'Ethnicity' in the international law of minority protection
Dr. Mohammad Shahabuddin
(…from previous issue)
'Minority protection' through individualism: Eliminating 'ethnicity' from 'minority'
The issue of minority protection that remained at the forefront of the League of Nations system was carefully avoided during the San Francisco Conference. Although the Sub-commission on Prevention of Discrimination and the Protection of Minorities was created as a compensatory measure, its work towards protection of minorities made little progress due to constant prioritization of the prevention of discrimination. In the Universal Declaration of Human Rights too, the principle of non-discrimination prevailed without any reference to minorities. The dominant argument remained that the individual human rights would, in themselves, provide the necessary protection of minorities through the principle of non-discrimination. The US Representative Eleanor Roosevelt explicitly declared that there should be no minority provision in the Declaration, and asserted that 'the best solution of the problem of minorities was to encourage respect for human rights.'
Similarly, Article 27 of the ICCPR addressed the minority issue within the individualist framework of the Covenant. The individualism in this Article is substantiated when read with article 5(1) of the Covenant that stipulates that nothing in the Covenant will be interpreted in a way that would jeopardize the individual rights and freedoms guaranteed in other provisions of the Covenant. It is also reinforced in the Optional Protocol to the ICCPR that recognizes the competence of the Human Rights Committee to receive and consider communications from individual victims alone. The issue of 'protection' of minorities appeared in a number of other international human rights instruments, and necessarily, non-discrimination was the guiding principle to approach the issue.
Such a regime, from the perspectives of ethnic minorities, readily permits the subordination of minorities to the majority culture under the veil of principles of non-discrimination, equality and so on. Within a liberal individualist framework, it is not even considered necessary to protect any culture per se. Thus, the international machinery invested energy to take out 'ethnicity' from 'minority' and reduce the latter to individuals who would share a common national (also liberal universal) culture.
However, the pragmatic necessity of minority protection remained alive. The pressing need for restoring 'ethnicity' in 'minority' emerged at the end of the Cold War with the eruption of deadly ethnic violence. The peculiarity of the post-Cold War moment of international law in relation to ethnicity remains in the fact that on the one hand, the collapse of the Soviet Empire is celebrated as the landslide of liberalism, the End of History and also liberal-democratic 'progress' and peace, on the other hand, eruption of violent ethnic conflicts even in Europe brought the issue of Ethnicity a primitive notion in liberal understanding to the forefront. The then literature on minorities often perceive the resurgence of the minority rights discourse as a product of ethnic violence. Some even link the absence of minority group rights in international law directly to the eruption of conflicts. Though demonizing international law in this fashion does not always offer a plausible explanation for ethnic conflicts, in the aftermath of the Cold War, the protection of minorities drew attention as a viable response to ethnic tension.
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) is the iconic document in this context. Although designed to address the rights of individuals and equipped with a weaker binding force, the Declaration formulates the duties of States as duties towards minorities as groups. Unlike Article 27, the Declaration makes it clear that these rights often require action, including protective measures and encouragement of conditions for the promotion of their identity, and specifies active measures by the State. In his oft-cited Commentary on article 4 of the Declaration, Eide holds the view that these measures may require economic resources from the State for the development of minority cultures. Such an attitude certainly underscores the ethnic group phenomenon of minorities and their protection.
However, it was not an easy task to break with the long standing liberal-individualist approach to minority protection; consistent balance had to be made. Thus, the Declaration advocates rights for individuals in line with Article 27. Eide confirms this in his commentary: 'The rights of persons belonging to minorities are individual rights, even if they in most cases can only be enjoyed in community with others.' Therefore, the right to self-determination, which is a collective right of peoples, is outside the purview of the Declaration; the issue of autonomy shares the same fate. Furthermore, the Declaration, having little or no concrete content in relation to the enjoyment of cultural and religious rights, has been turned into some mere open 'guidelines' for States interested in minority protection.
Thus, the overall individualist tone of the existing regime of rights remained a debacle to the effective accommodation of minorities. What appears as a result is the rhetoric of the protection of minority groups without actually creating any legal norm to this effect that would engender general obligation for all member-States. 'Ethnicity' is, thus, assigned with an ambivalent role in the UN mechanism of minority protection; it is there at the core of the very understanding of the 'minority' but simultaneously avoided in their protection.
This narrative of the international protection of minorities demonstrates how 'ethnicity' plays a dominant role in the contemporary liberal understanding of minority protection within an environment of uneasiness and ambivalence. While the efforts to eliminate 'ethnicity' from 'minority' marked the dawn of a new universal regime of human rights in the aftermath of the WWII, existence of 'minorities' as an ethnic phenomenon and ensuing pragmatic needs in the face of the post-Cold War ethnic violence gradually brought 'ethnicity' to the surface of the current discourse on minority protection. Thus, instead of being the era of mere enforcement of the norms of international human rights law that allegedly developed during the Cold War, the current era of international law appears as the moment of reconciliation between 'progressive' human rights and ethnic 'primitiveness'.
The author is the Chairman of the Department of Law & Justice at Jahangirnagar University.