|The Courier N° 140 - July - Aug 1993 - Dossier: National Minorities - Country Reports: Dominica, Mozambique (EC Courier, 1993, 96 p.)|
|Dossier: National minorities|
by Patrice Meyer-Bisch
The countries of central and eastern Europe are trying to bring their peoples together, both within their borders and beyond, strengthening the ties with the motherland, as the Hungarian minority rights bill puts it. What is this unity to be? Bringing peoples together, in all their differences, means managing and sometimes forging relations between majority and minority and, clearly, such relations breed conflict. Not only do they exacerbate every difference. They also put dangerous emphasis on the matter of territorial boundaries. Minority rights are a legitimate and urgent demand for all those men and women whose dignity has been trampled under foot, but they cause wars too. So what is the answer?
If the international community currently has nothing to suggest, it is because its members, the states, are unable themselves to solve the problem of the multinational, multicultural state. The cause of all Yugoslavia's troubles is powerlessness -powerlessness in humanitarian and political matters and most of all, perhaps, powerlessness in theoretical matters. We have no model. Federalism is one way, but it is not the only one and it is not sufficient either, because it reproduces the problem of the nation-state, with the minority issue still intact, on a smaller scale. New institutional solutions are what is needed.
Difficult to apply
No-one is taken in when a state announces that it does not recognise minorities because it assimilates them or that it recognises specific rights for official minorities. When the Macedonian demonstration was going on in Athens in December, for example, more than 100 experts were busy at a conference on the rights of minorities and peoples. The fire is at its gates and Greece has every interest in saying just what its minorities' rights are. But in what sense? Is the idea really to have all men equal? and if it is, why does the State currently make Greeks state their religion on their identity cards? Austria and Hungary are agitating for recognition of minority rights in the Council of Europe, but the reference unit is still the nation-state, or the motherland, even. The rights of ethnic groups, Volksgruppen, clearly bear the stamp of potential discrimination. Does bringing freedom mean drawing the ethnic boundaries first?
Ensuring that the rights of members of minority groups are respected means identifying those minorities through various cultural features-which usually have blurred edges. It means defining the ratio of minority to majority in a given area, for what is a minority group at national level may well be a majority one at regional level. And lastly, it means cataloguing people and ensuring them rights as members of an ethnic group.
This is all perfectly legitimate, politically speaking, when it comes to organising support for the underprivileged and designing a contingency plan of compensatory schemes deemed most likely to bring back equality. But it must not be conditional on rights which, by being human rights, are universal and unconditional.
Who is to say that a particular person or a particular family belongs to a particular group, when all the characteristics of languages, religion, housing and profession fluctuate in a thriving cultural osmosis? Recognition of minority rights is potentially discriminating in that it forces people to identify with a particular cultural community, which, given the profoundly varied and changing nature of cultural kinship, could be harmful. Choosing between one set of people and another amounts to self mutilation. Although there are bills to proclaim that the individual has the right to switch ethnic groups, switching involves a whole process of changing status, instead of immediate and universal recognition of official freedoms, and it does nothing to alter the basic fact-that cultural identity is many-faceted. It is clear that many states want this mutilation, but the authors of the projected international instruments for the victims (people and communities) of what can be lethal discrimination do not. But how can manipulation be avoided when the recognition of minorities actually invites it?
The universalist approach through cultural rights
We would be in stalemate were it not for another, strangely neglected solution which fits in far better with the human rights tradition. The logical thing would be to define the immediate universal before looking at the guarantees of particular and contingent situations. The legal intruments currently available 2 clearly contain three separate categories of rights-universal rights and guarantees which are merely stated (equality, freedom of association, movement and religion and legal guarantees), universal cultural rights (to cultural identity, one's own communication and information and the use of one's own language) and, lastly, just one specific collective right (of a minority to its existence), with the right to special measures to guarantee the universal rights-special administrative arrangements (the right to own-language teaching at school, for example, for minorities of a certain size) and the possibility of special political representation for minorities. The mention of universal rights should perhaps be seen as a preamble. The definition of the second category, cultural rights, reveals a worrying void, which hampers the legal and political development of the law applying to people who belong to minorities and to all the forgotten majorities.
The fact that the human rights movement stumbled over the definitions of economic and social rights has pushed the whole issue of cultural rights (classified at the end of the second category) right into the background-yet it is the (dramatically) missing key as far as the present claims are concerned. Cultural rights, as a specific category of human rights, are under-developed 3 and, although the spotlight is on them now, it is only in the restricted framework of minority rights. The vagueness which surrounds the right to culture has suggested that the series of needs to which this has been reduced has been more or less met as far as the majorities are concerned, in proportion to their level of development. This is a long way from human rights.
Cultural rights have been caught in the minority rights trap, in that the call for the right to cultural identity is immediately taken to be a particularist move, when in fact it is indivisibly twofold. Identity is both the right to be different and the right to resemble, the right to be particular combined with the right to be universal. So there are two (dialectical rather than contradictory) sides to every cultural right. We have the knowledge to provide adequate positive definitions of these human rights today.
The advantage of a universalist approach is that it avoids the legal chiaroscuro surrounding the definition of the subject of the right (belonging to a community). It makes for an immediate definition of rights applicable to people everywhere, regardless of their condition and this reduces the bellicose tensions attendant on all territorialisation issues.
That is not all. The universalist approach is more in line with the revolutionary tradition of human rights, in that it contests the claim that the state has the legitimacy of the nation. The idea is a clear dissociation of the rule of law and the nation-state, which is often a usurper of the identity of the people. The duty of a state in which the rule of law prevails is to serve the identities which make up the many-faceted national unity. Its mission is to ensure that everyone has access to culture through education and untrammelled involvement in cultural life, but this can no longer be a pretext for an official definition of culture. We can no longer entertain the idea of the state either monopolising culture or neglecting the cultural development which is a measure of the effectiveness of any democracy.
If all human rights are definitions of freedom and the terms on which it can be exercised, it is time we explicity recognised the cultural dimensions of this freedom - i.e. freedom of language, communication, movement, education and information, including the right to protection from disinformation.
This universal basis, which is more solid and more in keeping with the multicultural reality of the vast majority of nations, could be the foundation for a more precise and efficient minority right - i.e. a category right, or specific guarantees to restore equality to categories of individuals under threat. The universalist approach is a vital counterweight here and the logical forerunner of instruments defining minority rights, but there can be no question of voiding those rights of all their substance. The fact that, say, the French state can see this approach as justification for its minority integration policy by no means entitles it to be less assiduous about recognising these rights once the universalist guarantee has been accepted.
However, the definition of specific administrative guarantees - the possibility of using one's own language for administrative and legal purposes, for example, or of teaching or being taught one's language and its cultural values- raises the problem of the practical recognition of new collective rights, particularly when it comes to politics. Rights of this sort can only really be claimed and guaranteed if there is a political relay in the legislative body, because, one way or another, there has to be a guarantee of cultural diversity being represented in parliament.
So minority rights may appear to have the special twofold character of mixed category rights. They are human rights in that they lay down the conditions under which human rights are guaranteed to people in endangered cultural communities and they belong with the rights of peoples in that they define the collective political form taken by such guarantees.
There is no question either of the vast -and vague-rights of peoples falling into the minority rights trap, although, properly controlled by human rights, they have the advantage of making for progress with the political definition of the people in the state in which the rule of law prevails, in particular through the consideration of cultural identities.