The Ambiguous Appeal of Minority Rights
THE AMBIGUOUS APPEAL OF MINORITY RIGHTS
The legal instruments that invested these political developments with international legal validity dramatically reshaped the structure of the international legal order. The 1923 Treaty of Lausanne, for example, delineated the territorial sovereignty of the new Republic of Turkey, replacing the 1920 Treaty of Sèvres, which had been negotiated but never ratified by the Ottoman Parliament. In doing so, the Treaty of Lausanne restored Turkey’s previous boundary with Bulgaria and Western Thrace, annulled the transfer of Smyrna to Greece, and relieved Turkey of post-war obligations to compensate Allied civilian nationals for wartime losses. It also provided for an extensive population exchange between Turkey and Greece and repudiated Turkey’s previous commitment to recognize an independent Armenia and ultimately an independent Kurdistan.1
This chapter explores the nature and purpose of minority rights in international law.2 Why should international human rights law vest members of a minority community—either individually or collectively—with rights that secure a measure of autonomy from the State in which they are located? To the extent that international law offers normative answers to this question, it does so through the prism of a commitment to the protection of certain universal attributes of human identity from the exercise of sovereign power. It protects minority rights on the assumption that religious, cultural, and linguistic affiliations are essential features of what it means to be a human being. But its acceptance of this assumption is wary and partial. Minority rights might protect key features of human identity, but they possess the capacity to divide people into different communities, create insiders and outsiders, pit ethnicity against ethnicity, and threaten the universal aspirations that inform dominant moral conceptions of the mission of the field.
This chapter offers an alternative explanation of why minority rights possess international legal significance, one that trades less on the currency of religion, culture, and language and more on the relationship between international law and distributive justice. On this conception, international minority rights speak to adverse consequences that international law itself produces by distributing sovereignty to collectivities that it recognizes as States. This account reveals itself most clearly in the way international political developments surrounding the dissolution of the Ottoman Empire at the end of the First World War were vested with international legal validity. But it also serves as the basis of a more general theory of the normative significance of international minority rights regardless of contingent political conditions that lead to their formal legal entrenchment. This account avoids the normative instabilities of attaching universal value to religious, cultural, and linguistic affiliation and instead challenges the international legal order to remedy pathologies of its own making.
THE MORAL AMBIGUITIES OF MINORITY RIGHTS
Two seemingly contradictory commitments structure our international legal order. The first is to the sovereignty of States. States possess international legal authority to rule their territory and populations, rendering them sovereign legal actors in the global political arena. The second is to human rights. Individuals and collectivities not necessarily coextensive with the populations of States possess human rights in international law, which place limits on the exercise of sovereign power. These commitments appear contradictory to the extent that either is imagined in absolute terms. If sovereign power is absolute, then human rights cannot constrain it. If human rights are absolute, then sovereign power cannot interfere with their exercise. International law, of course, treats neither in absolute terms. It restrains sovereign power in the name of human rights, and it allows sovereign States to restrict human rights in certain circumstances. Sovereignty and human rights in international law are in a “recursive relationship.”3 How and why international law restrains sovereignty, and how and why it authorizes States to restrict human rights, are questions that fuel the international legal enterprise as it seeks to bring legal order to the global politics that is its genesis.
One way of focusing these questions is to begin with the kinds of human rights to which our international legal order pays homage. What interests underlie international human rights, and why do these interests merit protection in the face of sovereign power? The standard moral conception of international human rights is that they protect interests that are universal in nature. Human rights protect essential characteristics or features that all of us share despite the innumerable historical, geographical, cultural, communal, and other contingencies that shape our lives and our relations with others in unique ways. They give rise to duties that we owe each other in ethical recognition of what it means to be human.
This account runs aground, however, when it is deployed to explain the international legal presence of some rights that protect interests that have less to do with essential features of our common humanity and more to do with the contingencies of geography, history, and culture. Belonging to a minority is not something we all share; it is a function of history and circumstance. International minority rights protect interests associated with belonging to one’s culture, and the culture to which one belongs is, of course, contingent on where, when, and to whom one is born. Moreover, cultures develop and change over time. Some cultures are traditional. Others are modern. Some seek to exemplify the moral universe that the standard account of international human rights valorizes. Others are downright toxic in this respect.
