The Interrelation Between the Right to Identity of Minorities and Their Socio-Economic Participation Studies in International Minority and Group Rights

The Interrelation between the Right to Identity of Minorities and Their Socio-Economic Participation Studies in International Minority and Group Rights

Series Editors Gudmundur Alfredsson Kristin Henrard

Advisory Board Han Entzinger, Professor of Migration and Integration Studies (Sociology), Erasmus University Rotterdam, the Netherlands; Baladas Ghoshal, Jawaharlal Nehru University (Peace and Conflict Studies, South and Southeast Asian Studies), New Delhi, India; Michelo Hansungule, Professor of Human Rights Law, University of Pretoria, South Africa; Baogang He, Professor in International Studies (Politics and International Studies), Deakin University, Australia; Joost Herman, Director Network on Humanitarian Assistance the Netherlands, the Netherlands; Will Kymlicka, Professor of Political Philosophy, Queen’s University, Kingston, Canada; Ranabir Samaddar, Director, Mahanirban Calcutta Research Group Kolkata, India; Prakash Shah, Senior Lecturer in Law (Legal Pluralism), Queen Mary, University of London, the United Kingdom; Tove Skutnabb-Kangas, Guest Researcher at the Department of Languages and Culture, University of Roskilde, Denmark; Siep Stuurman, Professor of History, Erasmus University Rotterdam, the Netherlands; Stefan Wolff, Professor in Security Studies, University of Birmingham, the United Kingdom.

VOLUME 6

The titles published in this series are listed at brill.com/imgr The Interrelation between the Right to Identity of Minorities and Their Socio-Economic Participation

Edited by Kristin Henrard

LEIDEN • BOSTON 2013 Library of Congress Cataloging-in-Publication Data

The interrelation between the right to identity of minorities and their socio-economic participation / edited by Kristin Henrard. p. cm. -- (Studies in international minority and group rights ; v. 6) Includes bibliographical references and index. ISBN 978-90-04-24432-0 (hardback : alk. paper) -- ISBN 978-90-04-24474-0 (e-book) 1. Minorities-- Legal status, laws, etc. 2. Religious minorities--Legal status, laws, etc. 3. Minorities--Civil rights. 4. Minorities--Social aspects. 5. Minorities--Economic aspects. I. Henrard, Kristin. K3242.I59 2013 305--dc23 2012039377

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This book is printed on acid-free paper. CONTENTS

Introduction ��1 Kristin Henrard

PART I

MINORITIES, IDENTITY, EDUCATION, AND INTEGRATION

Minorities, Identity, Socio-Economic Participation and Integration: About Interrelations and Synergies �� 21 Kristin Henrard

Calibrating Cultural Lenses: Socio-Economic Participation, Identity and Migration Policy Shifts �� 73 José-María Arraiza

Between Identity Transmission and Equal Opportunities: The Multiple Dimensions of Minorities’ Right to Education �� 91 Julie Ringelheim

Overruling Murphy’s Law on the Free Choice of Identity and the Racial-Ethnic-National Terminology-Triad: Notes on How the Legal and Political Conceptualization of Minority Communities and Membership Boundaries is Induced by the Groups’ Claims. ��115 András L. Pap

PART II

LINGUISTIC MINORITIES, SOCIO-ECONOMIC PARTICIPATION AND IDENTITY

MLE as an Economic Equaliser in India and Nepal: Mother Tongue Based Multilingual Education Fights Poverty through Capability Development and Identity Support ��159 Ajit Mohanty and Tove Skutnabb-Kangas vi contents

English as Pandemic? ��189 Robert Phillipson

The Uneasy Relationship Between Language Issues and Socio-Economic Participation: Linguistically Sensitive Approaches to Participation ��205 Robert Dunbar

PART III

RELIGIOUS MINORITIES, SOCIO-ECONOMIC PARTICIPATION AND IDENTITY

A Critical Appraisal of the Margin of Appreciation Left to States Pertaining to “Church–State Relations” under the Jurisprudence of the European Court of Human Rights ��229 Kristin Henrard

Participation of Muslim Minorities in the Spanish Mainstream Society ��261 Eugenia Relaño Pastor

A Surviving Treaty: The Lausanne Minority Protection in Greece and Turkey ��287 Konstantinos Tsitselikis

PART IV

INDIGENOUS PEOPLES, SOCIO-ECONOMIC PARTICIPATION AND IDENTITY

Discrimination, Indigenous and Tribal Peoples, and Social Indicators ��317 Lee Swepston

Marginality, Disempowerment and Contested Discourses on Indigenousness in Africa ��333 Felix Mukwiza Ndahinda contents vii

Engaging the Leviathan: National Development, Corporate Globalisation and the Endorois’ Quest to Recover Their Herding Grounds ��373 Korir Sing’Oei

Notes on the Implementation by Latin American Courts of the ILO Convention 169 on Indigenous Peoples ��403 Christian Courtis

Index ��433

INTRODUCTION

Kristin Henrard*

This edited volume emanates from a conference which brought together for the first time several members of the Minority Research Network, and which constituted the launch of this network. The distinctive goal of this Research Network is that it sets out to bring together researchers who work on minorities from a variety of different disciplines as well as from a variety of geographical backgrounds.1 The idea of bringing these researchers together is based on the premise that any adequate strategy for promoting the rights of minorities must start with taking on board insights and understandings of a range of relevant disciplines, including law, political science, international relations, sociology, anthropology, religious studies, linguistics, educational theory, and migration studies, so that issues of equality, identity, (accommodation of) diversity, integration, and prevention of genocide/ethnic conflict can be addressed. Furthermore, while considerable attention for minority questions has developed in Europe, there are also minorities in the other regions of the world, with their own specific problems and needs, requiring appropriate treatment. The experiences in these different parts of the world are influenced by their particular circumstances, but could also be very interesting, informa- tive, challenging to the thoughts, convictions and related policies on minorities and minority protection elsewhere (including in Europe). Ultimately, the goal of the Minority Research Network is to pool relevant knowledge and expertise, and stimulate an interdisciplinary approach so as to enable experts with different backgrounds to work together in new and innovative ways. While it remains a challenge to find proper formats to stimulate joint projects among the numerous members of the Network, spread out over the world as they are, the Network enables members at least to identify colleagues from other disciplines and/or other countries/ continents. The goal of this particular conference was actually double: in addition to providing a kick start to the Minority Research Network, it also set out

* Prof. dr. Kristin Henrard, Professor Minority Protection, Erasmus University Rotterdam. 1 For further information, see [www.esl.eur.nl/minorityresearchnetwork]. 2 kristin henrard to unravel various dimensions of a particular topical question pertaining to minorities and minority protection, which has not been explored yet, more particularly the socio-economic participation of minorities in relation to their right to (respect for) identity. A brief clarification is immediately in order about the meaning of the concept ‘minority’. This concept is not extensively discussed in this volume, but Henrard’s article takes up the approach also advocated in the Minority Research Network not to exclude migrant groups. Some of the case studies included in this book might be focused on traditional (autochtonous) minorities or even indigenous peoples, Arraiza’s and Ringelheim’s articles clearly (also) pertain to migrants. Everybody is aware of the severe problems in terms of actual access to and enjoyment of (even very basic) social and economic rights by persons belonging to minorities. At the same time, there is ample awareness about hypes concerning prohibitions to wear the veil at school, and persons being fired because of unauthorized absences due to religious observances. Similarly, mismatches in linguistic proficiencies can lead to flawed access to employment, social services and public administration. When these problems are identified they are mostly seen as an interference with the minorities’ right to identity. However, there is an equally important reduction in the enjoyment of socio-economic rights of the persons concerned, in terms of hindrance in de facto access to education (for religious and or linguistic reasons), access to employment (inflexible working schedules make it impossible for you to get a job because you are a devout believer), access to social services etc. This conference sought to unravel a variety of the multiple aspects and dimensions of the way in which and the extent to which regulations that at first sight hinder (or promote) the right to identity of minorities, have repercussions for their de facto socio-economic participation and vice versa. Indeed, for various minorities particular economic activities are actually closely bound up with their own, separate identity, so that regulations that interfere with these economic activities, also have repercussions for their right to identity. At the same time, it is impossible to cover in the scope of one edited volume the full range of possible interactions between the right to identity of minorities and their socio-economic participation. This is partly related to the tremendous variety of (kinds of) minorities that can be identified. Indeed, among the linguistic, religious, and ethnic minorities further distinctions can be made in terms of geographical concentration, numbers involved, traditional presence versus migrant origin and so on. introduction 3

