Abstract
In philosophical human rights discourses the relationship between “equality” and “difference” is very often discussed in highly abstract terms. The first part of this chapter is thus dedicated to the question how it is possible to reconcile political unity with legal equality and cultural diversity within the framework of the history of state-formation and nation-building in Europe. The philosophical and empirical reconstruction of these processes reveals that there is not a uniform development of national states in the nineteenth century, but that two, even opposing normative concepts of the French state-nation and the German ethnic nation-state dominate the “constitutionalization” not only of human rights, but also of minority rights protection until the very day. Thereby it becomes obvious from a de-constructivist approach that all “primordial” theories of ethnicity are part of the problem through their “naturalization of (cultural) difference” so that only a constructivist approach can – against the ideologies of ethno-nationalism, but also liberal nationalism – provide for a political theory for the normative justification of the legal instruments of minority protection and cultural diversity management. The second part of the chapter gives a comprehensive overview on the developments in legal standard setting with regard to minority rights. This is discussed in light of the problem of a definition of the concept “minority” and the right to self-determination of peoples as well as the swing of the pendulum in terms of the interrelationship between individual rights and group-oriented rights and identities. The third part of the chapter deals with the violation respectively implementation of human and minority rights in the life-cycles of ethnic conflict. In light of the wars in the ex-Yugoslav republics as empirical case study it can be demonstrated how “ethnic entrepreneurs” are able to steer a political process of ethno-mobilization in the pre-conflict phase so that “cultural diversity” is certainly not the root-cause of ethnic conflict. Finally, with regard to the conflict and the post-conflict phase this part discusses lessons to be learned from the implementation of conflict settlement agreements and their implementation again giving evidence against the “accommodationist” versus “integrationist” approaches in power-sharing discourses that reconstruction of war-torn states and democracies cannot be achieved without simultaneous reconciliation efforts.
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- 1.
See the quotation of Moyn (2007) by Flynn in this volume. The former, when hypothesizing that “it was liberal nationalism, which sought to secure the rights of citizens resolutely in the national framework,” totally neglects the history of minority rights protection on the basis of international treaties and the “supra-national” minority rights regime already developed after WWI within the League of Nations.
- 2.
Cf. the text of the Declaration of Independence, in O’Connor and Sabato (2008, 734).
- 3.
See Conseil Constitutionnel, Decision 91–290 DC, 9 May 1991. The Conseil thereby declared the phrase “le peuple corse, composante du peuple français” of Article 1 of the Draft Autonomy Statute of Corsica unconstitutional. Cf. also Conseil Constitutionnel, Decision 99–412 DC, 15 June 1999 declaring the ratification of the Council of Europe´s Charter of Regional and Minority Rights unconstitutional.
- 4.
This political and cultural context is again neglected by those authors like Barry (2001) who represent a form of liberalism which is labeled “orthodox civil liberterian” in this volume by Sadurski because of their hostility to cultural particularism and group-based identities of individuals.
- 5.
As can be seen, the universalistic term “citoyen” is thereby reduced to the “realistic” term citizen in the dual meaning of “member of a certain state” and “bourgeois.”
- 6.
See Weber (1976).
- 7.
- 8.
For the following see my detailed analysis in Marko (1995, 147–162).
- 9.
In this respect – and contrary to the history of human rights institutionalization – membership, even in legal terms of citizenship, does not entail the equal right to political participation for minority members. Cf. Flynn quoting Forst (2010) in this volume.
- 10.
The text of Article 66 paragraph 3 and Article 67 quoted here can be accessed at www.vfgh.gv.at/cms/vfgh-site/english/downloads/englishverfassung.pdf. It is in particular the German text which confers the restrictive and paternalistic meaning.
- 11.
See, Mann (2004).
- 12.
In the human rights discourse this is called “substantive minimalism” by Benhabib in this volume.
- 13.
See Muller (2008), who argues that “ethnic disaggregation or partition is often the least bad answer” once “ethnic nationalism has captured the imagination of groups in a multiethnic society.”
- 14.
