The internationalization of minority rights

International Journal of Constitutional Law

Volumn 6, Issue 1, 2008, Pages 1-32

  Kymlicka, Will ^a  

^a QUEEN S UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

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EID: 39049088242     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom032     Document Type: Article

References (77)

1. See John McGarry, Brendan O'Leary & Richard Simeon, Integration or Accommodation? The Enduring Debate in Conflict Regulation, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (Sujit Choudhry ed., Oxford Univ. Press, forthcoming 2008).
2. Id.
3. Adopted by the General Assembly in Resolution 47/135. See U.N. Doc. A/RES/47/135/Annex (Dec. 18, 1993).
4. First introduced in the Working Group on Minorities in 1993, the draft declaration was approved by the Human Rights Council in 2006. See Human Rights Council Res. 1/2, Annex, U.N. Doc. A/HRC/RES/1/2/Annex (June 29, 2006). The Council approved itby a vote of 30 in favor to 2 against (Canada and Russian Federation), with 12 abstentions, and forwarded it to the General Assembly for consideration; as of this writing, action is still pending. However, despite its lack of legal force, its core ideas have been picked up by various organs and agencies within the UN system, and similar ideas have been articulated by the International Labour Organization and in the draft declaration on indigenous rights of the Organization of American States (OAS).
5. I will use the accommodation/integration terminology adopted by McGarry et al., supra note 1, although it is potentially misleading. What they call integrationist models often involve some degree of accommodation of cultural diversity within common institutions. For example, a "duty to accommodate" is part of the immigrant multiculturalism policy in Canada, even though this clearly qualifies as an integrationist policy in their typology. Conversely, what they call accommodationist models can often be seen as a way of ensuring that self-governing groups are, nonetheless, connected to (and in that sense integrated into) a larger state. Provincial autonomy for Quebec accommodates an aspiration for autonomy, but it also integrates a potentially secessionist group into a larger federal political order. The terms "integration" and "accommodation" should be understood with these provisos in mind.
6. U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Sub-Comm. on Promotion & Prot. of Human Rights, Working Paper on the Relationship and Distinction between the Rights of Persons Belonging to Minorities and those of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/2000/10 (July 19, 2000) (prepared by Asbjorn Eide & Erica-Irene Daes) [hereinafter Eide & Daes, Working Paper].
7. Id. at paras. 48-49.
8. Id. at para. 41.
9. STEVEN WHEATLEY, DEMOCRACY, MINORITIES AND INTERNATIONAL LAW 124 (Cambridge Univ. Press 2005).
10. See WILL KYMLICKA, MULTICULTURAL ODYSSEYS: NAVIGATING THE NEW INTERNATIONAL POLITICS OF DIVERSITY (Oxford Univ. Press 2007) (chs. 6-7).
11. See ALISON BRYSK, FROM TRIBAL VILLAGE TO GLOBAL VILLAGE: INDIAN RIGHTS AND INTERNATIONAL RELATIONS IN LATIN AMERICA (Stanford Univ. Press 2000).
12. See CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES, supra note 1.
13. See KYMLICKA, supra note 10 at ch. 2, on the impetus given to the UN's standard-setting activities by these ethnonationalist conflicts.
14. Perry Keller, Rethinking Ethnic and Cultural Rights in Europe, 18 OXFORD J. LEG. STUD. 43 (1998).
15. For a helpful overview of these distinctions as drawn in the Nordic countries, see Lauri Hannikainen, The Status of Minorities, Indigenous Peoples and Immigrant and Refugee Groups in Four Nordic Countries, 65 NORDIC J. INT'L. L. 1 (1996).
16. For details of the Canadian case, see Will Kymlicka, Ethnocultural Diversity in a Liberal State: Making Sense of the Canadian Model(s), in BELONGING? DIVERSITY, RECOGNITION AND SHARED CITIZENSHIP IN CANADA 39-86 (Keith Banting, Thomas Courchene & Leslie Seidle eds., Institute for Research on Public Policy 2007).
17. For the American case, see the (dated) overview in Sharon O'Brien, Cultural Rights in the United States: A Conflict of Values, 5 LAW & INEQUALITY J. 267 (1987).
18. The Flemish form a numerical majority in Belgium, but were historically subordinated to the French-speaking elite, and so are often considered a "minority" according to definitions that emphasize nondominant status rather than numbers per se, and as a case of "minority nationalism," in the sense of contesting the earlier French-dominated state nationalism.