This impossibility of comprehensive coverage is furthermore due to the multiplicity of issues/facets captured by the concept ‘socio-economic participation’. Indeed, socio-economic participation does not only cover questions of real and effective access to education, but also to employment, to housing, to social security and social advantages, and the like. When combining and cross-referencing these two sets of variables, one ends up with an unimaginable number of ‘situations’ that need to be analysed. Hence, the goal of this edited volume was never to be comprehensive in coverage but (still) to offer a range of articles that reveal the breadth of the theme under review, while combining theoretical analysis and considerations with fascinating case studies. Furthermore, and in line with the overarching goals of the Minority Research Network, the authors who have participated in this edited volume span a broad range of different disciplines and originate from various corners of the world. This makes it possible to discuss the question of the interrelation and interaction between the right to identity of minorities and their socio-economic participation from a multidisciplinary perspective, while drawing on a rich variety of case studies. In other words, at first sight this edited volume may seem to hold a rather eclectic collection of articles, all of them nevertheless concern the theme captured in the title of this volume about the relation-interrelation between the right to identity of minorities and their socio-economic participation. Ultimately the choice was made to structure the edited volume in four parts: one with articles of a predominant theoretical nature and three which focus each time on a different minority marker, the various articles in each category covering different dimensions of the interrelation between minorities’ identity and socio-economic matters (often including case studies). The first part consists of articles that are meant to locate the theme of the volume in a more theoretical frame concerning the meaning of the concept identity, the respective relevance of general versus minority specific rights, and on the importance of the multiple ways in which education is essential for both the right to identity and minorities’ socio-economic participation. Another theme that is addressed in this first part concerns the interrelation between integration on the one hand and the core theme of this edited volume on the other. It would indeed be strange, in the middle of a lot of often heated debates about integration, its importance and related challenges, to disregard this interrelation. The three remaining parts are surely not devoid of theoretical considerations and theory building but they mostly demonstrate how this 4 kristin henrard interrelation and mutual influence between identity and socio-economic participation plays out for particular identity markers, cq particular types of minorities (in particular countries/continents): language/linguistic minorities, religion/religious minorities and indigenous peoples. The part focusing on language and linguistic minorities contains three articles, two of which have extensive case studies of a particular theme in particular countries (India/Nepal and Scotland) in addition to the theoretical arguments, and the third focuses on a particular theoretical position (about the hegemony of English and the negative implications of this position for that of minority languages) giving numerous examples to back up his point. The third part, on religion and religious minorities, also includes two articles with case studies of particular countries (Turkey/Greece, Spain), which are preceded by an article that discusses a particular line of jurisprudence of the European Court of Human Rights and its negative implications for religious minorities, also providing a range of examples. Finally, the four articles in the fourth part are focused on indigenous peoples. One article addresses a topic which is of relevance to indigenous peoples everywhere, namely discrimination and social indicators. The remaining three zoom in on a particular continent, two on Africa, and one on Latin America. Part One starts with an article by Henrard2 providing a broad overview from an angle which seems at first sight different than the one of the edited volume, namely the striking congruence between minority specific rights and general human rights regarding minorities and their socio- economic participation. It is indeed striking that minority specific rights may be primarily related to rights focused on identity matters, the related supervisory practice reveals an increasing attention for socio-economic matters. At the same time, the supervisory practice in terms of general fundamental rights, and especially socio-economic rights, are increasingly attentive to the minority reality/dimension and the related special needs. Still, it is possible to see the development traced in Henrard’s article as exposing the congruence of ‘identity’ themes and socio-economic participation (and thus the edited volume theme). Furthermore, the article shows how the integration theme is actually intrinsically related to

2 The article by Henrard is based on data analysed in an article published in IJMGR in 2004: The AC’s vision of integration is clearly integration without forced assimilation, where minorities can maintain their separate identity, and where states have certain positive obligations in that respect.1 The article here is not merely an updated version of the 2004 article, but is also considerably restructured and has added the integration angle. introduction 5 socio-economic participation and also often critically debated regarding minorities. Indeed, the discussion about the relationship between identity/culture on the one hand and socio-economic participation on the other is related to one of the key debates within integration literature (focusing on migrant groups), namely: does full integration presuppose giving up one’s separate identity or – to the contrary – should identity retention be respected and promoted. In the second article Jose Arraiza takes up this integration discussion from a socio-political perspective while focusing on new minorities or migrants. He develops throughout his contribution an argumentation about the linkage between socio-economic participation and cultural accommodation policies, as related to the socio-economic and cultural dimensions of group formation. He problematizes the move in various European countries to transform their integration policies in a way which puts the main burden on the migrant who needs to adapt, as this would come close to policies aimed at forced assimilation. In this respect he urges to separate exclusionary and ethnocentric ideas from legitimate aims at socio-economic, cultural and civic integration of migrants. Julie Ringelheim’s article on the multiple dimensions of the minorities’ right to education proceeds from the generally recognized double role of education, namely qualification and passing knowledge on the one hand, and identification which refers to the transmission of language, culture and values on the other. The right to education in its qualification dimensions is as such an important socio-economic right, which has several repercussions for access to employment and thus also knock-on effects pertaining to access to social security, health care etc. In other words education matters for socio-economic participation writ large, and more particularly for ‘equal opportunities’ in this respect. The dimension of education which pertains to the passing on of values, languages and culture, and thus identity transmission to the next generation, is obviously essential for minorities and the maintenance of their own, separate identity. Education clearly plays a key role in the discussion of minorities’ right to identity and its interrelation to socio-economic participation. In the end it is about promoting equal access to education while attending to minorities’ special needs, whether cultural or socio-economic needs. It is increasingly accepted that the right to equal treatment does not refer to formal equality, but rather to real or substantive equality; and similarly in terms of education that minorities are entitled to education which is in some respects tailored to their separate identity. Nevertheless, Ringelheim nicely demonstrates that the supervisory practice of the European Court 6 kristin henrard of Human Rights as well as of several UN treaty bodies actually promotes integrated over separate education. At the same time this practice clarifies that integrated education should go hand in hand with a particular kind of curriculum, content and modalities of education, captured in the term ‘intercultural education’. This would promote intergroup contact and mutual understanding, and thus also social cohesion. This also implies that teaching of or in the minority language and teaching of the minority religion ideally should take place within the public school system. The goal of integrated education also strongly opposes practices to provide Roma with segregated education: any separate education should be reduced to a minimum and be temporary, while being geared towards tackling their special needs. Two concerns seem to fuse here: ensuring that all children receive an education of the same quality and countering isolation of minorities in the educational sphere, because this would further compromise their integration in society. In the fourth and last of the more theoretical and foundational articles András L. Pap actually addresses a preliminary but no less important question, namely that of identification and the free choice of identity for persons that belong to minorities. He is critical about a free choice of identity because this would not be theoretically coherent, nor practically sustainable. It would lead to inherent inefficiencies in rights protection, inter alia because it might lead to abuse: persons that do not belong to minorities want to draw on the special rights (including positive action) for minorities. Hence he puts forward relevant factors to identify minorities, and distinguishes types of minorities. He chooses to distance himself from the classical distinction between race, ethnicity and nationality as this would only lead to vague descriptions. Instead, he suggests to distinguish minorities based on a more complex set of criteria, at least including the origin of the group, the basis for group formation and the aspirations/needs and demands of the group. Concerning the equality claims that are made by minorities, he underscores that self-identification is irrelevant concerning the protection against discrimination (as the external perspective is decisive here); while self-identification has no role to play when claims for preferential treatment are made, because (surely then) objective criteria need to be met. In the end he calls for minority policies and rights that are each time tailored to the needs of the particular group concerned. While identity and socio-economic themes interrelate in several respects, tailored minority rights systems imply that sometimes the focus will be more on socio-economic equality, other times more on identity-matters, like de facto freedom of religion or cultural accommodation and so on. introduction 7

Part Two of this edited volume focuses on languages, language rights and minorities’ socio-economic participation. Language is indeed an important minority marker: language is not only an essential element of identity (of minorities), it is also a gate to the culture associated with the language. In this respect it is generally accepted that promotion of linguistic diversity has important repercussions for cultural diversity more generally,3 hence, there is a lot to be said for protecting and promoting linguistic diversity.4 At the same time language rights is an area where lawyers and social scientists find each other. This second category of articles surely includes some of the most prominent authors in the field of language and language rights, ranging from an expert in language rights (Robert Dunbar), to a social linguist (Tove Skutnabb-Kangas), a psycholin- guist (Ajit Mohanty) and an educational theorist (Robert Phillipson) who all three have ample experience with venturing on the path of fundamental rights. When thinking about the possible interactions between language, language rights and socio- economic participation, a range of topics come to mind: education and language in education (including mother tongue education and having the possibility at all to learn one’s language), language requirements for access to employment as well as by way of working condition (like an obligation to use one particular language at all times when at work), language in which social and health services are provided and so on. Minorities’ concerns for an effective protection against invidious discrimination on the basis of language, is intermeshed with minorities’ claim for differential treatment or special measures aimed at substantive or real equality. Indeed, it is obvious that the language in which services are provided determines the effectiveness (or not) of access to these services. Using only one particular language, the dominant language, disproportionately affects linguistic minorities in that their effective access to the services concerned is hampered. This would amount to a situation of indirect discrimination on the basis of language in so far as this disproportionate negative impact on minorities would not have a reasonable and objective justification. At the same time, such

