National Cultural Autonomy and International Minority Rights Norms

Abstract

Debates about the treatment of ethnocultural minorities are a familiar feature of the domestic political life of many countries in Central and Eastern Europe. But these debates are not solely domestic. The international community plays an increasingly important role in shaping these debates, endorsing some models of the accommodation of ethnocultural diversity while discouraging others. The long-term prospects for national-cultural autonomy (NCA), therefore, may depend on whether it is endorsed by influential international organizations, either as a “best practice” or “minimum standard”. This article examines the attitudes of European organizations towards NCA. While NCA has not played an important role to date in the thinking of these organizations, some important actors have called for more systematic study of its potential benefits and risks. Whether European organizations adopt norms and standards promoting NCA will depend on the prior question of which minorities are seen as the intended beneficiaries of these norms and standards, and this in turn depends on unresolved questions about the underlying motivations and goals for formulating international minority rights norms in the first place.

Notes

1. For a more detailed discussion of why this change occurred in 1990 see Kymlicka (2007, Chapter 2).

2. In Russia, for example, while the law on NCA is supposed to offer minorities some form of autonomy above and beyond normal freedom of association, it turns out, on inspection, to at best simply reproduce standard rights of free association or, indeed, to actually limit those rights (see Bowring 2007). In Estonia, the obstacles to establishing NCAs are so great and the benefits so meagre that no minority availed itself of this legal right until 2007, when the small (and now largely expatriate) Swedish-speaking community implemented the law (for an earlier discussion of the law see Smith (2001)). The Hungarian model of NCA looks better on paper, but it is widely assumed that this was adopted solely for foreign policy purposes and not as a response to the actual needs and aspirations of ethnic minorities within Hungary (for an evaluation see Dobos (2007)).

3. Human Rights Committee, General Comment No. 23, Rights of Minorities (Article 27), adopted 8 April 1994, paragraphs 5.1 and 5.2.

4. For an overview of the original context within which ideas of NCA were developed see Nimni (2005).

5. For this interpretation of New World immigrant multiculturalism as accommodation within common institutions and how it differs from the institutional separateness sought by old minorities see Kymlicka (2001, Chapter 4).

6. In recent years, the Human Rights Committee has interpreted Article 27 to require potentially certain positive measures, particularly in relation to indigenous peoples. But these modest expansions in the scope of Article 27 do not address the positive claims underlying the conflicts in post-communist Europe.

7. For a more detailed discussion of the group-differentiated character of minority rights in Western democracies see Kymlicka (2007, Chapters 3–5).

8. These limitations are often listed in the reservations that countries have filed when ratifying the convention (see http://www.coe.int/T/E/human_rights/minorities/).

9. For a detailed discussion of these standards and their ultimate demise see Caplan (2005). (The guidelines were rendered obsolete when Germany unilaterally recognized Croatia and Slovenia before the standards were met.)

10. For the draft resolution submitted to the General Assembly, see UN A/C.3/48/L.17. The draft convention itself is reprinted as an appendix in Danspeckgruber (2002, pp. 382–393), together with legal commentaries. See also the discussion in Welhengama (1998). The draft received little support and was not adopted by the General Assembly,

11. For a more detailed discussion of these difficulties and how they eroded support for TA within European organizations see Kymlicka (2007, Chapter 6).

12. See, for example, the Parliamentary Assembly's Recommendation 1609 (2003) on “Positive Experiences of autonomous regions as a source of inspiration for conflict resolution in Europe” or the Congress of Local and Regional Authorities of Europe's Recommendation 43 (1998) on “Territorial Autonomy and National Minorities”. These are attempts to try to maintain international support for the model of TA at least as a long-term goal for national minorities and to ensure that international support for non-territorial models of cultural autonomy does not eclipse or delegitimize TA.

13. For a more detailed discussion of what this means in practice see Keating (2001) and Kymlicka (2001).

14. This strategy is not only unrealistic, it is also unfair. There is no way to avoid drawing political boundaries in such a way that some national groups form a local majority and thereby enjoy de facto TA. Renner, for example, took it for granted that there should be German-majority and Hungarian-majority territorial units within the Habsburg empire, although he opposed the creation of Czech-majority or Romanian-majority territorial units. He offered no principled justification for this distinction in treatment and no principled basis for deciding how interstate or intrastate boundaries should be drawn. Similar problems afflict contemporary defenders of NCA. See Kymlicka (2005), Baubock (2004).

15. For a good overview of the committee's opinions on how countries should understand the category of national minorities see Wheatley (2005, pp. 48–56). On the question of whether citizenship is a precondition for recognition as a national minority see Thiele (2005). For the Danish case, see Opinion on Denmark ACFC/INF/OPI(2001)005, paragraph 16.

16. As Wheatley (2005) put it, the committee has “rejected the idea that there can be a strict taxonomy of the ethno-cultural groups recognized in international legal instruments” (p. 49).

17. For a more detailed discussion of the relevance of NCA for these two groups see Klímová-Alexander (2005, 2007) and Goodwin (2004).