Document, supra note 45, at art. 35.
104. Although states may not respect such externally-imposed laws, my point here is that such negotiated legislation is evidence of the international community's sense of what rights are due to Central/East European minorities. See Ethan A. Klingsberg, International Human Rights Intervention on Behalf of Minorities in Post-World War I Eastern Europe and Today: Placebo, Poison, or Panacea? 1993 U. CHI. L. SCH. ROUNDTABLE 1, 12.
105. South West Africa Cases (Second Phase) (Ethiopia v. South Africa; Liberia v. South Africa) 1966 I.C.J. 6, 305-06, available in 1966 WL 2 (I.C.J.).
106. Draft Declaration, supra note 1, at pmbl.
107. Copenhagen Document, supra note 45, at art. 31.
108. Draft Declaration, supra note 1, at pmbl.
109. Id. 101. European Charter, supra note 48, at pmbl.
110. See European Charter for Regional or Minority Languages, Explanatory Report, opened for signature 5 Nov. 1992, Council of Europe, ¶ 10 [hereinafter Explanatory Report].
111. See AKERMARK, supra note 77, at 83.
112. Explanatory Report, supra note 102, ¶ 11.
113. One must reject the argument that the cultural diversity justification applies with greater force to indigenous peoples than to Central/East European minorities, on the theory that indigenous cultures are less like those of Western industrial society. First, the cultures of some Central/East European minorities are arguably more "other," than those of some indigenous groups. More fundamentally, if we base our willingness to protect distinctive cultures on a voyeuristic fascination with notions of the "primitive," we deny the right of non-dominant cultures to change over time.
114. For example, Chairperson Daes argues that "attachment to a particular territory" is a concept which has "never been associated with the concept of 'minorities.'" Daes, Working Paper, supra note 15, ¶ 60.
115. Brunner, supra note 73, at 53-54. Such claims are not limited to the Central/East European context. For example, Howard Adelman, arguing for a right of return, writes of Palestinians: "The vision of the landscape is critical to the sense of presence of a nation. . . . Communities, and the well-being of individuals who seem to have a natural need to belong to them, are constructs both of inherited traditions rooted in soil and of rhetorical constructs often related to uprooting from and return to that soil." Howard Adelman, Refugees: The Right of Return, in GROUP RIGHTS, 164, 171 (Judith Baker ed., 1994).
116. COBO, supra note 11, ¶¶ 196-97.
117. See Kingsbury, supra note 4, at 438.
118. For example, one by-product of common ownership of land is that individual members of indigenous groups are less able to borrow money, a factor which hampers the development of small business. See KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 61, at 43.
119. Kingsbury notes that "the imagery of passive victims living at one with nature and beset by unwelcome modernity is misleading as a general account of the practices and aspirations of many of the groups participating in the indigenous peoples' movement. Most of these groups are active agents and practitioners of 'development' and 'conservation,' and they vary considerably in their practices and attitudes relating to resource exploitation and environmental maintenance." Kingsbury, supra note 4, at 440.
120. See Kymlicka, Community Rights, supra note 75, at 26.
121. To the very limited extent that constitutional arrangements in post-World War II Europe reflected negotiated arrangements by legitimate representatives of different national groups, one might draw an analogy to the historical agreements of indigenous peoples. Where such agreements exist, however, their relevance is less as a historical compact than as a legal or constitutional commitment.
122. Chairperson Daes has argued that "priority in time" has "never been associated with the concept of 'minorities.'" Daes, Working Paper, supra note 15, ¶ 60.
123. For example, the history of Kosovo is told very differently by Albanians as compared to Serbs.
124. Draft Declaration, supra note 1, at pmbl.
125. Operational Directive, supra note 3, ¶ 3.
126. Gilbert Murray, National Tolerance as an International Obligation, in PROBLEMS OF PEACE, FIFTH SERIES: LECTURES DELIVERED AT THE GENEVA INSTITUTE OF INTERNATIONAL RELATIONS, AUGUST 1930, at 167, 182 (Geneva Institute of International Relations ed., 1931).
127. Goldman, supra note 79, at 198.
128. See Andras Sajo, Protecting Nation States and National Minorities: A Modest Case for Nationalism in Eastern Europe, 1993 U. CHI. L. SCHOOL ROUNDTABLE 53, 65.
129. Asbjørn Eide, Minority Situations: In Search of Peaceful and Constructive Solutions, 66 NOTRE DAME L. REV. 1311, 1327-28 (1991) (describing the population transfers undertaken in Greece and Turkey after WWI, and in the Soviet Union under Stalin); Istvan Deak, Conference Paper: Postworld War II Political Justice in a Historical Perspective, 149 MIL. L. REV. 137, 140 (1995) (describing the expulsion of some thirteen million German civilians from other Central/East European countries at the end of WWII). In addition to ethnic conflict, both war and the nationalization of property by governments have resulted in significant expropriation of property - from both minorities and majorities - in Central/East Europe.