3 There is even research pointing towards a link between linguistic diversity and biodiversity: see inter alia Tove Skutnabb Kangas, Sharing a World of Difference. The Earth’s Linguistic, Cultural, and Biological Diversity (with Luisa Maffi and David Harmon, 2003). 4 There are even authors who argue that when states fail to protect and promote linguistic diversity, they actually engage in linguistic genocide: inter alia Tove Skutnabb Kangas, Linguistic Genocide in Education - or Worldwide Diversity and Human Rights? (2000). 8 kristin henrard disproportionate impact would point to the need to adopt special measures, in the sense of providing services in the minority languages, always subject to reasonability considerations. Furthermore, whether or not one has education in one’s mother tongue has an incredible impact on the extent to which one can grasp the substance taught and hence determines how well one does in school. This in turn co-determines the qualifications one is able to obtain through education, and thus also the access one has to the better paid jobs. Again, providing education only in the dominant language, is bound to have a disproportionate negative impact on minority pupils which can amount to indirect discrimination on the basis of language. In order to counter this indirect discrimination states need to adopt special measures aimed at introducing a reasonable level of education in the minority languages. Skutnabb Kangas and Mohanty make a strong case for mother tongue education as economic equalizer, by combining theoretical arguments with convincing data from their two case studies, India and Nepal. They argue that education in the minority language (MLE) is an essential precondition for capability building, concerning both cognitive and intellectual functions. Indeed submersion education, implying education through the medium of the dominant language, results in so-called capability deprivation, which goes hand in hand with identity deprivation. In this way lack of MLE leads to poverty: when one is not taught through the appropriate medium of instruction (mother tongue), one does not have equal access to education and one cannot benefit from education. Lack of MLE also has various negative consequences socially, and psychologically, which further prevents effective access to education. The case studies of India and Nepal show the negative effects on tribal children when they do not get MLE: as they don’t understand what is being taught, they drop out at an early stage, and thus can never aspire to any of the properly paid jobs, extending the circle of poverty. In multilingual countries like India and Nepal experimental programs of mother tongue based multilingual education are promoted as they clearly lead to positive results. Phillipson’s article and argumentation also speaks to the importance of giving minority languages a place within the public curriculum but proceeds from a different starting point, namely the problems related to the dominant position of English. According to the author language dominance interlocks with a structure of imperialism in culture, education, the media, communication, the economy etc. He problematizes the way in which socio-economic imperatives related to the dominance of English introduction 9 impact on the language mosaic: this dominance implies less attention for minority and ancestral languages which ultimately will also lead to their reduction in status, and possibly even to their decline. In terms of the link with socio-economic participation, he pays a lot of attention to the educational sphere, where he problematizes that education is exclusively being offered through English, and that academics all over the world are increasingly pushed to produce (mainly/exclusively) academic publications in English. He also exposes how within the EU and its institutions English increasingly obtains a dominant status, de facto undermining the equal status of all official languages. Furthermore, the EU is reducing its funding for minority languages (projects that are meant to protect and/or promote these languages), thus reducing its efforts to counterbalance the growing dominance of English. The EU’s competences may be steadily expanding, its core business is still economic in nature (common market), while competences in the social field are growing. Phillipson lucidly exposes how the growing dominance of English as the international lingua franca par excel- lence exerts pressure to conform on speakers of other languages, and somehow reduces the (perceived) value of these languages, (again) leading to language decline and eventually language loss. In the end he warns that laissez-faire policies will run the risk of strengthening English at the expense of other languages. Hence he makes a case for active policies to foster multilingualism, which is bound to create better conditions for the minority languages and the socio-economic prospects and identity of their speakers. The last article focusing on the intersection of language, language rights and socio-economic participation of minorities picks up a less well documented theme, namely the socio-economic policies concerning the heartland of autochtonous minority languages. Robert Dunbar highlights that these heartlands are often situated in economic backward regions. This situation in turn leads to population flight, which entails creeping language shifts and thus also threatens the continued existence of the minority languages concerned. Robert Dunbar is extremely critical of the tendency for policies aimed at the economic development of the region, not to consider sufficiently their linguistic effects. For example no sufficient room is created for minority languages, not even in the own local economies. Similarly schooling is not geared towards minority languages, values or skills that would locally make sense. He coins these policies and their effects as subtractive integration. According to him various existing minority specific rights would actually point to the need to have regard for these linguistic effects of regional development policies, more particularly 10 kristin henrard article 5 of the UN Declaration and article 15 (participation in social and economic life) junctio 5 (state duties to protect the separate identity of minorities) of the Framework Convention for the Protection of National Minorities (FCNM). However, the FCNM’s Advisory Committee has so far not explicitly recognized state duties to make adapted development policies towards minority languages on the basis of the combined reading of these two articles. Nevertheless, such a line of jurisprudence would fit perfectly in the AC’s broader line of jurisprudence pertaining to duties to protect and promote the identity of minorities (under article 5). In this respect he welcomes the position of the Committee of Experts supervising compliance with the European Charter for Regional or Minority Languages, which constructs article 13 (on language use in economic affairs) as implying the need for economic development initiatives to be sensitive to sociolinguistic considerations and language policy goals. Part Three focuses on religion, religious rights and minorities’ socio- economic participation. History and related religiously based conflicts have underscored the importance of an effective freedom to manifest one’s religion, effective equality and effective protection against invidious discrimination on the basis of religion whenever various religions are represented in one and the same society. In terms of substantive equality, and measures aimed at preventing and/or remedying indirect discrimination on the basis of religion, duties of differential treatment on the basis of religion have been developed in several jurisdictions under the rubric ‘duties of reasonable accommodation’.5 Such duties of reasonable accommodation have been identified in relation to religious dress at work and in the educational sphere, adapted working times, content of the curriculum in general and education in/of religions in particular, exemptions related to ritual slaughter and/or burial rules and the like. Interestingly, these themes raise questions not only in terms of equal treatment and the prohibition of discrimination, but also in terms of the effective enjoyment of the freedom to manifest one’s religion, and thus the scope of application of the freedom of religion as well as the limitations that are considered legitimate (or not). The first article in this part identifies the core problem with the jurisprudence of the ECtHR when it evaluates complaints by religious

5 See also K. Henrard, ‘Duties of reasonable accommodation in relation to religion and the European Court of Human Rights: A closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality’, to be published in ELR 2012, 21 p. and the references there. introduction 11 minorities, also when it concerns themes under the rubric of socio- economic participation.6 The Human Rights Committee may be the supervisory body with the global reach as it supervises the UN Convention on Civil and Political Rights, it has so far virtually not dealt with complaints on religion. The ECtHR’s jurisprudence on religious rights does offer a broad selection of cases. Furthermore the jurisprudence of this regional court is well regarded internationally. Considering arguments on the basis of the fundamental principles of the human rights paradigm, basic principles of the freedom of religion as well as the prohibition of discrimination on the basis of religion, Henrard conducts a very critical analysis of the application of the Court’s margin of appreciation doctrine to the broadly defined field of church-state relations. According to the author the current use of the margin of appreciation de facto protects the status quo, and thus disadvantages religious minorities. In addition to more theoretical considerations, this article also analyses how this theory plays out in cases de facto pertaining to the workplace, access to employment, work conditions etc. In the second article of this part Eugenia Relaño Pastor provides an in depth overview and analysis of the legal framework in Spain pertaining both to religious freedom, including the freedom to manifest one’s religion, and to the inclusion and full/proper participation in socio-economic life of persons belonging to the Muslim minority. She nicely shows how the legal framework seems promising: it is inclusive towards all religions and embraces pluralism as a value, and not only provides protection against invidious discrimination on the basis of religion but also envisages substantive equality among adherents of all religions, inter alia through the identification of duties to adopt positive action. However, her analysis reveals how this promising legal framework is frustrated by two main and interrelated causes. First of all, the special ties government has with the Catholic church and the catholic religion entail an institutional lack of sensitivity to the cultural background and specific needs of the Muslim minority. This lack of protection of their separate identity hampers Muslims socio-economic participation (especially concerning effective access to employment and education). The author provides a few striking examples of this ‘frustration’: religious communities