The claim that a minority population possesses rights that shield it from assimilative tendencies of a majority population thus fits uncomfortably with a conception of international human rights law as a field devoted to the protection of essential features of what it means to be a human being. Being a member of a minority may well mean that one’s civil and political freedom is more likely to be interfered with than the freedom of a member of a majority, and therefore the field is attentive to the various forms of discrimination and marginalization that minorities unjustly experience because of their minority status. Thus understood, minority rights, as James Nickel delicately put it, “spell out the implications of universal rights for people who face distinctive problems.”4 Beyond this level of protection, however, minority rights seem to run counter to the aspiration of international human rights law to protect universal, not contingent, features of human identity.
This is not to say that minority rights cannot be comprehended in terms that are consistent with universal accounts of human rights. Much of contemporary political theory on multiculturalism devotes itself to this theoretical challenge. Some argue that cultural protection is warranted because cultural affiliation is central to human identity.5 Others say that all of us benefit from cultural diversity, and for this reason, too, cultural protection is warranted.6 Still others are skeptical of attributing universal value to the fact of cultural difference.7 But rarely does what international law actually say about cultural protection seem to matter in these debates. They turn more on complex moral disagreements about the universal significance of cultural identity. They tend to treat law as a relatively crude reflection of deeply contested moral claims and not as an active participant in the production of cultural identity itself.
The protection that international human rights law accords to minority populations reflects this tenuous relationship between minority membership and universal value.8 International human rights law comprises a variety of sources and instruments, including the United Nations Universal Declaration of Human Rights, various international and regional treaties, principles of customary international law, and general principles of international law. These sources and instruments provide minorities with several avenues for challenging the exercise of sovereign power, but these avenues have come to be understood in terms that display deep ambivalence about the international legal significance of minority status.
This ambivalence reveals itself in several ways. First, minority interests deemed to merit legal protection typically are those that can be said to constitute universal features of human identity, such as freedom of expression and association and, more contentiously, cultural, religious, and linguistic affiliation. Second, minority rights that protect such interests tend to vest in individuals who claim such affiliations as opposed to the communities to which they belong. Third, conditioned by universal and individualistic premises, minority rights nonetheless protect some activities that possess non-universal and collective dimensions. Fourth, civil and political rights that fit more comfortably with a universal account of the field occasionally protect interests characteristically associated with minority status. Finally, the field offers little concrete guidance on what international minority rights require States to do in order to secure their protection.
The Universal Declaration of Human Rights, for example, makes no explicit mention of minority rights. A preliminary draft of the Declaration proposed enshrining rights to minority educational, religious, and cultural institutions as well as minority linguistic protection but, due to political opposition from many States, these provisions were omitted from the final version adopted by the U.N. General Assembly in 1948.9 Instead, the General Assembly transferred the matter of minority protection to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, instructing it to undertake “a thorough study of the problem of minorities.”10 In the words of Peter Hilpold, the General Assembly’s “reluctance to act coupled with a request for more knowledge was a characterizing trait of the entire development of minority rights within the UN system.”11
The Universal Declaration does affirm the significance of culture. Article 27 of the Declaration enshrines the right to participate in cultural life.12 First proposed by UNESCO, article 27 was relied on by the United States, Canada, and Latin American countries to fend off proposals that the Declaration contain a provision explicitly devoted to minority protection. The United States, squaring off against the USSR, several eastern European countries, Lebanon, and India, argued that article 27, together with article 1, which contains a commitment to non-discrimination, would suffice to protect minority cultures and that, in any event, minority protection was a “European issue”13 not worthy of universal treatment.