130. Asbjørn Eide, Minority Situations: In Search of Peaceful and Constructive Solutions, 66 NOTRE DAME L. REV. 1311, 1327-28 (1991) (describing the population transfers undertaken in Greece and Turkey after WWI, and in the Soviet Union under Stalin); Istvan Deak, Conference Paper: Postworld War II Political Justice in a Historical Perspective, 149 MIL. L. REV. 137, 140 (1995) (describing the expulsion of some thirteen million German civilians from other Central/East European countries at the end of WWII). In addition to ethnic conflict, both war and the nationalization of property by governments have resulted in significant expropriation of property - from both minorities and majorities - in Central/East Europe.
131. For example, the jews whose property was taken by the Nazis, the Ukranian Kulaks who lost their land to collectivization, or the Bosnians, Serbs, Croats, and Albanians who were dispossessed during the wars in the former Yugoslavia, were generally individual property holders. What and how much they lost was a function of wealth, geographic location, and historical circumstance. By contrast. Native Americans or aboriginal peoples held territories in common, and thus, when such lands were taken, this dispossession necessarily affected the entire people.
132. Murray, supra note 118, at 182.
133. See John Quigley, Russian Minorities in the Newly Independent States, 3 ILSA J. INT'L & COMP. L. 455 (1997).
134. Framework Convention, supra note 6, at pmbl.
135. See id. The historical background to the Convention is also instructive. The Explanatory Memorandum notes that the "decisive step" towards the Convention was taken at the Council of Europe's Vienna summit of Heads of State 8-9 Oct. 1993, where "it was agreed that the national minorities which the upheavals of history have established in Europe had to be protected and respected as a contribution to peace and stability." Explanatory Memorandum, supra note 51, ¶ 5 (emphasis added).
136. See OSCE High Commissioner on National Minorities Mandate (visited 21 July 2000) 〈www.osce.org/hcnm/mandate.htm〉.
137. Wright, supra note 43, at 200.
138. Asbjørn Eide, Protection of Minorities - Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, 54th Sess., Agenda Item 17, ¶ 28, U.N. Doc. E/CN.4/Sub.2/1993/34 (1993) [hereinafter Eide, Protection of Minorities].
139. Asbjørn Eide, Protection of Minorities - Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, 54th Sess., Agenda Item 17, ¶ 28, U.N. Doc. E/CN.4/Sub.2/1993/34 (1993) [hereinafter Eide, Protection of Minorities].
140. KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 61, at 109-10. Kymlicka goes on to provide an example from the North American context, arguing that because indigenous people are more vulnerable to majority decisions than Québécois or Puerto Ricans, external restrictions on the sale of land are justified in relation to indigenous people, but not in the case of Quebec or Puerto Rico.
141. See Commission on Security and Cooperation in Europe, CSCE Helsinki Document 1992: The Challenges of Change, Section VI (29), adopted by the Helsinki Summit Meeting on 10 July 1992, reprinted in THE CHALLENGES OF CHANGE: THE HELSINKI SUMMIT OF THE CSCE AND ITS AFTERMATH 385, 427 (Arie Bloed ed., 1994).
142. This recognition may be particularly important given that Europe has been "reluctant to accept distinctions between indigenous peoples and 'minorities.'" Barsh, supra note 7, at 70.
143. Eide, Protection of Minorities, supra note 121, ¶ 22. It may also be that there is a difference in the degree of precision needed for declarations versus binding legal instruments. See Gilbert, supra note 50, at 162.
144. See Kingsbury, supra note 4, at 415.
145. Kingsbury, supra note 4, at 415.
146. See Martin Alexanderson, Why the Framework Convention Should Be Ratified (visited 21 July 2000) 〈http://www.riga.lv/minelres/publicat/Alexan_1.htm〉.
147. Fred Bertram, The Particular Problems of (the) Roma, 3 U.C. DAVIS J. INT'L L. & POL'Y 1, 13 (1997). See, e.g., Zweiter Menschenrechtsbericht der Bundesregierung [Second Human Rights Report of the Federal Government], Deutscher Bundestag Drucksache 12/6330: 2 Dec. 1993, at 8.
148. Kingsbury, supra note 4, at 415.
149. Explanatory Memorandum, supra note 51, ¶ 11.
150. See Gilbert, supra note 50, at 189.
151. Max van der Stoel, Keynote Address to the OSCE Human Dimension Seminar on Case Studies on National Minority Issues: Positive Results (24 May 1993), cited in Wright, supra note 43, at 202.
152. See Wright, supra note 43, at 200-05.
153. Barsh, supra note 7, at 81-82.