6 This article is reprinted by permission of the Publishers from ‘A critical appraisal of the margin of appreciation left to states pertaining to ‘church-state relations’ under the jurisprudence of the European Court of Human Rights’, in A Test of Faith? eds. Katayoun Alidadi, Marie-Claire Foblets and Jogchum Vrielink (Farnham: Ashgate, 2012), pp. 59–86. Copyright © 2012. 12 kristin henrard have a range of collective rights, but since it is unclear how communities can obtain legal personality it remains difficult to register as recognized religious community (and effectively benefit from these rights). Similarly, Islam can be taught at public schools but there are extreme delays in realizing this, inter alia due to the delays in identifying teachers. The controversies surrounding the wearing of the veil at school further hamper effective access to school for devout Muslim pupils. The second reason why the promising legal framework does not de facto entail a substantive equal socio-economic participation for persons belonging to the Muslim minority are the deep seated prejudices against Muslims by the Spanish population, related to the prevailing perception that Muslims do not want to integrate and want to remain distinct from mainstream society. Kostis’ article discusses the minority protection in Greece and Turkey in relation to the legal framework imposed by the Lausanne Treaty. He aptly describes how the dissolution of the Ottoman Empire transformed the dominant Muslim groups into non-dominant groups within the new national states. Greece, Turkey and the Great Powers regulated through the Lausanne Conference the question of the collapsing Empire. In relation to the resulting minority question two strategies were adopted: one being a population exchange between Greece and Turkey so as to mini- mize Greek-Turkish minorities, the other being a regulation of the legal status of the remaining minorities. In his discussion of the latter legal status on the basis of the Lausanne treaty the author focuses on the theme of the edited volume, more particularly the normative content of the minority protection regarding minority identity and rights related to socio- economic participation attributed through religion, religion being the dominant minority criterion in the Lausanne Treaty. The author demonstrates how under the Treaty the respective minorities seem to have quite extensive powers to regulate their own affairs, and in this respect enjoy socio-economic participation, as is visible in terms of education and the vakf foundations (accumulating real property). Concerning socio-economic participation in the broader society, the Treaty guarantees that members of minorities are not being discriminated against and in this respect creates a latent right to participate in the broader society’s economic and social life. However, de facto socio- economic participation at both levels is extremely curtailed by the broader bilateral political antagonism between the two states. The fourth and final part of this edited volume focuses on indigenous peoples, their separate identity and their socio-economic participation. In Europe the Sami are generally accepted as indigenous peoples. They are introduction 13 rather active in terms of minority rights instruments, demonstrating that indigenous peoples can indeed (most of the time, depending on the numerical factor) also rely on minority specific rights. The Sami have brought several cases before the ICCPR’s Human Rights Committee and also the FCNM’s Advisory Committee has evaluated their position and rights under the latter convention. Both supervisors recognize that Sami’s traditional economic activities are a component part of their culture which is protected by their right to identity. This constitutes a significant recognition of the interrelation of the right to identity and socio-economic participation of minorities. However, the effective enjoyment of this right is dependent on the way in which the supervisor scrutinizes the legitimacy of (justification for) interferences. The Human Rights Committee’s jurisprudence has been criticized in the latter respect. Notwithstanding the global reach of the ICCPR it is striking that indigenous peoples from Latin-America,7 Africa and Asia do not turn to the Human Rights Committee. Hence it is particularly interesting to see what happens in these continents, both at national and at regional level. Three out of four articles of this part actually focus on Africa and Latin-America. Lee Swepston starts (however) with a more theoretical account on the relevance of social indicators to measure the extreme disadvantage of indigenous peoples, due to systemic discrimination. Such indicators can then subsequently guide policy makers in their quest to devise policies to remedy this. He argues that the generally applicable indicators do not allow to capture the specific and unique position of indigenous peoples in the countries where they live, and also do not embody sufficiently indigenous peoples’ conceptions of the world around them and their own specific lifestyle. He posits that having more consistent data in all relevant countries will make it more likely that common causal factors can be identified and addressed. Swepston briefly discusses the different ways in which countries that have ratified the ILO conventions on indigenous peoples identify (or not) particular population groups as such. It is rather striking that Roma are considered as indigenous people by some countries but not by others, notwithstanding the fact that they have been present in these countries for roughly the same, extensive period of time. Especially interesting in view of the central thesis of the second article in this part is Swepston’s

7 An exception that proves the rule is the case of Angela Poma Poma v Peru, Communication no 1457/2006. 14 kristin henrard statement that the descendants of African slaves may be not as indigenous as the Indian population in the Americas, but considering the fact that they live like the latter and are equally disadvantaged, it would be irratio- nal to exclude them of the qualification ‘indigenous’. This view arguably gives more weight to factors of marginalization and extreme disadvantage (in combination with a separate identity and the wish to hold on to that) than to priority in time. Subsequently, two papers address the protection of indigenous peoples in Africa, one from a general, more conceptual perspective, the other focusing on one particular decision of the African Commission on Human Rights. Felix Ndahinda highlights the growth of groups in Africa that identify themselves as indigenous, which is related to the lack of clear criteria and the focus on self-identification. These claims of ‘indigenousness’ are resisted and suitably questioned, not in the least in light of the complex socio-cultural reality in Africa. A recurring theme in this and the other chapters of this part concerns the difficulties and challenges of demarcating indigenous peoples in relation to minorities. Ndahinda starts with a discussion of the position of the hunter-gatherers and pastoralists in Africa. While the question of priority in time is more or less accepted for hunter-gatherers, this is not the case for pastoralists, since numerous studies point to various migratory waves. According to Ndahinda the fact that pastoralists still claim indigenousness status is actually in line with a noticeable shift in the kind of groups that claim indigenous status and the basis of their claim. He identifies a shift away from prior occupation towards claims that rather focuses on situational characteristics related to land claims and shared experiences of subjugation, marginality and dis- possessions. According to him claims to indigenousness by hunter-gatherers and pastoralists are primarily aimed at empowerment and fighting marginalization, related to their particular modes of production and related lifestyles, and thus the related power and control over territories and resources. In other words, the so-called battles for cultural survival are actually battles about livelihood, poverty alleviation and access to development or social services, since the most pressing needs of the claimant population groups are needs of socio-economic and political empowerment. Not surprisingly, Ndahinda identifies claims about indigenousness as just one of the many strategies used by the groups concerned, side by side with minority rights, general human rights and environmentalism. According to him, the latter strategies would actually be more appropriate to address the legitimate grievances of marginalized, dispossessed and introduction 15 victimized groups. Nevertheless, it needs to be acknowledged that also the minority rights framework is resisted in Africa, because African countries often do not have a typical majority versus a minority group, but rather concern multinational countries, consisting of several groups none of which are the majority. Korir Singoei’s article focuses on the case of the forced eviction of the Endoroi in Kenya, which was brought before the African Commission on Human and Peoples’ Rights. The Endoroi were evicted in order for their lands to be used in more lucrative economic activities, including tourism, mining and energy extraction. They were furthermore exposed to a variety of threats related to the mining industry and the pollution that entailed. Singoei’s analysis of the Commission’s decision reveals the close interaction between religious and cultural identity concerns and rights on the one hand, and economic rights like rights to land and natural resources on the other. The African Commission on Human and Peoples Rights links the right of access to ancestral lands to the right to manifest one’s religion, since this includes the right to access sacred sites. Furthermore, the right to culture is held to encompass a traditional way of life, and also cultural festivals, which in turn presuppose access to ancestral lands. In relation to the right to property the Commission similarly aims at providing effective protection: the lack of title in writing of the Endoroi does not change their status as indigenous people with a recognized claim of ownership of ancestral lands. The effective enjoyment of this property right furthermore implies that the Endoroi should actively participate in plans pertaining to their lands. Finally, the Commission also recognized the Endoroi right to natural resources, and thus their right to share in the proceeds of the ruby mining. It called on the state to consider restricting private property in order to ensure the survival of indigenous groups. Also in this regard participatory rights of the Endoroi (the need for informed consultation) are recognized. Overall the Commission urged Kenya not only to recognize the ownership of the Endoroi, but also to provide compensation, secure royalties sharing, and institutionalize dialogue (consultation mechanisms). In terms of actual impact, it can be noticed that subsequently a new constitution was promulgated which reflects in several ways the enhanced protection of the rights of indigenous peoples. Finally, Christin Courtis’ article discusses a range of emblematic cases concerning the implementation of ILO Convention no 169 that came before national courts in Latin-America as well as the Inter-American Court on Human Rights. He highlights that several Latin American 16 kristin henrard countries have not only ratified this ILO Convention, but also changed their constitution fundamentally and promulgated innovative acts of legislation. The cases that Courtis selected cover a wide range of themes that can be subdivided in four categories (all speaking to the interrelation between the right to identity and socio-economic participation), namely cases related to land and exploitation of natural resources; cases concerning the positive obligations of states to counter extreme hardship; cases on the right of indigenous groups to be consulted on matters that are likely to affect them; and cases pertaining to the relationship between state and customary or tribal criminal law.8 Notwithstanding the differences that can be gleaned from in depth comparisons between these cases, Courtis argues that a regional trend can be detected. In terms of land rights, the Latin-American courts clearly recognize that land has tremendous religious significance for indigenous peoples and is furthermore essential for their survival. These courts furthermore are willing to follow ILO Convention no 169 by recognizing collective ownership of indigenous peoples. The second category of cases reveals that the Latin American courts have indeed identified positive state obligations to counter extreme hardship of indigenous peoples. This is most evident in cases where the survival of the community itself is at risk due to lack of food, health care etc. The Inter-American Court of Human Rights has actually adopted an extensive interpretation of the right to life as implying duties to ensure conditions for a dignified life, which in turn speaks to a minimum levels of food, accommodation, health care etc. Also the Columbian Constitutional Court has pronounced a very interesting judgment (T 704/06) in which it emphasized that the effective enjoyment of economic, social and cultural rights, and of the right to cultural identity, would translate in an obligation to support indigenous communities with the resources to satisfy these socio-economic rights/needs. Thirdly, the Latin-American courts attach great weight to indigenous peoples’ right to be consulted prior that decisions are taken that affect them. In this respect it has been emphasized that when decisions are taken that involve the exploitation of natural resources, this must be harmonized with the rights of communities living in the exploited areas to conserve their identity. In order to protect the survival of the community concerned, it is considered essential that the community is consulted prior to the actual grant or the effectuation of the licenses concerned.