Australia argued more bluntly that the principle of assimilation should inform the terms of the Declaration. The USSR delegation, seeking unsuccessfully to generate support for minority protection from developing countries, caustically noted that “Australia had carried out a policy of forceful elimination of its aboriginal groups and … the North American Indian had almost ceased to exist in the United States.”14 Article 27 was also relied on to block efforts to include cultural genocide in the definition of the Genocide Convention, which was being drafted simultaneously by another committee of the U.N. General Assembly. Cultural protection, it was argued, should be advanced under the auspices of the Universal Declaration, not by means of the Genocide Convention, as it would risk less interference with the domestic jurisdiction of States. The final wording of article 27 of the Declaration favored cultural homogeneity over cultural diversity by enshrining “the right freely to participate in the cultural life of the community.”15
Despite its silence on minority protection, by guaranteeing freedom of expression, freedom of religion, rights of cultural and political participation, and equality rights to “everyone,” the Declaration nonetheless guarantees equal citizenship to members of minorities and protects them from the discriminatory exercise of State power. It protects interests that members of minority communities share with members of the majority as opposed to interests that distinguish minorities from majority populations. Protecting interests that minorities and majorities share, such as freedom of expression and religion, fits comfortably with a conception of international human rights law as a field devoted to shielding essential features of what it means to be human from the exercise of sovereign power.
Disagreement over the role that minority rights should play in the post-war international legal order also partly accounts for the political and institutional maneuverings that led to the splitting of the Universal Declaration’s united register of human rights into two separate sets of rights entrenched, respectively, in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The primary source of controversy was whether to include quasi-judicial supervisory machinery to oversee States’ obligations and, if so, whether all Declaration rights could be subject to such machinery. On its surface, the debate was about justiciability, with proponents of division, led by the United States and Great Britain, arguing that, because they contemplated positive obligations on States, social, economic, and cultural rights were incapable of legal resolution and therefore should not be included in a unified document implementing the Universal Declaration. The Soviet bloc, for its part, was in favor of enshrining social, economic, and cultural rights but resisted quasi-judicial oversight of both categories of rights.16
But no doubt beneath the surface of these debates lay deep ideological disagreements about the respective roles of the State and market in protecting social, economic, and cultural interests. The upshot was that the International Covenant on Civil and Political Rights provided for the creation of the Human Rights Committee to review State compliance, and an Optional Protocol empowered it to deal with individual complaints of violations of Covenant rights by States also party to the Optional Protocol. The International Covenant on Economic, Social, and Cultural Rights, in contrast, provided no equivalent right of individual petition and limited its monitoring mechanism to State reporting procedures.
Not only was the common register of human rights in the Universal Declaration split into two separate Covenants. The right to participate in cultural life in article 27 of the Universal Declaration itself was split in two. Article 15 of the International Covenant on Economic, Social, and Cultural Rights entrenches “the right of every one to take part in cultural life.” At the behest of the Sub-Commission, the International Covenant on Civil and Political Rights contains article 27, which awkwardly affirms that persons belonging to ethnic, religious, or linguistic minorities “shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” On the one hand, article 27 of the International Covenant on Civil and Political Rights represented the political success of those who sought, unsuccessfully, to have minority protection enshrined in the Universal Declaration. On the other hand, the text of article 27 suggests that minority rights are individual rights to engage in particular activities in community with others, not collective rights of a minority population to a measure of autonomy from the broader society in which it is located.17 And article 15 of the International Covenant on Economic, Social, and Cultural Rights appeared to continue in the tradition of the Universal Declaration of favoring cultural homogeneity over cultural diversity.18
The individualistic thrust of article 27 is underscored by the fact that it can be made the basis of a complaint before the Covenant’s supervisory body, the Human Rights Committee, which is empowered to hear only individual, not collective, claims. This is in contrast to article 1 of the Covenant, which guarantees a right of self-determination to all “peoples,” which, due to its collective nature, cannot form the basis of such a complaint. On the one hand, the Covenant affords minorities a valuable avenue of international legal redress by empowering the Human Rights Committee to interpret the nature and scope of article 27 protection in the context of specific disputes. On the other hand, because the Human Rights Committee has held that it cannot hear complaints that allege violations of the right of self-determination, it has blunted the capacity of the Covenant to provide an institutional site for the adjudication and elaboration of the collective rights of minority populations in international law.19