I borrow this concept from Minow’s seminal study (1991) where she argues that it is “essentially” the power of definition by certain groups which constitutes “the norm” as “normalcy” so that the “other(s)” seem to deviate. See in a very similar vein Azamova in this volume when she argues that “the structural features of the sources of social injustice are encoded in the very operation of judgement…”
- 15.
- 16.
See, for instance, Smith (1991, 39 and 20), where he states that ethnicity as “primordial quality exists in nature, outside time. It is one of the ‘givens’ of human existence.”
- 17.
I have analyzed these ideological underpinnings in detail in Marko (2008b, 251–270, fn 7).
- 18.
- 19.
The social-constructivist approach has been developed as a comprehensive approach long before Peter Berger and Thomas Luckmann by Hermann Heller (1983).
- 20.
See my summary of a 3 year long research project under the 6th EU-Framework program with ten partners from all over Europe on the break-down of Former communist Yugoslavia: Marko (2010, 1–38).
- 21.
Also Benhabib argues in this volume from the philosophical perspective against Rawls claim for “liberal toleration and peaceful coexistence” that “human rights embody principles which need contextualization and specification in the form of legal norms.”
- 22.
This is also the underlying premise of Azamova’s “theory of critical political judgement” developed in this volume when she argues that “social interactions are processes of cooperation-within-conflict.”
- 23.
Van der Stoel, address given at the CSCE Human Dimensions Seminar (1993). The very same phrase was – in order to circumvent the epistemological problem – developed long before by the US Supreme Court Justice Stewart with regard to obscenity in a concurring opinion in Jacobellis v. Ohio 378 US 184 (1964).
- 24.
Report of the International Commission of Jurists (1920), LNOJ Spec Supp. 3, 5 and 6.
- 25.
Report of the Commission of Rapporteurs (1921), League Doc. B7.21/68/106, 28.
- 26.
Cf. generally Musgrave (1997, 32–37).
- 27.
This is in general the seduction for the method of legal positivism when giving priority to strict “textual” interpretation, because this is the easiest way to find a “solution” or to bend the law in the interest of a party [the German term for this accusation is in short “Begriffsjurisprudenz”].
- 28.
“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development…”; “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”
- 29.
- 30.
See Calic (1995).
- 31.
This can be seen also from the Advisory Opinion of the International Court of Justice of 22 July 2010, “Accordance with international law of the unilateral declaration of independence in respect of Kosovo.” The Court argues that there is “in general international law, no applicable prohibition of declaration of independence” (at paragraph 84), and comes to the conclusion that the unilateral declaration of independence by the “leaders of the Albanian people in Kosovo” does neither violate SC Res 1244 nor the legal system created by UNMIK regulations (at paragraphs 118/19). However, this conclusion is based on the rather “abstract” construction of an “Albanian leadership” being not “identical” with the members of the institutions of provisional self-government despite of the fact that the Albanian members of the Kosovo Assembly in the presence of the Kosovo President adopted the declaration of independence in a meeting of the Kosovo Assembly. This “construction” was necessary, after the Court had declared that SC 1244 and UNMIK regulations are still in force and the declaration of independence can be seen merely as an “attempt to determine finally the status of Kosovo” (at para. 114). If SC Res 1244 is still in force, as the Court argues, then a final “political status” of Kosovo is not yet achieved, hence Kosovo not yet a state which can be recognized! Hence, the juridical self-restraint of the Court, not to issue an opinion on the question of “statehood” of Kosovo, as it is claimed by the supporters of the declaration of independence, is based on the “political wisdom” that the legitimacy of the ICJ would not be sufficient to resolve this issue and – politically speaking – to keep the ball rolling.
- 32.
- 33.
- 34.
- 35.
- 36.
See ICISS (2001).
- 37.
See UN GA, Resolution A/60/1 of 20 September 2005.
- 38.
See also Benhabib in this volume.
- 39.
All the documents quoted in the following are reprinted in Benoît-Rohmer (1996).
- 40.
Cf. also Sadurski’s approach for the justification of affirmative action measures in this volume against – what he calls – the philosophically implausible “per se theory of discrimination” developed in the jurisprudence of the US Supreme Court or the European Courts.
- 41.
See Benoît-Rohmer (1996, 40–44).
- 42.
See Benoît-Rohmer (1996, fn39).