8 Since the latter category does not fall within the thematic scope of this edited volume, it is not taken up in this introductory article. introduction 17

Throughout this volume a selection of the multiple ways in which the right to identity of minorities and their socio-economic participation intersect and interconnect, are identified, traced and analyzed. The combination of deep theoretical enquiries and insightful case studies, also extending beyond Europe, will hopefully trigger further research on this broad and complex theme.

PART ONE

MINORITIES, IDENTITY, EDUCATION, AND INTEGRATION

MINORITIES, IDENTITY, SOCIO-ECONOMIC PARTICIPATION AND INTEGRATION: ABOUT INTERRELATIONS AND SYNERGIES

Kristin Henrard

Introduction

Traditionally the minority rights standards developed in the framework of international organizations and the related supervisory practice were more focused on political participation, and its various dimensions, than on socio-economic participation. However, questions of socio-economic participation, inclusion and integration of minorities has increasingly come to the forefront. This is understandable since it is hard to miss that minorities are often seriously disadvantaged in this respect, at times also triggering social unrest.1 There may be hardly any explicit standards on socio-economic participation for minorities, the conceptual assessment of ‘participation in social and economic life’ of (persons belonging to) minorities shows that this is intrinsically related to access to fundamental socio-economic rights, especially in combination with the right to equal treatment, and de facto concerns social inclusion and integration. This article builds on 1/ (and updates the information in) two earlier articles containing a detailed analysis of the extent to which the respective existing human rights and minority rights instruments contribute to the

1 UNIEMI, Thematic Priorities [OHCHR.org] 1. See also Human Rights Council Resolution 7/7, Mandate of the independent expert on minority issues, 3rd preambular paragraph. See also Veenman who underscores that ‘labour market participation is a manifestation of formal bonding, and as such, can contribute to a joint definition of the situation of those who take part in this bonding. … conversely, …limited participation on the labour market can threaten social cohesion. … Limited labour market participation implies a lack of reciprocity, which puts social cohesion under pressure’ (J Veenman, ‘Social Cohesion, Social Integration and Labour Market Exclusion’, European Yearbook on Minority Issues 2003/4, 275, 279–280). Cf. Jonathan Wheatley who underscores that ‘unequal access to employment, education, health and housing has … undermined political and economic stability in regions as diverse as the Balkans, Northern Ireland, South Tyrol and Cyprus’ and that ‘economic under-development and especially the economic marginalization of a particular identity group increase the likelihood of inter-ethnic conflict’: J Wheatley, ‘The Economic Dimension of Minority Participation in Europe’, ECMI Issue Brief 15 [www.ecmi .de/download/brief_15pdf] 3 and 4. 22 kristin henrard participation of minorities in social and economic life,2 and 2/ a more thematic analysis in terms of the two foundational principles of minority protection, namely of the right to identity3 and substantive equality. The latter article already underscored the importance of the interpretation of fundamental rights standards also in this respect.4 The standards and related supervisory practice that have been included in this analysis concern a selection of standards from the UN and the Council of Europe. In relation to this edited volume the question that is obviously key is the interrelation of socio-economic participation of minorities and their right to (protect and promote their separate) identity. This interrelation comes out at two levels: at a first more indirect level and at a second more direct level. Firstly, it is argued here that the synergy between general economic, social and cultural rights on the one hand and the minority specific rights on the other hand regarding the extent to which they address the socio-economic participation of minorities speaks to the interrelation of the right to identity as intrinsically captured by minority specific rights and their socio- economic participation, as captured by socio-economic rights. Indeed, on the one hand the supervisory practice concerning economic and social rights increasingly reveals a minority specific reading, including attention for their separate identity, which is not supposed to be an obstacle to full socio-economic participation (at times requiring accommodation). On the other hand, the supervisory practice of minority specific rights instruments increasingly takes socio-economic participation on board, which is felt to be essential to minorities’ integration in the wider society. Secondly, the supervisory practice of both general fundamental (social and economic) rights and minority specific rights reveals that identity questions and questions pertaining to socio-economic participation are

2 K. Henrard, ‘Minorities and Socio-economic Participation: The Two Pillars of Minority Protection Revisited?’, IJMGR 2009, 549–576. 3 See inter alia A. Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities – Document for the UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2/AC.5/1998/WP.1, 12 May 1998, 3; C. L’Heureux- Dubé, ‘Making a Difference: The Pursuit of Equality and a Compassionate Justice’, South African Journal of Human Rights (1997), 338. See also Report Secretary General UN, Protection of Minorities: Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, 14 June 1995, UN. Doc. E/CN.4/Sub.2/1995/33, 3. 4 K. Henrard, ‘Participation in Social and Economic Life’, in Marc Weller (ed.) and Katherine Nobbs (assistant ed.), Political Participation of Minorities: A Commentary on International Standards and Practice (Oxford University Press, 2010), 524–587; K. Henrard, ‘Minorities and Socio-economic Participation: The Two Pillars of Minority Protection Revisited?’, IJMGR 2009, 549–576. about interrelations and synergies 23 interrelated in the sense that an identity question is at the same time an aspect of socio-economic participation. Furthermore, and as already hinted in the lingo used earlier, when studying socio-economic participation of minorities as well as its interrelation to the right to identity of minorities, the integration perspective merits consideration. Indeed, there may be considerable disagreement and even controversy about several parameters of integration, it is generally agreed that integration is a holistic process that touches on all spheres of life, and definitely includes socio-economic participation. While explicit integration policies tend to be geared towards the integration of migrants, the integration of traditional minorities is equally relevant. This is of course intrinsically related to what the concept integration is all about: what does it mean, what does it expect to achieve, what are its central principles etc? A key controversy concerning integration, which is at the same time particularly interesting in light of the theme of this edited volume, concerns the relationship between full integration and the maintenance of a separate identity. In other words, can a group be fully integrated when it maintains its own separate identity and does not assimilate? Integration in this respect is again mainly discussed in relation to migrants, but also traditional minorities (and their separate identity) trigger debates about potential threats to national unity and social cohesion as is visible in the extensive literature on minority rights and multiculturalism. The first part of this article lays out the theoretical building blocks including a definition of the concept ‘minority’; a preliminary understanding of ‘participation in socio-economic life’ and ‘integration’ as well as the identification of the two foundational principles of minority protection and how these relate to the interpretation of general human rights and minority specific rights. The second part zooms in on the relationship between socio-economic participation and fundamental rights, acknowledging the transversal value of the right to equal treatment, and discussing the potential relevance of citizenship for the enjoyment of fundamental rights. The essential and instrumental value of political participation is also taken up. The third part goes on to expose the synergies between general human rights on the one hand and minority specific rights on the other regarding the socio-economic participation of minorities. In this respect not only employment, and education are discussed but also, housing, health care, and land rights. The interrelation of socio-economic participation and identity is then taken up in the fourth part, while the fifth and final 24 kristin henrard part provides some pointers in the supervisory practice of the vision of integration in so far as it concerns minorities’ socio-economic participation and identity.

1. Theoretical Building Blocks

a. The Concept Minority, Two Foundational Principles, and Two Pillars for an Adequate Minority Protection Whenever one discusses themes pertaining to minorities and minority protection, it seems appropriate to make a few remarks about the concept minority in order to clarify the range of data that are analysed. Notwithstanding the failure to agree to a common definition, it is possible to identify several recurring elements, arguably denoting the core of the concept concerned: a population group with ethnic, religious and/or linguistic characteristics differing from the rest of the population, a numerical minority and non-dominant position and the wish to hold on to that separate identity.5 The remaining controversies in any event do not concern the ‘separate identity’ component of the definition,6 but (inter alia) the traditional demand that members of minorities have the nationality7 of the country of residence, and the related requirement that these