Not only are the rights enshrined in article 27 framed in individualistic terms. The interests they aspire to protect can be comprehended in universal terms, as features of existence essential to what it means to be a human being. The capacity to participate in one’s culture, to hold and exercise spiritual beliefs, and to speak to others in a common language all plausibly possess universal value. That is, cultural, religious, and linguistic affiliations help to shape who all of us are. They constitute important features of what it means to be human.20 Article 27 thus protects interests that are relevant to all in circumstances where they are likely to be threatened, namely, when a majority seeks to impose its cultural, religious, and linguistic beliefs and preferences on a minority whose members hold different beliefs. The U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, proclaimed by the General Assembly in 1992, exhibits similar tendencies. According to its Preamble, the 1992 Declaration was “inspired by the provisions of article 27” of the Covenant. It declares that minorities possess rights to enjoy their own culture, to practice their own religion, and to use their own language; to participate in cultural, religious, social, economic, and public life; to participate in decisions on the national and, where appropriate, regional level; and to associate with other members of their group and with persons belonging to other minorities. But, like article 27 of the International Covenant, the Declaration casts these rights in individualistic terms, vesting in “persons belonging to minorities.” And the interests that the 1992 Declaration seeks to protect—cultural, religious, and linguistic affiliation, political participation, and freedom of association—are the same as those underlying article 27. Universal in significance, they are constituent features of human identity shared by members of majorities and minorities alike.21
Within this universal and individualistic framework, however, the Human Rights Committee has manifested a willingness to interpret article 27 to protect some activities that possess non-universal and collective dimensions. Several of its decisions contemplate the idea that the right to enjoy one’s culture includes rights to engage in economic activities essential to cultural reproduction. In Ivan Kitok v. Sweden,22 for example, under Swedish law, an ethnic Sami was denied rights to herd reindeer. Kitok was a Sami living in Sami territory and had a herd of reindeer, but he was not a Sami village member. Under Swedish law, a Sami village member possesses rights to hunt and fish on a large part of the territory. It also authorizes members’ reindeer herds to graze on public and private lands. The purpose of the restrictions is to ensure the future of reindeer breeding and the livelihood of those engaged in it. The village allowed, not as of right, Kitok to hunt and fish, and to be present when calves were marked and herds rounded up and reassigned to owners, in order to safeguard his interests.
The Committee held that “reindeer husbandry is so closely connected to the Sami culture that it must be considered part of the Sami culture itself,” and where economic activity is “an essential element in the culture of an ethnic community,” it falls under the protection of the Covenant.23 It saw the purpose of the Swedish law as twofold: to restrict the number of reindeer breeders for economic and ecological reasons and to secure the preservation of the Sami minority. It held this dual purpose to be valid, but it expressed “grave concerns” that the means chosen was not proportionate to its objective, because it failed to deploy “objective ethnic criteria in determining membership in a minority.”24 Despite this disproportionality, the Committee held Sweden not to be in violation of the Covenant because the law in question was enacted to protect the rights of the minority as a whole, possessed a reasonable and objective justification, and was necessary for the community’s continued viability and welfare.
Similarly, in Ángela Poma Poma v. Peru, an indigenous farming community’s pastureland had been severely degraded, and much of their livestock had died, as a result of a government-authorized water diversion project. The Committee defined the scope of article 27 in terms similar to Kitok, as protecting against State measures that “substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community.”25 It added, moreover, that State measures of this sort require “not mere consultation but the free, prior and informed consent of the members of the community.”26
Other cases suggest that other civil and political rights contained in the International Covenant of Civil and Political Rights protect minority interests in relation to territory. In Hopu and Bessert v. France, the Human Rights Committee heard a complaint by indigenous Polynesians who claimed to be the lawful owners of land in Tahiti where the French Polynesian authorities were constructing a resort.27 The resort was being built on an indigenous historical burial ground and around a lagoon that was still used by thirty indigenous families for subsistence fishing. The Covenant does not enshrine a right to property, and article 27 was not available to the petitioners because France had made a reservation against its application. Instead, at issue were articles 17 and 23 of the Covenant, which enshrine, respectively, rights to privacy and to a family life.