- 43.
- 44.
All reports and commentaries can be accessed at www.coe.int/minorities.
- 45.
See Lantschner (2010).
- 46.
Council Directive 2000/42/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L180, 22–6, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L303, p 16 and Council Directive 2004/113/EC concerning equal treatment between men and women in access to and supply of goods and services, OJ L 373, 37. See also Meenan (2007).
- 47.
At § 13, available at www.coe.int/minorities.
- 48.
See Marko (2008b, 251–280, fn7).
- 49.
See the preambular provisions of the FCNM referring to “stability, security and peace in this continent,” “cultural diversity…a factor, not of division, but of enrichment of each society” and the necessity of “transfrontier co-operation between regional and local authorities” in addition to co-operation between States.
- 50.
See instead of all Wolff (2007).
- 51.
Benhabib in the same vein speaks about “liberal indifference” in this volume.
- 52.
It is thus very important to distinguish minorities from ‘co-nations’ according to their self-perception and ensuing claims. Due to their different perception of facts, co-nations will never be satisfied even with the best minority protection instruments. For the term co-nation see Malloy (2005) and for empirical evidence for the necessary distinction between minorities and co-nations Marko and Lantschner (2008, 361–2). See also Benhabib’s powerful argument for a human right to democracy requiring “robust forms of self-government through representative or more participatory forms of institutions.”
- 53.
See, above all, Mulaj (2008, fn35).
- 54.
See for all these elements of the process of ethno-mobilization ending up in a spiral of violence in the wars in the Balkans in the 1990ies Ingrao and Emmert (2009).
- 55.
- 56.
See in particular the Rapport of the Special UN Rapporteur, the former Polish Prime Minister Mazowiecki, E/CN;4/1992/S-1/10, stating already on 27 October 1992 at § 6: “… the principle objective of the military conflict in Bosnia-Herzegovina is the establishment of ethnically homogenous regions. Ethnic cleansing does not appear to be a consequence of the war but rather its goal.”
- 57.
- 58.
As this is now determined by the International Court of Justice, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007.
- 59.
See in particular Kaufman (2001).
- 60.
Wolff (2007, 152, fn50).
- 61.
See recently McGarry et al. (2008, 41–88).
- 62.
See the case study on South Tyrol with the, insofar, programmatic title by Woelk et al. (2008).
- 63.
See McGarry and O’Leary (2008, 369–408).
- 64.
See Marko (forthcoming).
- 65.
- 66.
See Marko (forthcoming).
- 67.
See in particular Marko-Stöckl (2010, 327–352).
- 68.
Simo Drljaca stated towards the judges: “You have your facts. We have our facts. You have a complete right to choose between the two versions.”
- 69.
I borrow this phrase from Sabrina Ramet (2007, 26–70).
- 70.
I.e. to identify also narratives of cooperation and tolerance that cut across ethnic lines, stressing the commonalities of peoples despite ethnic conflict and war. See in general MacDonald (2009, 391–424).
References
Advisory Opinion of the International Court of Justice of 22 July 2010. Accordance with international law of the unilateral declaration of independence in respect of Kosovo. Available at: www.icj-cij.org/homepage/index.php
Barry, B. 2001. Culture and equality. Cambridge: Polity.
Bell-Fialkoff, A. 1996. Ethnic cleansing. New York: St. Martin’s Press.
Benoît-Rohmer, F. 1996. The minority question in Europe. Texts and commentary. Strasbourg: Council of Europe Publishing.
Calic, M.-J. 1995. Krieg und Frieden in Bosnien-Hercegovina. Frankfurt/M: Suhrkamp.
Calic, M.-J. 2009. Ethnic cleansing and war crimes, 1991–1995. In Confronting the Yugoslav controversies. A scholars’ initiative, ed. C. Ingrao and T.A. Emmert. Washington, DC: Purdue University Press.
Canovan, M. 1996. Nationhood and political theory. Cheltenham/Northfield: Edward Elgar.
Caps, P.S. 2008. Constitutional non-recognition of minorities in the context of unitary states: An insurmountable obstacle? In The participation of minorities in public life, ed. Venice Commission. Strasbourg: Council of Europe Publishing.
