“minorities as such do not exist“ - unitn.it · “minorities as such do notexist“ •...

“Minorities as such do not exist“

• Objective distinctive criteria (language, religion)

• Demos vs. Ethnos – legal relevance depends on constitutional tradition

• “Ethnic“? linked to cultural and historical aspects

• “Ethnic“ vs. “national“ minorities

Minority Rights - conceptsWoelk 1

“Even though I may not have a definition of whatconstitutes a minority, I would dare to say thatI know a minority when I see one.”Max van der Stoel, first OSCE High Commissioner on National Minorities

Woelk Minority rights - concepts

“Minority”: definitions (I)

A group, numerically inferior to the rest of the population

of a State, in a non-dominant position, whose members -

being nationals of the State - possess ethnic, religious or

linguistic characteristics differing from those of the rest of

the population and show, if only implicitly, a sense of

solidarity, directed towards preserving their culture,

traditions, religion or language.

Francesco CapotortiStudy on the Rights of Persons belonging to

Ethnic, Religious and Linguistic Minorities

UN Document E/CN.4/Sub.2/384/Add.1-7 (1977)

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A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law.

Jules DeschênesProposal Concerning a Definition of the Term 'Minority'UN Document E/CN.4/Sub.2/1985/31 (1985)

“Minority”: definitions (II)


“Minority”: definitions (III)

A group of persons in a State who:

(a)reside on the territory of that State and are citizens thereof;

(b)maintain longstanding, firm and lasting ties with that State;

(c)display distinctive ethnic, cultural, religions or linguistic characteristics;

(d)are sufficiently representative, although smaller in number than the rest of the population of that State or of a region of the state;

(e)are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their tradition, their religion or their language.

Council of Europe Parliamentary Recommendation 1201 (1993)

Who are “Minorities“ in Belgium?Opinion by Venice Commission CDL-AD (2002) 1

40. A group of persons that is numerically inferior to the rest of the population, shares

common ethnic, cultural, linguistic or religious features and wishes to preserve them

is not to be considered as a minority in the sense of the Framework Convention if

and to the extent that it finds itself in a dominant or co-dominant position.

41. In situations of decentralization of powers, the existence of a “minority” within the

meaning of the Framework Convention and in particular the question of whether a

group is dominant or co-dominant must be assessed both at the State and at the sub-

State levels.

43. […] in Belgium, in the light of the existing equilibrium of powers between the

Dutch-speaking and the French-speaking at the State level, French-speakers are in

a position of co-dominance and therefore do not constitute a minority […] at this

level, despite being numerically inferior to Dutch-speakers.

44. German-Speakers, instead, are to be considered as a minority […] at the State level.

45. At the regional level, […] French-speakers in the Dutch-language Region […] may

be considered as a minority […], as may Dutch-speakers and German-speakers in

the French-language Region.

http://www.venice.coe.int/docs/2002/CDL-AD%282002%29001-e.asp

Woelk Minority Rights 5

Woelk Minority rights - concepts 6

Regionally non-dominant titular peoples: the next phase

in minority rights? (Tim Potier, 2001 – www.ecmi.de)

“As in previous reports, we define ethnic minority as groups that

are numerically in a minority in a given part of Kosovo as

compared to their immediate neighbours.

On this basis we have not covered Kosovo Serbs in those northern

municipalities where they form a numerical majority but we have

included reference to Kosovo Albanians in those same and other

specific locations where they find themselves in a minority and find

themselves facing problems akin to those faced by most minorities

in Kosovo”.

UNHCR/OSCE Assessment of the Situation of Ethnic Minorities in

Kosovo (period covering June

through September 2000), 23rd October 2000, p.1, footnote 1.


“Minority”: a Working Definition

A population group

with ethnic, religious and linguistic characteristics

differing from the rest of the population,

which is non-dominant,

numerically less than the rest of the population

and has the wish to hold on to the separate

identity. K. Henrard


Typology of minorities in SEE

• “New“ national minorities (narodi)after losing status as constituent “nations“ of SFRY(Croats in Serbia, Serbs in Croatia)

• Old national minorities (narodnosti)“nationalities“ under SFRY-Constitution, external national homeland(Hungarians, Bulgarians, Slovaks, Romanians, ...)

