Ethno-racial identity (politics) by law: “Fraud” and “choice”

Abstract

Following an introduction to the changes in how ethno-racial identity is conceptualized in the social sciences and humanities by the destabilization of categorical frameworks, the author looks at how law reacts to these discussions and paradigm shifts, and argues that legal and administrative approaches face severe linguistic and conceptual limitations by operating within a “choice” and “fraud” binary. The article then questions if the free choice of identity exists as a principle of international minority protection law, a legal field that arguably represents a global political and ethical consensus. The author makes two claims. First, according to the basic tenet of legal logic, a proper right to free choice of identity allowing people to opt out of racial, ethnic, or national (minority) communities would necessitate the freedom to opt in to the majority or to any chosen group. The second claim, however, is that international law would not actually construct an approach to opting in. Thus, the right to free choice of identity is not an autonomous, sui generis right under international law.

Keywords:

• free choice of identity
• assimilation
• classification
• census
• ethnocorruption
• multiracial
• racial passing
• racial migration
• immutability
• racial fraud
• elective race

Notes

1. See, for example, Barth's analytical framework on construction, Tajfel's classic work Human Groups and Social Categories, or Brubaker's call for clarifying and deconstructing key concepts in “Beyond Identity” and warning against “groupism,” in Ethnicity Without Groups, or approaching “Ethnicity as cognition.”

2. See second wave feminism, the civil rights movement in the USA, LGBT movements, indigenous movements, for example.

3. Heyes (2016) and Heyes (2003). Also see Jeffreys and Gottschalk (2013).

4. Mindful of the difference, due to spatial limitations, I will use these terms interchangeably. For an assessment on this, see Pap (2015).

5. See, for example, Hobbs (2014), Chanbonpin (2015), Hunter (2011), Ignatiev and Garvey (1996), Ignatiev (1995), Kelly and Nagel (2002), Kennedy (2003), and Overall (2004).

6. Also see Sharfstein (2007).

7. The highly publicized 2015 case concerned 37-year-old Rachel Dolezal, American civil rights activist and former African studies instructor, and president of the National Association for the Advancement of Colored People chapter in Spokane, Washington, when she resigned following allegations of having committed cultural appropriation and fraud, after her white parents stated publicly that Dolezal is a white woman passing as black. Dolezal claimed that her racial identity is genuine, albeit not based on biology or ancestry, as she was born white. See, for example, Brubaker (2016a).

8. For example, in its Recommendation 1735 issued in 2006, the Council of Europe explicitly declared that “to date there was no common European legal definition of the concept of ‘nation.’”

9. Another question arises concerning whether one can choose group type/status for legal classification. For a discussion on whether “albino” is race, ethnicity, color, or medical condition, see Aceves (2015). Also see Lingaas (2016).

10. US 1/8 policy for recognition of Native American status.

11. Ivan Kitok v. Sweden, Communication No. 197/1985, CPR/C/33/D/197/1985 (1988). Ivan Kitok, a Saami and a descendent of a family with a long tradition of reindeer herding, due to financial difficulties was forced to give up herding and seek other employment. Having moved out of the Saami village, he lost his Saami status under the Swedish Reindeer Husbandry Act, which authorizes the Saami community (living in the designated villages) to establish requirements for recognized membership in the community and to make decisions on (re)admitting members to the community. He applied to the Human Rights Committee seeking to have the 1971 law declared in violation of the rights defined in the International Covenant for Civic and Political Rights for participating in his culture (reindeer herding). The committee denied his claim because the ultimate objective of the law was seen to protect and preserve the Saami as a whole.

12. Lovelace v. Canada (Communication No. R/6/24/ para 14 Supp. (No. 40) at 166, UN Doc. A/36/40 (1981)) Sandra Lovelace was born and registered, under Canadian law, as a Maliseet Indian, and was therefore entitled as an indigenous person to live on a designated reserve and to enjoy subsidized social benefits. However, under the Indian Act, after marrying a non-indigenous man, she lost her official status as an Indian and the attendant benefits, including the right to live on the reserve. According to the law, following a marriage with a non-indigenous person, only men could retain Indian status. The HRC held that Canadian law violated Article 27 of the ICCPR by denying Lovelace's right to enjoy her culture in community with other members thereof, because her culture did not exist beyond the bounds of the reserve on which she was denied a legal right to reside. It also found that the section of the Indian Act in question was not reasonable or required “to preserve the identity of the tribe.” The HRC came to a different conclusion than in the Kitok case, mostly because here gender, a protected characteristic, was involved.

13. Santa Clara Pueblo v. Martinez, 436 US 49, 72 n.32 (1978).

14. Examples can be found in several European states, from Hungary to Lithuania. See, for example, Report on the Preferential Treatment of National Minorities by their Kin-State, adopted by the Venice Commission at its 48th Plenary Meeting (Venice, 19–20 October 2001), CDL-INF(2001)019.

