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‘Ethnicity’ in the International Law of Minority Protection: The Post-Cold War Context in Perspective*
Published online by Cambridge University Press: 01 November 2012
Abstract
As a concept, ‘ethnicity’ has been informing the notions of the ‘self’ as well as the ‘other’ since antiquity. While in ancient Greek it referred to the ‘other’ in a derogatory sense, in the Romantic literature of the nineteenth century, ethnicity came to depict the self-image of the nation. Although, in contrast, the liberal self-image refers to ethnicity only in the instrumental sense (as a tool for regulation without attributing any real value to the notion), ethnicity remains salient in both the liberal and conservative versions of nationalism to identify the backward ‘other’ – the minority – within the nation. Against the backdrop of the nineteenth-century discourse on ethnicity, this paper explores how the notion of ethnicity having the image of ‘otherness’ as well as ‘backwardness’ shapes the liberal perception of ‘minority’ and ‘minority protection’ in the post-Cold War context in three different ways. First, I argue that ethnicity informs the perception of the minority as the ethnic ‘other’. Second, the individualist response to minority protection paradoxically endeavours to remove ‘ethnicity’ from the concept of ‘minority’. And finally, in the post-Cold War European scenario, it is again the ethnic ‘otherness’ that rationalizes a differentiated minority protection mechanism for the West and the East within Europe.
- Type
- INTERNATIONAL LEGAL THEORY
- Information
- Copyright
- Copyright © Foundation of the Leiden Journal of International Law 2012
Footnotes
*
An earlier version of this article was presented in the 4th Biennial Conference of the European Society of International Law in 2010.
References
1 E. Tonkin, M. McDonald, and M. Chapman, History and Ethnicity (1989), at 11.
2 N. Glazer and D. P. Moynihan (eds.), ‘Ethnicity’ (1975), at 1. Apparently, their claim relied on a number of facts that they referred to: the term ‘ethnicity’ understood as the character or quality of an ethnic group did not appear in the 1933 edition of the Oxford English Dictionary; it was only in the 1972 Supplement to this dictionary that this word appeared, where the first usage recorded was that of David Reisman in 1953. Although Webster's Third New International Dictionary (1961) included the term, neither the Random House Dictionary of the English Language (1966) nor the American Heritage Dictionary of the English Language (1969) included it. However, four years later in the 1973 edition of the American Heritage Dictionary, the term ‘ethnicity’ was included.
3 R. H. Thompson, Theories of Ethnicity: A Critical Appraisal (1989), at 1.
4 For details, see, ibid, at 1–2.
5 Ibid., at 3.
6 For the etymology of ‘ethnicity’, I largely depended on Tonkin, McDonald, and Chapman, supra note 1, at 12–20.
7 Ibid.
8 Ibid.
9 Ibid., at 13.
10 Ibid.
11 A. Nussbaum, A Concise History of the Law of Nations (1947), at 19.
12 Ibid.
13 Tonkin, McDonald, and Chapman, supra note 1, at 14.
14 Ibid.
15 Connor, Walker, ‘A Nation Is a Nation, Is a State, Is an Ethnic Group, Is a . . .’, in Hutchinson, J. and Smith, A. D. (eds.), Nationalism (1994) 36Google Scholar, at 38.
16 E. Gellner, Nationalism (1997), at 64–8. Cf. E. Hobsbawm, Nations and Nationalism since 1780 (1992); B. Anderson, Imagined Communities (2006).
17 A. Kuper, Culture (1999), at 6–9.
18 von Herder, Johann Gottfried, ‘Reflections on the Philosophy of the History of Mankind’, in Dahbour, O. and Ishay, M. R. (eds.), The Nationalism Reader (1995), 48 at 48–57Google Scholar.
19 von Herder, Johann Gottfried, ‘Ideas towards a Philosophy of the History of Mankind (1785)’, in Zimmern, A. (ed.), Modern Political Doctrines (1939), 164 at 165Google Scholar.
20 Ibid.
21 See Fichte, Johanne Gottlieb, ‘An Outline of International and Cosmopolitan Law (1796–97)’, in Reiss, H. S. and Brown, P. (eds.), The Political Thought of the German Romantics (1955), 73 at 73–84Google Scholar.