5 Inter alia K. Henrard, Devising an adequate system of minority protection: individual human rights, minority rights and the right to self-determination, KLI, 2000, 30–31. See also M.N. Shaw, ‘The Definition of Minorities in International Law’, in Y. Dinstein & M. Tabory (eds.), The Protection of Minorities and Human Rights, Martinus Nijhoff 1992, 23–28. 6 There are sometimes queries why handicapped persons or gays and lesbians could not qualify as minorities. While these surely constitute disadvantaged groups, that require special attention and protection, they would not be helped by the existing minority specific rights with their focus on ethnic identity related issues. The UN has in the mean time acknowledged this by adopting a separate Convention on the Rights of Persons with Disabilities (adopted on 13 December 2006 by General Assembly Resolution A/RES/61/106). 7 Several criticisms can be voiced against this requirement. First of all, minority rights are part and parcel of the broader category of human rights. In relation to human rights it is accepted that rights are for every person, including non-nationals, except for the few rights which are explicitly limited to citizens. Since none of the minority rights instruments explicitly limits the enjoyment of the rights to nationals, and human rights should not be interpreted in a way that unnecessarily narrows their reach, imposing this nationality requirement does not seem justified. Three further criticisms of a more fundamental nature can be identified. Citizenship legislation can be (too) easily manipulated by the state (authorities) so as to exclude groups that would otherwise qualify as minorities. As the problems in relation to the former Yugoslavia have shown, when a state falls apart, and international frontiers are redrawn, (new) minority groups are formed who might find themselves without any nationality. Finally, nomadic groups like the Roma (the prototypi- cal pan-European minority) often face difficulties in fulfilling this nationality requirement, especially as their travels would bring them to different countries. about interrelations and synergies 25 persons have long standing ties with that country. This is inter alia relevant for the position of immigrant groups, the so-called ‘new’ minorities. While the practice in relation to the Framework Convention for the Protection of National Minorities denotes that quite a few states indeed hold on to this condition, there seems to be an undeniable tendency to move away from this stance, and to consider also immigrant groups (with persons not having the nationality of the country concerned) as minority groups.8 In this respect it should be noted that several of the social inclusion and integration policies are targeted also at these immigrant groups,9 whether or not they are explicitly qualified as ‘minorities’.10 These so-called ‘new’ minorities could include internally displaced persons and refugees. A final conceptual remark concerns the relationship between the concepts ‘minority’ and ‘indigenous people’. While there is similarly no generally accepted definition of the concept indigenous people, it is widely agreed upon that there is a substantial overlap with the concept ‘minority’. This is also visible in the supervisory practice in relation to minority specific standards.11 Another building block for a discussion cq evaluation of rights for persons belonging to minorities is the identification of the most important criteria for such evaluation. The two foundational principles of minority

8 The HRC explicitly denounces not only the nationality requirement in its general comment on article 27 ICCPR but also proclaims that the length of residence in the state is irrelevant (para 5.2). The Venice Commission of the Council of Europe takes a more modu- lated approach in relation to the nationality requirement in its 2006 Report on Non- citizens and Minority Rights. While it does not go as far as stating that the starting point should be that nationality is irrelevant for the qualification as minority and the enjoyment of minority rights, implicitly it acknowledges this position: the Commission underscores that while the right to vote and be elected can be limited to nationals, the limitation must be interpreted restrictively (para 42–43, see also par. 39 in fine and par. 70 and 75). In other words limiting minority rights to nationals of the state of residence is the exception to the rule, as is the case for general human rights (para 138–143). The supervisory practice in terms of the FCNM confirms this position, since the Advisory Committee increasingly invites states to extent its protection to non-citizens (at least on an article by article basis) (para 34 and 55). 9 K Henrard ‘’new minorities’ and the applicability of minority rights’ in E Bakker et al (eds), ‘New minorities’: inclusion and equality: roundtable conference – October 20, 2003, 19. 10 See particularly infra on the discussion of the EU in this respect. 11 See also L Thio, ‘Battling Balkanization: Regional Approaches Toward Minority Protection beyond Europe’, Havard International Law Journal 2002, 409, 420. Adequate attention is given to the supervisory practice in relation to indigenous peoples in terms of general human rights and minority specific rights. No detailed analysis of the standards pertaining explicitly to indigenous peoples is included, however, to not disrespect the word limit too much. Succinct references in footnotes to these standards are included throughout the text, where relevant. 26 kristin henrard protection can arguably be used in this respect, namely substantive equality and the right to identity of minorities.12 The ongoing discussion about the relationship between and the relative importance of general fundamental rights on the one hand and minority specific rights on the other, thus invites a translation in terms of the respective contribution to substantive equality and the right to identity of both categories of rights. Key in this respect is the interpretation of fundamental rights. By way of starting point it needs to be acknowledged that these rights are rather generally formulated. Hence, interpretation of these provisions is essential to identify the exact contours of the scope of application of the rights and the strength of the ensuing protection.13 In this respect it is essential to realize that human rights are not static. The European Court of Human Rights has actually a very telling line of jurisprudence in this respect, the so-called living instrument doctrine,14 which underscores the needs for the human rights in the convention to be interpreted in tune with social changes. This living instrument doctrine tends to be relied upon if the Court adopts a new approach to a particular interpretation and evaluation question. As minority rights are part and parcel of human rights, the evolutionary nature of these rights also applies to them. The Advisory Committee of the FCNM indeed develops its interpretation of the Convention provisions, and does this in a way which reveals that it becomes more precise and more detailed in the obligations it identifies on the basis of the very vague provisions.15 It has been argued elsewhere that this (potential) shift in interpretation of fundamental rights could have repercussions for the ongoing debate about the relative importance of general fundamental rights in combination with the prohibition of discrimination (the first pillar) on the one hand and minority specific rights (the second pillar) on the other.16

12 See inter alia K. Henrard’s contribution on minorities in the Max Planck Encyclopedia of Public International Law (2009). 13 R. Alexy, A Theory of Constitutional Rights, OUP 2002, 1. 14 See also J. van de Lanotte & Y. Haeck, Handboek EVRM: Deel 1: Algemene Beginselen, Intersentia 2005, 192–195. 15 See also R. Hofmann, ‘Implementation of the FCNM: Substantive Challenges’, in A. Verstichel et al (eds.), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, Intersentia 2008, 181. 16 It is now generally accepted that an adequate protection of minorities requires not only general human rights (and non-discrimination) but also minority specific rights: inter alia R.M. Letschert, The Impact of Minority Rights Mechanisms, TMC Asser Press, 2005, 15; P. Thornberry & M.A. Martin-Estebanez, Minority Rights in Europe, Council of Europe about interrelations and synergies 27

In so far as the non discrimination dimension of the first pillar is increasingly interpreted in a manner that embraces (more completely) substantive equality, and as the general human rights are interpreted in a minority conscious way (taking into account the special needs ensuing from their right to identity), the first pillar would become proportionally more important in relation to the second one.17 In this article the analysis of the interpretation of fundamental rights does not focus on shifts in relative importance of the two pillars of minority protection but rather on the other side of the coin, namely the possible establishment of synergies between the two categories of rights, in terms of substantive equality and the right to identity of minorities. This focus justifies a closer look at the latter two foundational principles, while the focus on the socio- economic participation of minorities invites an examination of the meaning of this concept.

b. (Substantive) Equality and the Right to Identity of Minorities The right to identity should be understood in relation to the fact that the concept ‘minority’ refers to population groups with a separate, own ethnic, religious and/or linguistic identity.18 The right to identity more generally implies that their special needs should be taken into consideration, also concerning activities and measures that in themselves may not be concerned with ethnic identity issues (in the strict sense). A failure to do so would indirectly affect the ability to enjoy one’s right to identity.19 Hence, reasonably addressing the minority dimension and the specific needs of minorities is also important in relation to the socio-economic participation of persons belonging to minorities.

Publishing 2004, 12–13; G. Gilbert, ‘Article 5’, in M. Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities, OUP, 2005, 170–171. 17 Inter alia K. Henrard, ‘The Added Value of the Framework Convention for the Protection of National Minorities: The Two Pillars of an Adequate System of Minority Protection Revisited’, in A. Verstichel et al (eds.), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, Intersentia 2008, 102–103. In this respect it would be possible to argue, as some states and academics have consistently maintained, that there is no need for minority specific rights: inter alia the book edited by Raikka constructed around the critical question ‘Do we need Minority Rights?’ (Martinus Nijhoff 1996). 18 See infra for more elaboration on the concept ‘minority’. 19 See also Patrick Thornberry who argues in his seminal work that the right to identity of minorities is the ultimate criterion to evaluate whether and to what extent a system of minority protection is adequate: P. Thornberry, International Law and the Rights of Minorities, Clarendon Press 1991, 392. 28 kristin henrard

Since human rights are (generally) not absolute, it is indeed correct to add the qualifier ‘reasonably’ to ‘address’. Under the doctrine of legitimate limitations, one of the requirements is that the limitation is proportionate to the legitimate aim (of that limitation), in the sense that there should be a reasonable relationship between the two. Minority specific rights do not tend to have explicit limitation clauses (or provisions),20 but this is coun- terbalanced by the fact that the formulation of the scope of the right is replete with qualifiers, like ‘whenever reasonable’. Consequently, it can be argued that minority specific rights have internalized limitations.21 This also explains why the ensuing analysis focuses on overall protection levels and does not distinguish between scope of application and legitimate limitations. In view of the centrality of (substantive) equality to minority protection generally, it seems appropriate to dwell a little longer on the latter’s meaning and implications (in relation to minority protection).22 When talking about equality it is in any event very important to distinguish between formal equality (or equality as consistency), which sets out to treat everybody in exactly the same way, on the one hand and substantive or real or full equality on the other. Substantive or real equality acknowledges differences in starting positions and might necessitate formal unequal treatment, which amounts to the so-called paradox of the equality principle. Substantive equality is indeed crucial to minorities as that would cater for minorities’ need for special measures, adapted to their situation. However, it is also important that minorities are effectively protected against (invidious) discrimination.