• Ethnic minoritiesregionally concentrated ethnic groups without a kin-State(in particular Muslims in Sandzak)

• Dispersed minoritieslike above, but not concentrated anywhere (Roma)

• Special cases: Kosovo/a and BiH“Constituent peoples“ and “minority returns“; direct international rule

Croatia: Constitutional Law of 2002 on the Rights of National Minorities

Article 5

A national minority within the terms of this Law shall be considered a group of Croatian citizens whose members have been traditionally inhabiting the territory of the Republic of Croatia and whose ethnic, linguistic, cultural and/or religious characteristics differ from the rest of the population, and who are motivated to preserve these characteristics.


Hungary (I)Article 1

(1) This Act applies to all persons of Hungarian citizenship living in the Republic of Hungary who consider themselves members of any national or ethnic minority and to the communities of these people.

(2) For the purposes of the present Act a national or ethnic minority (hereinafter 'minority') is any ethnic group with a history of at least one century of living in the Republic of Hungary, which represents a numerical minority among the citizens of the state, the members of which are Hungarian citizens, and are distinguished from the rest of the citizens by their own language, culture and traditions, and at the same time demonstrate a sense of belonging together, which is aimed at the preservation of all these, and the expression and protection of the interests of their communities, which have been formed in the course of history.

Act LXXVII of 1993 on the Rights of National and Ethnic Minorities

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Hungary (II)Article 2

This Act does not apply to refugees, immigrants, foreign citizens settled in Hungary, or to persons of no fixed abode.

Article 61

(1) In accordance with this Act the following ethnic groups qualify as ethnic groups native of Hungary: Bulgarian, Gypsy, Greek, Croatian, Polish, German, Armenian, Romanian, Ruthenian, Serbian, Slovakian, Slovenian and Ukrainian.

(2) If a minority other than those listed in par (1) wish to prove that they meet the requirements specified in this Act, they may submit a petitionrelated to this subject to the Speaker of the National Assembly if supported by at least 1,000 voters who declare themselves members of this minority. In the course of this procedure the provisionsof Act XVII of 1989 on Referendums and Petitions shall apply.

Act LXXVII of 1993 on the Rights of National and Ethnic Minorities

http://www.minelres.lv/NationalLegislation/Hungary/Hungary_Minorities_English.htm

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Austria: Federal Act on Ethnic Groups (1976)

§ 1. (1) Ethnic groups in Austria and their members are under theprotection by law; preservation of ethnic groups and safeguarding of their existence are ensured. Their language and their traditions shall be respected.

(2) Ethnic groups in terms of the subject Federal Act are such groups of Austrian citizens living in parts of the Federal territory and having a language other than German as mother tongue and having traditions of their own.

(3) There are no restrictions for anybody to declare himself member of an ethnic group. A member of an ethnic group must not be discriminated by exercising or not any rights he is entitled to as such member. Nobody shall be obligated to give evidence of his/her being a member of an ethnic group.


Italy: LEGGE 15 dicembre 1999, n. 482"Norme in materia di tutela

delle minoranze linguistiche storiche"

Art. 2

1. In attuazione dell'articolo 6 della Costituzione e in armonia con i principi generali stabiliti dagli organismi europei e internazionali, la Repubblica tutela la lingua e la culturadelle popolazioni albanesi, catalane, germaniche, greche, slovene e croate e di quelle parlanti il francese, il franco-provenzale, il friulano, il ladino, l'occitano e il sardo.



“People” vs. “Minority”: Wanted - a Definition

• No universal valid definition of national/ethnic minority

• Distinction: international or domestic law

• Criteria:

� objective (distinguishing features, numbers, non-dominance)

� subjective (awareness; acknowledgement and socialrelevance)

• “New“ Minorities (still excluded; citizenship)

• Relation with Nation-State:

�Building ... Majority-population

�Exclusion ... Minority-group

State - legal fiction

Nations - historico-political fictions thatconstitute States


Migrants still“Gastarbeiter”?