22 Johanne Gottlieb Fichte, ‘Addresses to the German Nation – Thirteenth Address (1808)’, in Reiss and Brown supra note 21, 102 at 102–3.
23 Ibid.
24 Ibid., 108.
25 Leopold von Ranke, ‘The Great Powers (1833)’, in Dahbour and Ishay, supra note 18, 156 at 158.
26 Ibid., 159.
27 Ibid.
28 The German historical-school jurists, especially Savigny, had significant influence on the German international law of the nineteenth century as advanced by Bluntschli and others.
29 Oxford Advanced Learner's Dictionary (2000). Cf. Chambers 21st Century Dictionary (1999).
30 Tonkin, McDonald, and Chapman, supra note 1, at 12.
31 E. W. Said, Orientalism (1995 [1978]), at 103.
32 Ibid., at 332.
33 ‘Animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camelhair brush, (l) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies.’ See M. Foucault, The Order of Things: An Archaeology of the Human Sciences (1989 [1966]), at xvi.
34 Ibid.
35 In The Order of Things: Archaeology of Knowledge, while talking about ‘justice’, he states that the legal system itself makes it impossible, by setting up a social power structure where a supposedly neutral judge pronounces supposedly neutral judgments in a setting of organized superiority and subservience. He argues that revolutionary groups cannot establish a more acceptable justice unless they move away from the justice system itself, otherwise they reinstitute the unjust bourgeois concept of justice. See M. Foucault, The Order of Things: Archaeology of Knowledge, trans. A. M. Sheridan Smith (2002 [1969]), at 62–70.
36 Kant, I., ‘The Metaphysics of Morals (1797)’, in Reiss, H. S. (ed.), Kant's Political Writings, trans. Nisbet, H. B. (1970), 131 at 140Google Scholar. However, women and slaves remained outside the scope of these civil rights, in that universal suffrage was denied to them.
37 Ibid., at 165.
38 Ibid., at 165, 171.
39 Ibid., at 172.
40 Ibid.
41 Ibid.
42 Ibid., at 171.
43 Hegel, G. W. F., Lectures on the Philosophy of World History (1837), ed. Forbes, D. and Nisbet, H. B. (1975), at 76–7, 80Google Scholar. See also T. C. Luther, Hegel's Critique of Modernity: Reconciling Individual Freedom and the Community (2009).
44 Hegel, supra note 43, at 81–3.
45 Ibid., at 83, 147–51.
46 Ibid., at 97.
47 Ibid.
48 J. Wild, Introduction to E. Levinas, Totality and Infinity: An Essay on Exteriority, trans. A. Lingis (1979 [1961]), at 15.
49 Ibid., at 16. See generally, ibid., at 33–108.
50 Mill, John Stuart, ‘Considerations on Representative Government (1861)’, in Three Essays (1975) 380, at 380–8Google Scholar.
51 Ibid.
52 J. Emerich E. Dalberg-Acton, The History of Freedom and Other Essays, ed. J. N. Figgis and R. V. Laurence (1907), at 290.
53 Ibid., at 289–90.
54 Ibid., at 290.
55 Ibid.
56 Ibid., at 293.
57 Ibid., at 292–3.
58 Ibid., at 289–90.
59 Monogenists conceived human races as emanating from a common origin; despite possessing different ranks in the civilizational process, they would ultimately survive as the superior whole through the evolutionary continuum. Polygenists perceived human races as fundamentally distinct species, whose hierarchical positions are fixed in the evolutionary process in that the superior must be preserved from any intermixing with the inferior.
60 For an account of social Darwinism, see M. Hawkins, Social Darwinism in European and American Thought, 1860–1945 (1997), at 61–122; P. Dickens, Social Darwinism (2000), at 7–25. Referring to Herbert Spencer as the pioneer of social Darwinism, Greene argues that the historical context of Darwin's work in particular and the interaction between science and society in general tend to emphasize the links between Darwin and Spencer consisting of a network of shared assumptions and viewpoints about God, Nature, society, and history, which rendered Spencer a ‘Darwinian before Darwin’. See J. C. Greene, Science, Ideology and World View (1981), at 134, 140. For a Spencerian account of social evolution, see generally J. D. Y. Peel (ed.), Herbert Spencer on Social Evolution: Selected Writings (1972).