19. Miriam Aukerman, Definitions and Justifications: Minority and Indigenous Rights in a Central/East European Context, 22 HUM. RTS. Q. 1011, 1045 (2000).
20. U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Working Group on Indigenous Populations, Working Paper on the Concept of "Indigenous People," U.N.Doc.E/CN.4/Sub.2/AC.4/1996/2 (July 6, 1996) (prepared by Erica-Irene Daes) [hereinafter Daes, Working Paper 1996].
21. Id. at para. 39.
22. Id. at para. 60.
23. Cf. Amal Jamal, On the Morality of Arab Collective Rights in Israel, ADALAH NEWSLETTER, Apr. 2005, at 12 (arguing that Israel should be included as a European settler state, and, hence, that the Palestinians fit the traditional definition of an indigenous people).
24. E.g., Zambia's report to the UN, which states, "Zambia does not have the classifications of indigenous populations and minority communities as defined by the United Nations Organization. Zambia has ethnic groups that are all indigenous" (UN Doc. CRC/C/11/Add.25, Nov. 19, 2002), para 470. Lennox describes this as "representative of the commonly held view" among African states. See Corinne Lennox, The Changing International Protection Regimes for Minorities and Indigenous Peoples: Experiences from Latin America and Africa (paper presented to Annual Conference of International Studies Association, San Diego, Mar. 2006) (on file with author and with I•CON).
25. As Mamdani notes, however, there is often an important exception to this claim that all ethnic groups are considered indigenous; in many African countries, groups brought to the country during the period of colonial rule often are still considered immigrants or foreigners, such as the indentured laborers from India whom the British moved throughout the British Empire. See MAHMOOD MAMDANI, CITIZEN AND SUBJECT (Princeton Univ. Press 1996) for a discussion of the ways these colonial-era "grant groups are (mis)treated by many postcolonial citizenship regimes in Africa. It remains true, however, that all precolonial groups are often called indigenous, including the dominant group.
26. See, e.g., André Béteille, The Idea of Indigenous People 39 CURRENT ANTHROPOLOGY 187 (1998).
27. According to Daes, attempts to distinguish long-distance colonizing settlement from incorporation into states dominated by neighboring societies rest on an "unjustified distinction." Daes, Working Paper 1996, supra note 18, at para. 63. Similarly, the Working Group on Indigenous Populations/Communities in Africa, established by the African Commission on Human and People's Rights (created by the Organization of African Unity [OAU]), has stated that "[d]omination and colonisation has [sic] not exclusively been practised by white settlers and colonialists. In Africa, dominant groups have also after independence suppressed marginalized groups, and it is this sort of present-day internal suppression within African states that the contemporary African indigenous movement seeks to address...." (African Commission 2005: 92).
28. WORLD BANK, OPERATIONS EVALUATION DEP'T, REP. No. 25332, IMPLEMENTATION OF OPERATIONAL DIRECTIVE 4.20 ON INDIGENOUS PEOPLES: AN INDEPENDENT DESK REVIEW, para 1.4.(2003).
29. Id., Box 3. 1.
30. See, e.g., Manuela Tomei, Indigenous and Tribal Peoples: An Ethnic Audit of Selected Poverty Reduction Strategy Papers (ILO 2005).
31. Pieter Evers, Preliminary Policy and Legal Questions about Recognizing Traditional Land in Indonesia, 3 EKONESIA 1-24 (1995).
32. See Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Controversy, 92 AM. J. INT'L L. 414 (1998).
33. For an overview of these variations, and the calls for greater consistency, See WORLD BANK, LEGAL NOTE ON INDIGENOUS PEOPLES (Apr. 8, 2005)
34. and WORLD BANK; IMPLEMENTATION OF OPERATIONAL DIRECTIVE, supra note 25.
35. See this frank admission of the chairman of the UN Working Group on Minorities: "The usefulness of a clearcut distinction between minorities and indigenous peoples is debatable. The Sub-Commission, including the two authors of this paper, have played a major role in separating the two tracks. The time may have come for the Sub-Commission to review the issue again.... The distinction is probably much less useful for standard setting concerning group accommodation in Asia and Africa." Eide, in Eide & Daes, Working Paper, supra note 6, at para. 25.