20 The FCNM is specific in this respect but this is due to the fact that it includes general human right, in a slightly reformulated way so as to fit the minority reality better. It is hence understandable that article 19 states that ‘parties undertake to respect and implement the principles enshrined in the present Framework Convention making, where necessary, only those limitations, restrictions or derogations which are provided for in international legal instruments, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, in so far as they are relevant to the rights and freedoms flowing from the said principles’. See also the chapter by Lauri Hannikainen on this article in The Rights of Minorities: A Commentary on the European FCNM (edited by Marc Weller, OUP, 2005) especially 519–521. Article 22 on the other hand seems to indicate that minority rights should not lead to limitations of general human rights. This should be seen as meaning that persons belonging to minorities should benefit from the rights most favourable of them: see also Hannikainen’s chapter in the Commentary cited above, at 557–558. 21 Henrard 2000, 217 and 225. 22 For a more elaborate discussion of the relevant points, see inter alia K Henrard, Equal Rights versus Special Rights: Minority Protection and the Prohibition of Discrimination (2007) and the entry ‘equality of individuals’ in the Max Planck Encyclopedia on Public International Law (2008). about interrelations and synergies 29

The equality principle may have several dimensions (including equality before the law, and equal protection of the law), the prohibition of discrimination is the central focus point of legal provisions and academic writings on equality. The prohibition of discrimination does not prohibit all differences in treatment, it only prohibits differences in treatment for which there is no reasonable and objective justification, implying the absence of a legitimate aim and/or a relationship of proportionality between the differentiation and the legitimate aim. In other words the prohibition of discrimination targets unjustified differential treatment. An effective protection against unjustified disadvantageous treatment or invidious discrimination is equally essential to persons belonging to minorities, as they are often targets of such measures. Importantly, the prohibition of discrimination does not only provide protection against invidious differentiations but also entails potential for accommodating substantive equality, depending on how this formula is put to use. A first point that can be made is that the prohibition of discrimination would allow for certain differential measures aimed at reaching substantive equality for minorities. Substantive equality would arguably be a legitimate aim for a differential treatment, leaving the proportionality requirement to be met. The level of scrutiny in relation to the proportionality principle then determines the extent to which it would be possible for states to adopt such special measures without falling foul of the prohibition of discrimination. However there are more subtle and ‘advanced’ ways in which the prohibition of discrimination can embrace (and hence contribute to) substantive equality. A particularly important one concerns the duty to adopt differential measures in relation to persons who find themselves in substantively different situations, in order to avoid a finding of (prohibited) discrimination. The leap to an actual obligation to adopt ‘special’ measures, because the special circumstances of a person (member of a group) need to be taken into account, obviously resonates well with minority specific rights (and thus duties to adopt these).23

23 Venice Commission, Note de Synthese sur la Participation des Personnes appartenant a des minorites a la vie Sociale (CDL-MIN(97)3, 2–4. For an argument about the intrinsic relation between duties of differential tratment and duties of reasonable accommodation, and the related call to also recognize duties of reasonable accommodation on grounds of religion, see inter alia K. Henrard, ‘Duties of reasonable accommodation in relation to religion and the ECHR: a closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality’, to be published in ELR 2012. 30 kristin henrard

A mechanism which is intrinsically related is the prohibition of indirect discrimination. Indirect discrimination recognizes that neutral measures can nevertheless amount to prohibited discrimination when they affect a particular group disproportionately without there being a reasonable and objective justification.24 A good and relevant example here would be the recognition that disproportionate demands (not justified by the nature of the job) as to proficiency in official language for jobs in the private or public service can amount to indirect racial discrimination.25 The solution here would be to abandon this requirement. However, in so far as the disproportionate impact flows from a requirement which is generally considered legitimate, an important means to avoid a finding of prohibited indirect discrimination would be the adoption of exemptions. These ‘differential’ measures would preclude the disproportionate impact. Hence this would be another avenue to recognize a duty to adopt special (minority) measures. Importantly, in relation to indirect discrimination, the definition shows that it has an inherent group dimension, making it even more appropriate for minority protection purposes. Furthermore, since intent is (obviously) irrelevant in relation to indirect discrimination, it could be a mechanism to fight against so-called systemic or institutionalised discrimination, which flows from ingrained prejudices, without their being a demonstra- ble intent.26 The high degree of systemic discrimination against Roma (and other minority groups) is well known. A good example here would be the impact of cultural differences at the level of personnel selection, where such differences can trigger a rejection, of an otherwise suitable candidate.27 Thirdly, an assessment of the relationship between the prohibition of discrimination and positive action is in order, not in the least as the latter is geared towards substantive equality. The prohibition of discrimination actually constitutes the boundary of legitimate positive action (or affirmative action). Indeed, positive action concerns differential treatment. Hence its legitimacy is determined by the general criteria which

24 Inter alia Ch. Tobler, Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination under EC Law, Intersentia 2005, 3–4. 25 Inter alia B. de Witte & E. Horvath, ‘The Many Faces of Minority Policy in the European Union’ in K. Henrard & R. Dunbar (eds), Synergies in Minority Protection, CUP 2008, 365, 372. 26 O. De Schutter, ‘Three Models of Equality & Indirect Anti-Discrimination Law’, 57 Northern Ireland Legal Quarterly, 8–13. 27 Veenman 2003/4, 284–285. about interrelations and synergies 31 distinguish prohibited discrimination from acceptable differential treatment: the need for a legitimate aim and compliance with the proportionality principle. Since the legitimate aim of positive action is substantive equality, the ‘only’ potential problem with positive action is its proportionality (to the legitimate aim). Again, the level of scrutiny adopted by the supervisory body is decisive here: the stricter the level adopted, the less openness towards positive action is demonstrated.28

c. Participatory Rights: Participation in Social and Economic Life and Political Participation The lack of a generally agreed upon, let alone legal, definition of the concept ‘participation’ does not make it impossible to indicate that it has in any event a very broad potential reach. When discussing participatory rights, the focus has been admittedly on political participation, and not on social and economic participation. In relation to the former it is understood that it is generally of central importance to minority protection.29 Political participation contributes to the protection and promotion of other minority interests (and their actual realization) and hence amounts to an essential instrument of minority protection.30 In this respect it can be said that political participation, in its ‘basic’ manifestation of consultation and involvement in devising relevant policies, is equally important for socio-economic participation.31 It is argued here that (to some extent at least) this consultation and the related right to be taken seriously is also the procedural aspect of the participation in economic life (see infra).32 Turning more specifically to participation in social and economic life, it is not too difficult to identify relevant themes in this respect, more particularly access to education, to employment, to health care, to housing, to

28 See inter alia K. Henrard, ‘Boosting Positive Action: the Asymmetrical Approach towards Non-discrimination and Special Minority Rights’, Heidelberg Journal of Inter national Law 2011, 379–418. 29 In the words of Allan Phillips: participation as a foundation right: A Phillips, ‘The Framework Convention for the Protection of national Minorities and the Protection of Economic Rights of Minorities’, European Yearbook on Minority Issues 2003/4, 287, 288. 30 F. Bieber, Balancing Political Participation and Minority Rights: The Experience of the former Yugoslavia (2002/3) 2–3; Henrard 2000, 271–272. See also P. Thornberry, ‘Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of Minorities’ in M Suksi (ed), Autonomy: Implications and Applications 1998, 97,110. 31 The supervisory practice in terms of the FCNM has early confirmed the central importance to consult the minorities in relation to all matters covered by the FCNM: also participation in social and economic life. 32 See also M.E. Salomon, ‘Socio-Economic Rights as Minority Rights’ in M. Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies, OUP 2007, 439–440. 32 kristin henrard other social services etc. In other words, it concerns ‘social and economic benefits that flow from life within the state’.33 Clearly, participation in economic and social life is predominantly concerned with the effective enjoyment of social and economic rights. At the same time it should be kept in mind that through progressive interpretation of civil and political rights and more particularly the identification of positive state obligations in this respect, the ‘socio-economic domain’ is also in play with these rights.34

d. Integration and/of Minorities The close relation between socio-economic participation35 on the one hand and questions of social inclusion, the related fight against marginalization, and integration on the other seems rather self-evident and is often highlighted in public discourse and the media.36 Nevertheless, ‘integration is given entirely different interpretations by diverse scholars, organizations and even states’.37 Hence, an academic article about fundamental rights of minorities invites a closer analysis of what ‘integration’ means, what are its foundational principles and premises, how are these related to