With respect to the right to a family life, the Committee ruled that the term family “is to be given a broad interpretation so as to include all those comprising the family as understood in the society in question,” stating that “[i]t follows that cultural traditions should be taken into account when defining the term ‘family’ in a specific situation.”28 It also noted that “the relationship to their ancestors [is] an essential element of their identity” and plays “an important role in their family life.” The Committee concluded that the State, by authorizing third-party use of indigenous territory, was in violation of the right to a family life as guaranteed by the Covenant.29 It reached a similar conclusion with respect to the right to privacy.30
Hopu and Bessert is also significant in what it contributes to debates between universalism and relativism. Moral conceptions of human rights conceive of universal norms as constituting the normative sphere of international human rights law. Beyond this sphere lie non-universal, culturally relative norms whose legality turns on domestic law. When such norms are vested with domestic legal validity, from this perspective, international human rights monitor their legal consequences to ensure that they do not compromise essential features of what it means to be human. As is well known, critics of such conceptions allege that universal accounts of human rights fail to grasp that at least some moral standards are relative to specific cultural and historical contexts and that there are no universal means of judging the merits of culturally specific ways of life. Cultural relativists argue that universalism masks the imposition of culturally specific beliefs on communities that possess different inner logics, whereas universalists in turn charge that relativists authorize violations of human rights in the name of cultural difference.
Debates between universalism and relativism, from a moral perspective, thus are debates about whether a legal norm possesses universal value and therefore belongs within international law, or whether it is specific to the culture from which it emanates and therefore lies outside of, but subject to, international law. In Hope and Bessert, the Human Rights Committee interpreted article 23 to protect interests that speak to non-universal and collective dimensions of indigenous Polynesian identity. What Hopu and Bessert reveals is that, contrary to moral perspectives, legal debates between universalism and relativism are not debates about international law. They occur in the context of determining the nature and scope of international human rights and their justifiable limits. They are not debates about what is inside—and what is outside—the field. They are debates within international law.
What international minority rights require States to do or not do is also deeply ambiguous. It is a truism of minority protection that it requires the prohibition of discrimination against minorities and positive measures that protect minorities from assimilation. This truism predated contemporary international legal instruments providing for minority protection. In a 1935 advisory opinion, for example, the Permanent Court of International Justice held that Albania violated the minority rights of Greek nationals by abolishing Greek private schools, stating that “there would be no true equality between a majority and a minority if the latter were deprived of their own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being a minority.”31 But this truism also informs more contemporary understandings of minority protection. The “thorough study of the problem of minorities” called for by the General Assembly in 1948 was finally commissioned in 1971. This resulted in the influential 1979 report by U.N. Special Raporteur Francesco Capotorti on the rights of persons belonging to ethnic, religious, and linguistic minorities. In his report, Capotorti characterizes minority protection as requiring both equal treatment and positive measures.32
Similar ambiguities plague article 27 of the Covenant. On the one hand, its drafters, and States party to its terms, assumed that it obligates States to allow minority members to engage in religious, cultural, and linguistic practices but also that it does not require States to adopt positive measures to facilitate such practices.33 This explains the negative phrasing of article 27, which provides that members of a minority “shall not be denied the right” to enjoy their culture, practice their religion, or use their language.34 On the other hand, international legal actors and institutions have begun to comprehend article 27 in a more positive light. The 1979 U.N. Report by the Special Rapporteur, for example, argued that the implementation of article 27 rights “calls for active and sustained intervention by states.”35 The Human Rights Committee has followed suit, stating that minority rights in article 27 should not be merely equated with equality rights, and that “positive measures by States may … be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion.”36 But the Committee has also held that an official language in the public sphere does not violate the Covenant.37 It has also held that, although equality requires a State to not discriminate between religions, the right of minority members to profess and practice their religions does not impose an obligation on the State to fund private religious schools.38 The Committee occasionally requests States to adopt positive measures to protect minority communities, but such requests are typically phrased in general terms, providing little insight on the precise positive obligations that article 27 imposes on States.39
The Sub-Commission commissioned another study, in 1990, on “peaceful and constructive solutions to situations involving minorities,” which resulted in a call to States to adopt comprehensive strategies to address minority concerns by guaranteeing equal treatment and by promoting linguistic, educational, and cultural pluralism, territorial decentralization, and effective political participation.40 It also recommended the establishment of a Working Group on Minorities, which has since met annually.41 In 2005, the High Commissioner for Human Rights appointed an Independent Expert on Minority Issues, who subsequently identified four broad areas of concern in relation to minority protection: protecting the existence of a minority; protecting the right of minorities to enjoy their cultural identities and to reject forced assimilation; ensuring effective nondiscrimination and equality; and ensuring effective participation of members of minorities in public life.42 The Independent Expert also called for increased attention to minority communities in the context of poverty-reduction strategies and in the promotion of political and social stability.43