36. For the Ahwaz Education and Human Rights Foundation's presentation to the Working Group on Minorities, see http://www.ohchr.org/english/issues/ minorities/group/11session.htm.
37. For the presentation to the Permanent Forum on Indigenous Issues, see http://www.ahwazstudies.org/main/index.php?option=com_Content&task= view&id=2048&Itemid=47&lang=EN.
38. For list of African organizations attending meetings ofthe Working Group on Minorities, see http://www.ohchr.org/english/issues/minorities/ main.htm;
39. for the (overlapping) list of African organizations attending the Working Group on Indigenous Populations, see U.N. Doc. A/HRC/Sub. 1/58/ 22*.
40. For a discussion ofhow groups move from one to the other, see Lennox, supra note 22.
41. For examples and discussion, see Ursula Dorowszewska, Rethinking the State, Minorities and National Security, in CAN LIBERAL PLURALISM BE EXPORTED? 126-134 (Will Kymlicka & Magda Opalski eds., Oxford Univ. Press 2001) (on the Crimean Tatars)
42. Edo Banach, The Roma and the Native Americans: Encapsulated Communities withinLarger Constitutional Regime, 14 FLORIDAJ. INT'L L. 353 (2002)
43. and Ilona Klimova-Alexander, Transnational Romani and Indigenous Non-Territorial Self-Determination Claims, 6 ETHNOPOLITiCS 395 (2007) (on the Roma)
44. Jamal, supra note 21
45. and Hassan Jabareen, Collective Rights and Recognition in the Constitutional Process, 12 ADALAH NEWSLETTER (Apr. 2005) (on the Palestinians)
46. Lennox, supra note 22, (on Afro-Latinos)
47. and Aukerman, supra note 17 (on various Eastern European cases).
48. Russel Lawrence Barsh, Indigenous Peoples in the 1990s: From Object to Subject of International Law?, 7 HARV. HUM. RTS. J. 33, 81 (1994).
49. Aukerman, supra note 17, at 1030.
50. The Draft Declaration finally came up for adoption by the General Assembly in November 2006, and was widely expected to pass, but instead it was deferred, largely due to concerns by African countries about the definition of indigenous peoples. For the African Group's objections, see its Draft Aide Memoire (Nov 9, 2006), available at http://www.iwgia.org/graphics/Synkron-Library/Documents/ InternationalProcesses/DraftDeclaration/ AfricanGroupAideMemoireOnDeclaration.pdf.
51. See KYMLICKA, supra note 10, for more on the role of international organizations in diffusing discourses and models of minority rights.
52. The ethnic Hungarians in Slovakia and Romania have repeatedly complained that their peaceful mobilization for autonomy has received no support from international organizations and indeed has often been discouraged. See Margit Bessenyey-Williams, European Integration and Minority Rights: The Case of Hungary and its Neighbours, in NORMS AND NANNIES: THE IMPACT OF INTERNATIONAL ORGANIZATIONSON THE CENTRAL AND EAST EUROPEAN STATES, 227-258 (Ron Linden ed., Rowman & Littlefield 2002).
53. See U.N. Doc. A/C.3/48/L.17 (Nov. 1993).
54. See also THE SELF-DETERMINATION OF PEOPLES: COMMUNITY, NATION, AND STATE IN AN INTERDEPENDENT WORLD (Wolfgang Danspeckgrubered., Lynne Reinner 2002), where the draft convention is reprinted together with legal commentaries.
55. The precursor to the OSCE.
56. Conference on Sec. & Coop. in Fur. [CSCE], Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, at para. 36, June 29, 1990, 29 I.L.M. 1306-1309 (1990).
57. EUR. PARL. Ass., Recommendation 1201 on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights, 44th Sess., Rec. 1201, art. 11 (Feb. 1993).
58. RICHARD CAPLAN, EUROPE AND THE RECOGNITION OF NEW STATES IN YUGOSLAVIA 30-33 (Cambridge Univ. Press 2005).
59. Org. for Sec. & Coop. in Eur. [OSCE], The Hague Recommnendations Regarding the Education Rights of National Minorities (Jan. 1996), available at http://www.osce.org/documents/hcnm/1996/10/ 2700_en.pdf,
60. OSCE, The Oslo Recommendations Regarding the Linguistic Rights of National Minorities (Feb. 1998), available at http://osce.org/documents/hcnm/1998/02/2699_en.pdf
61. OSCE, The Lund Recommendations on the Effective Participation of National Minorities in Public Life (Sept. 1999), available at http://www.osce.org/documents/hcnm/1999/09/2698_en.pdf.
62. The European Free Alliance, a coalition of minority nationalist parties from various regions of Western Europe (e.g., Catalonia, Scotland, Flanders, South Tyrol), proposed that the EU constitutional treaty contain a clause that recognized "the right of self-government of all those territorial entities in the Union whose citizens have a strong and shared sense of national, linguistic or regional identity." The proposal was never seriously debated. Eur. Conv., Secretariat, Democracy at Many Levels, para. 3, CONV 298/02 (Sept. 24, 2002) (prepared by Neil MacCormick).