61 Dickens, supra note 60, at 31–44.
62 Ibid., at 32.
63 Ibid., at 35–41.
64 Kuper, supra note 17, at 10.
65 Ibid.
66 UN Doc. E/CN.4/358. See also K. Henrard, Devising an Adequate System of Minority Protection (2000), at 20.
67 UN Doc. E/2573 (1954), at 48–9.
68 For a detail discussion on the definition of ‘minority’, see F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious or Linguistic Minorities (1977), UN Doc. E/CN.4/Sub. 2/384/Rev.1, at 5–15.
69 UN Doc. E/CN.4/1987/WG.5/WP.1. See also N. Lerner, Group Rights and Discrimination in International Law (2003), at 9.
70 See Capotorti, supra note 68, at 7.
71 See Lerner, supra note 69, at 22.
72 CDHH (1993) 22, Strasbourg, 8 September 1993, feddh 93.22, at 7–9. See Henrard, supra note 66, at 27.
73 Council of Europe Parliamentary Assembly Recommendation 1201 of 1 February 1993, 10 OJ 1995.
74 Henrard, supra note 66, at 30.
75 Conference for Security and Co-operation in Europe, CSCE Helsinki Document 1992: Challenges of Change (9–10 July 1993), www.osce.org/documents/html/pdftohtml/4048_en.pdf.html, part 3.
76 Schermerhorn, R., ‘Ethnicity and Minority Groups’, in Hutchinson, J. and Smith, A. D. (eds.), Ethnicity (1996), 17 at 17Google Scholar.
77 The representative of France remarked that international intervention to prevent abuse of minorities might sometimes be necessary to maintain the peace. In a later discussion, the representative of Belgium said of the Economic and Social Council that ‘minority questions fall properly within its province, but under another name and, though on a wider territorial basis, without the special guarantees which in this connection would result from the system of the League of Nations’. See P. Thornberry, International Law and the Rights of Minorities (1991), at 118. For a chronological account of minority protection in international law, see also Preece, J. J., ‘Minority Rights in Europe: From Westphalia to Helsinki’ (1997), 23 Review of International Studies 75, at 75–92CrossRefGoogle Scholar. Different historical approaches to minorities are briefly discussed in Preece, J., ‘National Minorities and International System’, 18 Politics (1998), 17 at 17–23CrossRefGoogle Scholar.
78 Arts. 1(3), 13, 55, and 76 of the Charter.
79 Thornberry is of the opinion that ‘the Charter does have a view on minorities to be read by necessary implication, that the issue is now part of human rights’. See Thornberry, supra note 77, at 119.
80 Kunz, J. L., ‘The Present Status of the International Law for the Protection of Minorities’, (1954) 48 AJIL 282, at 285–6CrossRefGoogle Scholar.
81 UN Doc. A/C.3/SR.161, at 726.
82 See Art. 1 of the Optional Protocol to ICCPR, 1966. Thus, in the cases of Lansman et al. v. Finland I and II as well as O. Sara et al. v. Finland, although the group rights of the Sami indigenous communities of Finland were threatened by mining, logging, road construction, and related activities, the complainants brought the issue under Art. 27 and not under Art. 1 of the same covenant that guarantees peoples’ right to self-determination. See also the Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada case (26 March 1990, HRC No. 167/1984, CCPR/C/38/D/167/1984). Cf. Kitok v. Sweden case (10 August 1988, HRC No. 197/1985, CCPR/C/33/D/197/1985) and Lovelace v. Canada case (30 July 1981, HRC No. 24/1977, A/36/40).
83 Such as the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the UNESCO Convention on the Elimination of Discrimination in Education, the UNESCO Declaration on Race and Racial Prejudice (1978), and the UN Declaration against Intolerance and Discrimination Based on Religion and Belief (1981).
84 See generally Packer, J., ‘Problems in Defining minorities’, in Fottrell, D. and Bowring, B. (eds.), Minority and Group Rights in the New Millennium (1999), 223 at 223–73Google Scholar; B. Barry, Culture and Equality (2001) and C. Kukathas, The Liberal Archipelago (2003).