15. For example, as determined by a 1790 Act of Congress, citizenship was reserved for “white persons” only. Litigating race-based naturalization refusals, which question the authorities’ classifications of the petitioners as “not white,” was the first movement toward the juridical grasping of the minority concept. In the subsequent years until 1952, when racial restrictions were removed, 52 such prerequisite cases were recorded. See, for example, López (1996). Also see Domínguez (1986), Walker (2008), Kennedy (2003), Wright (1995), Onwuachi-Willig (2007), and Ford (1994).

16. See, for example, Harris (1993), Harris and Sim (2002), and Heyes (2006).

17. Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96-4-T, T.Ch. I, September 2, 1998.

18. Paras 521–523.

19. Paras 720–721, see Ambrus (2012, 943).

20. (Prosecutor v. Sylvestre Gacumbtsi, Judgement, Case No. ICTR-2001-64-T, T.Ch. III, June 17, 2004, paras 254–255); see also Ambrus (2012, 944).

21. Prosecutor v. Mikaeli Muhimana, Judgement and Sentence, Case No. ICTR-95-1B-T, T.Ch. III, April 28, 2005.

22. Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98-34-T, T.Ch., March 31, 2003, para 636; see also Ambrus (2012, 948).

23. Prosecutor v. Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlado Radić, and Zoran Žigić, Judgement, Case No. IT-98-30/1-T, T.Ch., November 2, 2001, later confirmed in the Naletilić and Martinović cases (Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98-34-T, T.Ch., March 31, 2003, para 636.). For a recent adoption of this view in the case law, see Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Separate and Partly Dissenting Opinion of Judge Anita Ušacka, ICC-02/05–01/09, P.T.Ch. I, March 4, 2009, para 23. See Ambrus (2012, 944, 946–947). Also see Young (2010).

24. See Ambrus (2012). Also see Hoffmann (2014) on the ICTY case law whether members of a victim group – Bosnian Serbs – can be regarded as protected persons even though they formally had Bosnian nationality, the nationality of the aggressors, just like their Bosnian Muslim and Bosnian Croat captors, where the court referred to the distinction between ethnicity as a ground for national allegiance as opposed to a mere legal link between the individual and the state and determining that in cases of inter-ethnic conflicts ethnic allegiance should prevail over formal nationality, at least to the extent of the application of international humanitarian law.

25. See, for example, Sternberg (2012).

26. See, for example, Zagor (2014).

27. Besides the Rachel Dolezal case, consider US Senator Elizabeth Warren “box-checking” as Native American, or the plaintiff of a seminal US Supreme Court case on the internment of Japanese Americans during World War II, Fred Korematsu, passing as Clyde Sarah. See, for example, Yang (2006), Pember (2007), and Garance (2012).

28. See, for example, Clarke (2015).

29. See Rogers Brubaker (2016a). Also see Bowker and Star (1999).

30. See, for example, Jenkins (2014).

31. See the International Court of Justice's seminal Nottebohm decision, requiring an effective link between the national and his or her home country. The 1955 International Court of Justice case concerned a dispute between Liechtenstein and Guatemala. Friedrich Nottebohm, a German national, moved to Guatemala in 1905, starting a successful business. In 1939, he applied for naturalization in Liechtenstein but continued his business in Guatemala. In 1943, following Guatemala's entry into World War II, his possessions were confiscated and he was extradited to the USA as an enemy alien, as Guatemalan authorities did not recognize his naturalization as “effective” and regarded him as still German.

32. See, for example, Spiro (2014).

33. See, for example, Molnár and Schaft (2003) and Ram (2014).

34. An interview with Antal Heizler, president of the Office for National and Ethnic Minorities, Népszabadság, July 24, 2002.

35. See Carstocea (2011).

36. See Rotunda (1993).

37. See Rotunda (1993). Also see Ford (1994), Wright (1995), and Pember (2007).

38. 966 F.2d 503, 59 Fair Empl. Prac. Cas. (BNA) 63, 59 Empl. Prac. Dec. P 41, 531 John P. O’'SHEA, San Francisco firefighter; Matthew Plescia; Daniel A. Sullivan; James R. Hentz; Ronald J. Van Pool; Michael C. Papera; Patrick M. Skain, plaintiffs-appellants, v. City of San Francisco; San Francisco Fire Department; San Francisco Civil Service Commission; Art Agnos, mayor of the City and County of San Francisco, defendants-appellees, and San Francisco Black Firefighters Association; Chinese for Affirmative Action, defendants-intervenors. No. 91-15120.

39. Daniel Seligman – Patty de Llosa: Fortune, January 14, 1991.

40. 497 US 547 (1990)

41. As Kennedy (2003) argues, “The Court fails to address the difficulties, both practical and constitutional, with the task of defining members of racial groups that its decision will require.” The Commission, for example, has found it necessary to trace an applicant's family history to 1492 to conclude that the applicant was ‘Hispanic’ for purposes of a minority tax certificate policy. See Storer Broadcasting Co. (87 F.C.C.2d 190 (1981). He continues that “the very attempt to define with precision a beneficiary's qualifying racial characteristics is repugnant to our constitutional ideals.” See footnote 1 in the Metro opinion. US v. Storer Broadcasting Co., 351 US 192 (1956).