Different objectives and requests?•Autochtonous minorities: be and remain different•Immigrants:

� economic and social integration in host society � Guarantee of cultural practices

Still true? (e.g. mosques)

Problem often rather “group” and “subjective” elements

Citizenship (objective criterion): different status – treatment•Autochtonous minorities: prohibition of assimilation•Immigrants: active policies for integration

Definitions: “NEW Minorities“


Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them.

They form at present non-dominant sectors of that society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

Definitions: Indigenous Peoples (I)


Their historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of thefollowing factors: a)Occupation of ancestral lands, or at least parts of them; b)Common ancestry with original occupants of these lands; c)Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood and lifestyle); d)Language (whether used as the daily language, as mother-tongue, as habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language); e)Residence in certain parts of the country, or in certain regions of the world; f)Other relevant factors.

José Martínez Cobo [Special Rapporteur of the UN Sub-Commissionon Prevention of Discrimination & Protection of Minorities]Study on the Problem of Discrimination against IndigenousPopulations, UN Doc. E/CN.4/Sub.2/1986/Add.4

Definitions: Indigenous Peoples (II)


• Long standing relations with territory, pre-colonisation• Distinct (and often incompatible) way of life • Relations with nature (resources)

Terra nullius doctrine (overcome in Mabo vs. Queensland 1992)Salt or Blue water doctrine (independence of former colonies)

Distinction in recognized rights – additional and specific:- right to land/territory- emphasis on customary law and own institutions

Conflicts: Restitution of land/land use, exploitation of natural resources

Specific international instruments:•ILO Convention no. 169, concerning Indigenous and Tribal Peoples in Indipendent Countries (1989) www.ilo.org/indigenous•Nordic Sami Convention (2005)•UN Declaration on the Rights of Indigenous Peoples (2007)

Indigenous Peoples(III)


Nunavut – “our land“

Sami people, Sámi,

or Saami

Indigenous PeoplesExamples


Materials

Venice Commission,

Opinion on possible groups of persons to which the Framework Convention for the

Protection of National Minorities could be applied in Belgium, Strasbourg, 12 March 2002 -

CDL-AD (2002) 1

http://www.venice.coe.int/docs/2002/CDL-AD(2002)001-e.asp

Venice Commission,

REPORT ON NON-CITIZENS AND MINORITY RIGHTS - CDL-AD(2007)001

http://www.venice.coe.int/docs/2007/CDL-AD(2007)001-e.pdf

Native Title Act 1993 (Australia)

http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/

ILO - Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent

Countries adopted on 27 June 1989 by the General Conference of the International Labour

Organisation at its seventy-sixth session; entry into force 5 September 1991

http://www.unhchr.ch/html/menu3/b/62.htm

http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169

UN Declaration of the United Nations on the Rights of Indigenous Peoples (2007)

http://www.un.org/esa/socdev/unpfii/documents/DRIPS_it.pdf

Liberté – Egalité - Fraternité

1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.

2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.

Declaration of the Rights of Man and of the Citizen

Approved by the National Assembly of France, August 26, 1789


Autonomy and Integration

Idealtypes of Group Relations

Joseph Marko (Univ. Graz)

Equality Inequality

Unity Integration Assimilation

Diversity Autonomy Segregation

Minority Rights - conceptsWoelk 22

From fictions…

identity-difference

…to functions

need of a triadicstructure:

– Identity

– Equality

– Difference

Woelk Minority Rights 23

Minority Rights: Toolbox

• Principle of Non-Discriminationno negative - legal - consequences for minority members

• Equal Rights (and Duties)relative concept: determination by comparison

Human Rights

• Collective Rights (bearer: group “as such“) - legitimacy?

• Individual Rights (bearer: minority member) -problem: group dimension and exercise

“Special“ Rights

Autonomy

Self-determination: preservation

of the group/identity

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