85 See Anghie, A., ‘Human Rights and Cultural Identity: New Hope for Ethnic Peace’, (1992) 33 Harv. ILJ 341, at 345Google Scholar.
86 See generally ibid.
87 UN Doc. A/RES/47/135 (1992).
88 Art. 1 of the Declaration.
89 Art. 4 of the Declaration.
90 A. Eide, Final Text of the Commentary to the Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities (2001), UN Doc. E/CN4/Sub2/AC5/2001/2, at para. 56.
91 Ibid., at para. 15.
92 Henrard, supra note 66, at 192.
93 Ibid., at 193.
94 See generally F. Fukuyama, ‘The End of History’, (1989) 16 National Interest 3, at 3–18.
95 Paras. 31 and 33 of the Document. See also, Henrard, supra note 66, at 206–7.
96 See, Preece, ‘National Minorities and International System’, (1998) 18 Politics 17, at 21.
97 Art. 11 of the Recommendation.
98 Kymlicka, W., ‘Reply and Conclusion’, in Kymlicka, W. and Opalski, M. (eds.), Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Eastern Europe (2001) 345, at 374Google Scholar. Cf. Kymlicka, W., ‘Multiculturalism and Minority Rights: West and East’, (2002) 4 Journal on Ethnopolitics and Minority Issues in Europe 1, at 1–25Google Scholar.
99 For the details of this analytical framework, see Kymlicka, ‘Reply and Conclusion’, supra note 98, at 369–87.
100 Council of Europe, Explanatory Report to the Framework Convention for the Protection of National Minorities, ETS No. 157 (1995), at para. 11.
101 Kymlicka, ‘Reply and Conclusion’, supra note 98, at 373.
102 Explanatory Report, supra note 100, at para. 13.
103 Ibid., at para. 31.
104 Ratner, S., ‘Does International Law Matter in Preventing Ethnic Conflict?’, (2000) 32 International Law and Politics 591, at 620Google Scholar.
105 Kymlicka, ‘Reply and Conclusion’, supra note 98, at 374.
106 Ibid., at 375.
107 See ibid., at 378.
108 Greco-Bulgarian Communities Case, 1930 PCIJ Series B, No. 17, at 33.
109 M. Todorova, Imaging the Balkans (1997), at 188. Emphasis added. See also Said, supra note 31.
110 Bakic-Hayden, M., ‘Nesting Orientalisms: The Case of Former Yugoslavia’, (1995) 54 Slavic Review 917, at 917–31CrossRefGoogle Scholar.
111 S. Bose, Bosnia after Dayton: Nationalist Partition and International Intervention (2002), at 12.
112 The Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (December 16, 1991), (1993) 3 EJIL 72, at 72.
113 Declaration on Yugoslavia (Extraordinary EPC Ministerial Meeting), Brussels, 16 December 1991, (1993) 3 EJIL 73, at 73. Rich argues that EC Guidelines have ‘moved away from the process of recognition as the formal acceptance of a fact to a process based on value judgments and through which the international community tries to create a fact’. Although these guidelines are stated to be subject to the normal standards of international practice, he notes, their application has ‘thrown doubt on the relevance of the traditional criteria for statehood’. See Rich, R., ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, 4 EJIL (1993) 36CrossRefGoogle Scholar, at 56. Cf. Turk, D., ‘Recognition of States: A Comment’, (1993) 4 EJIL 66, at 66–71CrossRefGoogle Scholar.
114 Conference on Yugoslavia, Arbitration Commission Opinion No. 7 (1992), (1993) 4 EJIL 80, at 80–4.
115 Arbitration Commission Opinion No. 6 (1992), (1993) 4 EJIL 77, at 77–80.
116 Arbitration Commission Opinion No. 5 (1992), (1993) 4 EJIL 76, at 76–7.
117 Arbitration Commission Opinion No. 4 (1992), (1993) 4 EJIL 74, at 74–6.
118 Arbitration Commission Opinion No. 10 (1992), (1993) 4 EJIL 90, at 90–1.