Choudhry, S. (ed.). 2008. Constitutional design for divided societies. Oxford: Oxford University Press.
Clark, B. 2007. Twice a stranger: How mass expulsion forged modern Greece and Turkey. London: Granta Books.
Conseil Constitutionnel, Decision 91–290 DC. 9 May 1991. At www.conseil-constitutionnel.fr/decision/1991/91290dc.htm
Conseil Constitutionnel, Decision 99–412 DC. 15 June 1999. At www.conseil-constitutionnel.fr/decision/1999/99412/99412dc.htm
Forst, R. 2010. The justification of human rights and the basic right to justification: A reflexive approach. Ethics 120: 710–740.
Gazzini, T. 2005. The changing rules on the use of force in international law. Manchester: Manchester University Press.
Grey, C. 2000. International law and the use of force. Oxford: Oxford University Press.
Heller, H. 1983, Staatslehre, 6. revidierte Auflage. Tübingen: Mohr.
Hofmann, R. 2003. The use of force in minority-majority relations: An international law perspective. In Radical ethnic movements in contemporary Europe, ed. F. Daftary and S. Troebst. Oxford: Berghahn Books.
ICISS. 2001. “The responsibility to protect,” Report of the international commission on intervention and State Sovereignty. Ottawa: International Development and Research Center.
Ingrao, C., and T.A. Emmert (eds.). 2009. Confronting the Yugoslav controversies. A scholars’ initiative. Washington, DC: Purdue University Press.
International Court of Justice, Bosnia and Herzegovina v. Serbia and Montenegro, Judgement of 26 February 2007. Available at: www.icj-cij.org
Kaufman, S. 2001. Modern hatreds. The symbolic politics of ethnic war. Ithaca/London: Cornell University Press.
Kemp, W. (ed.). 2001. Quiet diplomacy in action: The OSCE high commissioner on national minorities. The Hague: Kluwer.
Kumar, R. 1999. Divide and fall? Bosnia in the annals of partition. London: Verso.
Laden, A.S., and D. Owen (eds.). 2007. Multiculturalism and political theory. Cambridge: Cambridge University Press.
Lantschner, E. 2010. Soft Jurisprudence im Minderheitenrecht. Standardsetzung und Konfliktbearbeitung durch Kontrollmechanismen bi- und multilateraler Instrumente. Baden-Baden: NOMOS.
Levy, J.T. 2007. Contextualism, contextualism, constitutionalism, and modus vivendi approaches. In Cultural pluralism and political theory, ed. A. Laden and D. Owen. Cambridge: Cambridge University Press.
MacDonald, D. 2009. Living together or hating each other. In Confronting the Yugoslav controversies. A scholars’ initiative, ed. C. Ingrao and T.A. Emmert. Washington, DC: Purdue University Press.
Malloy, T. 2005. National minority rights in Europe. Oxford: Oxford University Press.
Mann, M. 2004. The dark side of democracy: Explaining ethnic cleansing. Cambridge: Cambridge University Press.
Marko, J. 1995. Autonomie und Integration. Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich. Wien: Graz-Köln.
Marko, J. 2008a. The new Kosovo constitution in a regional comparative perspective. Review of Central and East European Law 33: 437–450.
Marko, J. 2008b. The law and politics of diversity management: A neo-institutional approach, in European Yearbook of Minority Issues, 6, 2006/7. The Hague: Martinus Njihoff Publishers.
Marko, J. 2010. Processes of ethnic mobilization in the former Yugoslav Republics reconsidered. Journal of South East Europe 34(1): 1–38.
Marko, J. (forthcoming). Politics and constitutional reform in Bosnia-Herzegovina. In Civic and uncivic values in Bosnia-Herzegovina: The record since Dayton, ed. Listhaug, O., and Ramet, S.P. Oxford: Oxford University Press.
Marko, J., and E. Lantschner. 2008. Conclusions. In European integration and its effects on minority protection in South-East Europe, ed. E. Lantschner et al. Baden-Baden: Nomos.
Marko-Stöckl, E. 2010. My truth, your truth – our truth? The role of history teaching and truth commissions for reconciliation in former Yugoslavia in European Yearbook of Minority Issues, 2007/08, 327–352, Leiden-Boston.