63. See Neil MacCormick, The European Constitutional Convention and the Stateless Nations, 18 INT'L AFF. 331 (2004), for the failed efforts to strengthen the recognition of "stateless nations" in the European constitution.
64. The European Commission for Democracy through Law, the Council of Europe's advisory body on constitutional matters.
65. Eur. Comm'n for Democracy Through Law (Venice Comm'n), Opinion of the European Commission for Democracy Through Law on the Interpretation of Article 11 of the Draft Protocol to the European Convention on Human Rights Annexed to Recommendation 1201 of the Parliamentary Assembly, 3§ (Feb. 21, 1996), available at http://www.venice.coe.int/docs/1996/CDL-MIN(1996)004-e.asp.
66. By contrast, many of the paradigmatic examples of national minorities in the West do not have a kin-state (e.g., Catalans and Basques; Scots and Welsh; Québécois; Puerto Ricans).
67. The same applies to other potential kin-state minorities in the West that are linked by ethnicity to a neighboring state. The French in Switzerland or Belgium are not seen as a fifth column for France; neither are the Flemish for the Netherlands nor the Swedes in Finland. This is a testament to the success of the EU and NATO in desecuritizing national minority politics in Western Europe.
68. These are not the only reasons for opposition to territorial autonomy in postcommunist Europe. For a discussion of a range of other such issues, see KYMLICKA, supra note 10, at ch. 6.
69. This is a familiar trope of the extensive literature that distinguishes a "forward-looking" civic nationalism in the West from a "backward looking" ethnic nationalism in the East. See, e.g., MICHAEL IGNATIEFF, BLOOD AND BELONGING (Farrar Straus & Giroux 1993),
70. and the discussion in WILL KYMLICKA, POLITICS IN TIE VERNACULAR (Oxford Univ. Press 2001) (ch. 12).
71. For example, members of the Sinhalese majority in Sri Lanka often expresses this sense of historic injustice. It is widely believed that the minority Tamils collaborated with, and were unfairly privileged by, the British colonizers, and remain willing to collaborate with neighbouring India against the Sri Lankan state in order to defend those privileges. See SANKARAN KRISHNA, POSTCOLONIAL INSECURITIES: INDIA, SRI LANKA AND THE QUESTION OF NATIONHOOD (Univ. Minn. Press 1999).
72. This is precisely what Bulgaria, for example, tried to do in the 198 Os, by forcing all the Turks to adopt ethnic Bulgarian names. The communist Bulgarian government argued that the coerced assimilation of the Turks was simply reversing the unjust pressure that the Ottomans had put on Slavs to convert to Islam and to assimilate to Turkish culture.
73. In all of these cases, it is important to distinguish objective facts about security threats and historic wrongs from the way these facts are perceived and discussed. Political actors make choices about whether or when to highlight (or exaggerate) these factors in public debate. The perception of kin-state minorities as a security threat and as collaborators in historic injustices against the majority is something that is deliberately inculcated and reproduced by certain political elites for reasons of self-interest.
74. MAX VAN DER STOEL, PEACE AND STABILITY THROUGH HUMAN AND MINORITY RIGHTS: SPEECHES BY THE OSCE HIGH COMMISSIONER ON NATIONAL MINORITIES 111 (Nomos Verlagsgesellschaft 1999).
75. Id.
76. For example, several NGOs have proposed a "Charter of Romani Rights," to develop targeted rights for the Roma in Europe; and the Parliamentary Assembly of the Council of Europe called for a specific legal instrument regarding the rights of immigrant citizens (Recommendation 1492). For these and other proposals for new targeted rights, see KYMLICKA, supra note 10, at ch. 6 and 8.
77. For example, longstanding calls to turn the 1992 UN Declaration on minority rights into a binding convention have essentially disappeared from the debate. Even Minority Rights Group, the main international advocacy group in the field, has stopped pushing this idea. See MRG, Possible New United Nations Mechanisms for the Protection and Promotion of the Rights of Minorities, Working Paper submitted to UN Working Group on Minorities, 9th Session, E/CN.4/sub.2/AC.5/2002/WP3. Other proposals to strengthen the codification and monitoring of international norms have also fallen by the wayside. See KYMLICKA, supra note 10, at ch. 6.