42. Rotunda (1993).

43. See Rich (2014).

44. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

45. General Policy Recommendation No. 1, CRI (96) 43 rev.

46. COM(2006) 643 of 30 October 2006. See also the European Parliament's report in September of the same year on the transposition of the Racial Equality Directive.

47. Racial Equality Directive 2000/43/EC; Employment Equality Framework Directive 2000/78/EC.

48. Preamble to Council Directive 2000/43/EC of June 29, 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin:

The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence. (15)

Preamble to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation:

The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence.

49. In the Rights of Minorities in Upper Silesia (Minority Schools), the Permanent Court of Justice accepted that requiring a declaration on behalf of a minority pupil on his origin or mother tongue as a precondition for admittance to a minority language school does not violate equal treatment (Permanent Court of International Justice, Judgment, Rights of Minorities in Upper Silesia (Minority Schools), Ser. A. No. 15, 30–33). Consequently, members of the group should give evidence of their subjective view on their identity, if they would like to enjoy minority protection. The 1928 case concerned the 1922 German–Polish Convention relating to Upper Silesia of May 1922, which established

the unfettered liberty of an individual to declare according to his own conscience and on his own personal responsibility that he himself does or does not belong to a racial, linguistic or religious minority … subject to no verification, dispute, pressure, or hindrance in any form whatsoever by the authorities.

The court held that the

question whether a person does or does not belong to a racial, linguistic, or religious minority may not be verified or disputed by the authorities … It should be observed that the article does not state in specific terms … such declaration must be a declaration of intention alone and not a declaration determining what such person considers to be the de facto situation in the particular case … If the authorities wish to verify or dispute the substance of a declaration by a person, it is very unlikely that in such cases they would be able to reach a result more nearly corresponding to the actual state of facts … It must be admitted that the prohibition of any verification or dispute on the part of the authorities may lead to certain persons who, in fact, do not belong to a minority, having to be treated as though they belonged thereto. That, in the opinion of the court, is a consequence which the contracting parties accepted in order to avoid the much greater disadvantages which would arise from verification or dispute by the authorities.

50. Adopted by General Assembly resolution 47/135 of 18 December 1992.

51. CSCE (1990, paras 32−33).

52. This is also set forth in The Language Rights of Persons Belonging to National Minorities under the Framework Convention, Thematic Commentary no. 3, adopted by the Advisory Committee on 24 May 2012.

53. Language Rights of Persons Belonging to National Minorities under the Framework Convention, Thematic Commentary no. 3.

54. The positive dimension of the free choice of identity also includes a set of obligations on behalf of the state, say, registering names in minority languages.

55. In 2011, the law was replaced by Act CLXXIX of 2011 on the Rights of Minorities, which substantially modified the language. The preamble now merely states that “every citizen belonging to a nationality has the right to freely declare and preserve their identity” and all Article 11 adds is that “Declaring affiliation with a nationality is the individual's exclusive and inalienable right. (2) No one may be obliged to make a declaration on the issue of affiliation … ” Under a 2013 amendment to the Hungarian constitution, Article XXIX(3) of the Fundamental Law sets forth the following:

(3) A cardinal Act shall determine the detailed rules relating to the rights of nationalities living in Hungary, the nationalities, the requirements for recognition as a nationality, and the rules relating to the election of their local and national self-governments. By virtue of such cardinal Act, recognition as a nationality may be subject to national status of a specific period and to the initiative of a specific number of individuals who declare to be members of such nationality.

56. FCPNM 3, paras 34−36, Article 3.

57. App. No. 27138/04.

58. S. and Marper v. the United Kingdom (2008).

59. It needs to be added that at the same time, the watchdog of the International Covenant on the Elimination of All Forms of Racial Discrimination, the Committee on the Elimination of Racial Discrimination, in its General Recommendation VIII underlines that “such identification shall, if no justification exists to the contrary, be based on the self-identification by the individual concerned” (Committee on the Elimination of Racial Discrimination, General Recommendation No. 08: Identification with a particular racial or ethnic group [Article1, paras1 and 4] 22 August 1990).

60. In 1991, the Report of the CSCE Meeting of Experts on National Minorities adds that “not all ethnic, cultural, linguistic, or religious differences necessarily lead to the creation of national minorities.”

61. UN Principles and Recommendations for Population and Housing Censuses, ST/ESA/STAT/SER.M/67/Rev.2.

62. Explicitly reiterated in, for example, the above cited 2012 Ljubljana Guidelines, part II, para 6 of the 1990 Copenhagen Concluding Document, or Article 8(1) of the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

Additional information

Funding

The project is financed from the SASPRO Programme. The research leading to these results has received funding from the People Programme (Marie Curie Actions) European Union's Seventh Framework Programme under REA grant agreement No. 609427. Research has been further co-funded by the Slovak Academy of Sciences.