McGarry, J., and B. O’Leary. 2008. Consociation and its critics: Northern Ireland after the Belfast agreement. In Constitutional design for divided societies, ed. S. Choudhry, 369–408. Oxford: Oxford University Press.
McGarry, J., B. O’Leary, and R. Simeon. 2008. Integration or accomodation? The enduring debate in conflict regulation. In Constitutional design for divided societies, ed. S. Choudhry, 41–88. Oxford: Oxford University Press.
Meenan, H. (ed.). 2007. Equality law in an enlarged European Union. Understanding article 13 directives. Cambridge: Cambridge University Press.
Minow, M. 1991. Making all the difference. Inclusion, exclusion and American law. Ithaca/London: Cornell University Press.
Moyn, S. 2007. The last utopia: Human rights in history. Cambridge: Harvard University Press.
Muharremi, R. 2008. Kosovo’s declaration of independence: Self-determination and sovereignty revisited. Review of Central and East European Law 33(4): 401–435.
Mulaj, K. 2008. Politics of ethnic cleansing. Nation-state building and provision of in/security in twentieth Century Balkans. Plymouth: Lexington Books.
Muller, J.Z. 2008. Us and them. The enduring power of ethnic nationalism. Foreign Affairs 87(44): 141–145.
Musgrave, T.D. 1997. Self-determination and national minorities. Oxford: Clarendon.
O’Connor, K., and L.J. Sabato. 2008. American Government. New York: Pearson Longman Education.
Parzymies, S. (ed.). 2007. OSCE and minorities. Assessment and prospects, 14–17. Warsaw: Wydawnictwo Naukowe SCHOLAR.
Ramet, S. 2007. The dissolution of Yugoslavia: Competing narratives of blame and resentment. Südost Europa 55(1): 26–69.
Ratner, S. 1998. Ethnic conflict and territorial claims: Where do we draw a line? In International law and ethnic conflict, ed. D. Wippman. Ithaca/London: Cornell University Press.
Report of the Commission of Rapporteurs. 1921. League Doc. B7.21/68/106, 28.
Report of the International Commission of Jurists. 1920.LNOJ Spec Supp. 3, 5 and 6.
Schabas, W.A. 2000. Genocide in international law. Cambridge: Cambridge University Press.
Smith, A. 1991. National identities. London: Penguin.
Stokes, G. 2009. Independence and the fate of minorities. In Confronting the Yugoslav controversies. A scholars’ initiative, ed. C. Ingrao and T.A. Emmert, 1991–1992. Washington, DC: Purdue University Press.
Talbott, W. 2005. Which rights should be universal? Oxford: Oxford University Press.
Van der Stoel, M. 1993. CSCE Human Dimensions Seminar. Case Studies on National Minority Issues: Positive Results. Warszaw. Available at: www.osce.org/hcnm/documents/speeches/1993/24may93.html
Verstichel, A. 2008. Special measures to promote minority representation in elected bodies: The experience of the OSCE high commissioner on national minorities. In The participation of minorities in public life, ed. Venice Commission. Strasbourg: Council of Europe Publishing.
Verstichel, A., et al. (eds.). 2008. The framework convention for the protection of national minorities: A useful pan-European instrument? Antwerp: Intersentia.
Wachtel, A., and C. Bennet. 2009. The dissolution of Yugoslavia. In Confronting the Yugoslav controversies. A scholars’ initiative, ed. C. Ingrao and T.A. Emmert. Washington, DC: Purdue University Press.
Weber, E. 1976. Peasants into frenchmen. The modernization of rural France, 1870–1914. Stanford: Stanford University Press.
Woelk, J., F. Palermo, and J. Marko (eds.). 2008. Tolerance through law. Self governance and group rights in South tyrol. Leiden: Brill.
Wolff, S. 2007. Ethnic conflict, a global perspective. Oxford: Oxford University Press.
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Marko, J. (2012). Ethnopolitics. The Challenge for Human and Minority Rights Protection. In: Corradetti, C. (eds) Philosophical Dimensions of Human Rights. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2376-4_14
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