33 M. Weller, ‘Report: A Critical Evaluation of the first results of the monitoring of the Framework Convention on the issue of effective participation of persons belonging to national minorities’, in Filling the frame: five years of monitoring the FCNM, Council of Europe 2004, 72. 34 See inter alia I Daugareilh, ‘La Convention Européenne de sauvegarde des droits de l’homme et des libertés fondamentales et la protection sociale’, Revue Trimestrielle des Droits de l’Homme 1991, 123, 128–131; O. De Schutter, ‘The Protection of Social Rights by the European Court of Human Rights’ in P Van Der Auweraert et al (eds.), Social, Economic and Cultural Rights: An Appraisal of Current European and International Developments, 2002, 207, 213–239. Furthermore reference can also be made to the third generation human right to development, which is not only closely related to the second generation economic and social rights but is now increasingly focused upon in relation to minorities. See inter alia various publications of the Minority Rights Group International in this respect (all to be down- loaded from minorityrights.org, including P. Justino & J. Litchfield, Economic Exclusion and Discrimination: The Experiences of Minorities and Indigenous Peoples; M.E. Salomon & A. Sengupta, The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples; S.C. Janet, Development, Minorities and Indigenous Peoples: A Case Study and Evaluation of Good Practice; R. Riddell, Minorities, Minority Rights and Development. See also the Decision of the UN Working Group on Minorities in March 2004 to focus discussions on minorities and development (and action taken by governments for incorporating minority issues in activities to reach the Millennium Development Goals). 35 There may be a more general link between integration, inclusion and participatory rights: see AC, Commentary on Effective Participation, para 9 where it stipulates that ‘effective participation of persons belonging to national minorities is also crucial for enhancing social cohesion’. See inter alia Opinion on Moldova (ACFC/INF/OP/I(2003)002) para 39–40. 36 Weller 2004, 72. 37 Zanker 2010, p 220. about interrelations and synergies 33 the foundational principles of minority protection, and to the fundamental rights paradigm.38 Notwithstanding the link that is often made between integration on the one hand and socio-economic participation on the other, integration is actually a broad concept, touching on all spheres of societal life, taking place at every level and in every sector of society.39 This is furthermore confirmed by the four dimensions of the process of integration that are identified.40 Legal or structural integration refers to rights and access to positions in core institutions of society. This concerns effective access to education, to the labour market, to housing and also to political citizenship. Cultural integration would be about the cognitive, behavioral and attitudinal change in people both for the dominant group and the minorities, while social integration reflects the degree to which one’s private relations demonstrate one’s inclusion and acceptance in relationships and positions in the host society. Identificational integration would concern a sense on the side of the minorities of belonging and thus identifying with the society at large. Themes that have been highlighted as being relevant for the integration of minorities, inter alia in the Migration Integration Policy Index (developed within the framework of the EU regarding Third Country Nations)41 include access to education, labour market access, political participation, anti-discrimination/equal treatment and some legal status.42 Central to the success of an integration project is the right to equal treatment, and more particularly the effective protection against (invidious) discrimination.43 Indeed, integration is the antithesis of segregation and social

38 Concerning the FCNM, it can be argued that the entire framework convention is based on the idea of ‘integration’ of minorities in the sense of inclusion in public affairs, cultural, social and economic life. In this respect it can be highlighted that the president of the AC pointed out in a presentation on 12 November 2008 that the work of the AC has clarified/shown that employment and economic participation is essential for harmoni- ously integrated societies: see also J. Marko, ‘Effective Participation of National Minorities: A Comment on conceptual, Legal and Empirical Problems (DH-MIN(2006)014) 3. 39 See also Medda Windischer 2009, p. 247. 40 Medda Windischer 2009, p. 248 and Zanker 2010, p. 223. 41 See the book edited by J.Niessen and Th Huddleston 2009: Legal Frameworks for the Integration of Third-Country Nationals. 42 Inter alia Tom Hadden, “Integration and Separation: Legal and Political Choices in Implementing Minority Rights”, in N.Ghanea & A.Xanthaki (eds.), Minorities, Peoples and Self-Determination (2005) pp. 177–186. 43 J. Friedrichs and W. Jagodzinsky, ‘Theorien Socialer Integration’, 33 Kölner Zeitschrift fur Sociologie und Socialpsychologie 1999, 17; J. Niessen, “Construction of the Migrant Integration Policy Index”, in J. Niessen and Th. Huddleston (eds.), Legal Frameworks for the Integration of Third-Country Nationals, 2009, 2–3. See also the extensive analysis of the 34 kristin henrard exclusion44 and integration problems of minorities tend to be mirrored by problems in terms of (often systemic) discrimination.45 Another area of particular relevance for integration in a society concerns participatory rights.46 While political participation has two components: one on representation in the national institutions (and decision making processes) and one on autonomy, it is obvious that for integration purposes, the emphasis is on the representation dimension.47 Several dimensions of political participation can be distinguished,48 including formal political rights or voting rights, informal political rights related to membership in political parties, the establishment of consultative and advisory bodies, being represented not only in parliament and government but also in the civil service, the police, the judiciary etc. This representation dimension of political participation is essential for integration because it provides an opportunity to express one’s commitment, while strengthening that commitment.49 In turn, being visible in the state apparatus can play an important role in forging links of mutual understanding and loyalty between the different communities within a state.50 Furthermore, effective participation, especially in decisions of relevance to them, will make them feel more confident that their interests and concerns will be taken into account51 and will make them feel committed to the society they are part.52 Notwithstanding the centrality of political participation, the importance for integration of socio-economic participation should not be underestimated either. Niessen notes that several aspects of employment ways in which and the extent to which non-discrimination can contribute to minority protection in Kristin Henrard, “Non-discrimination and Full and Effective Equality”, in Marc Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies, 2007, 75–147. 44 Inter alia Chandran Kukathas, Theoretical Foundations of Multiculturalism (1992). available at , pp. 407–408; Roberta Medda-Windischer, Old and New Minorities: Reconciling diversity and cohesion, Nomos 2009, at 19. 45 See also E. Anderson, The Imperative of Integration, Princeton University Press 2010, 2. 46 Niessen 2009, 2–3. 47 Hadden 2005, 175. 48 Niessen 2009, 6. 49 Inter alia Niessen 2009, 6; A.Verstichel, The Right of Persons belonging to Minorities to Effective Participation in Public Affairs, Intersentia, 2010, 70 and 215. 50 Verstichel 2010, 49 and 70. See also T. Hadden, “Integration and Separation: Legal and Political Choices in Implementing Minority Rights”, in N. Ghanea & A. Xanthaki (eds.), Minorities, Peoples and Self-Determination, Martinus Nijhoff, 2005, 173–191, at 175. 51 Verstichel 2010, 215. 52 Verstichel 2010. 93. about interrelations and synergies 35 matter for a sound socio-economic integration: effective access to employment would not only be related to matters of eligibility, training and language acquisition programmes but also security of employment.53 In this respect, the protection against discrimination is key, while problems of systemic discrimination may require counter measures aimed at integrating the group discriminated against (better). However, some of these measures might take the form of positive action, which tend to be controversial54 and might thus also threaten the success of the integration project. In other words, (the) two foundational principles of integration would be equality and participation, which clearly resonates with the basic tenets of minority protection. Indeed, these integration principles are not only relevant for migrants – for which most explicit integration policies are devised, but also for traditional minorities.55 Actually when talking in terms of integration, one tends to refer to the integration of population groups different from the majority or the dominant groups in a society. Hence, integration concerns and policies would seem to be reserved for minorities. This does not contradict the fact that most explicit integration policies concern migrants, since the latter are increasingly accepted to qualify as ‘new’ minorities’, while the understanding is growing that migrants, their needs and concerns are in many respects similar to those of national minorities.56 Furthermore, the relevance of integration par- lance for traditional minorities can also be related to the fact that all minority specific rights instruments explicitly make the link between an appropriate minority protection on the one hand and concerns of stability and peace. Indeed, arguably concerns of stability and peace speak to integration, the extent to which a multinational society is actually integrated. This is visible in exactly these situations where the lack of integration of national minorities translates into ethnic tensions, desires to secede, possibly escalating into ethnic conflict and even civil war. However, notwithstanding the important overlap and apparent synergies between integration and minority protection, there is also a possible fundamental divergence, depending on the standpoint one takes about

53 Niessen 2009, 5. 54 See inter alia Christopher Mc Crudden, “Rethinking Positive Action”, 15 Industrial Law Journal 1986, 241. 55 Pentikainen 2004, 125. 56 This is extensively argued by Roberta Medda Windischer in her book and has been documented by several authors in relation to the practice of the Advisory Committee of the FCNM. See inter alia J.Ringelheim, “Minority Rights in a Time of Multiculturalism – The Evolving Scope of the Framework Convention on the Protection of National Minorities”, 10 Human Rights Law Review 2010, 99–128. 36 kristin henrard what integration is about, and that concerns the right to identity of minorities. Indeed, a key discussion in political philosophy concerns the relationship between integration on the one hand and assimilation (versus multiculturalism57 or accommodation) on the other. The writers adopting a strong multiculturalist stance argue that in order to integrate a multi- ethnic society the integration process should not entail forced assimilation but should accommodate differences (to some extent at least).58 Other authors appear to oppose integration to accommodation, as reflected in the title of the book edited by Sujit Choudry.59 Still others adopt a more nuanced position and relate integration to ‘unity in diversity’ and thus to a balanced approach, which does not privilege unity and does not privilege diversity either.60 Priviliging unity would alienate the minority, while privileging diversity would go counter to the wish to have a stable and cohesive state. In other words this more nuanced position sees integration as a policy which allows for and protects diversity within a common framework, pursuing common goals. When one accepts that integration should not go hand in hand with assimilation, forced assimilation being morally repugnant and voluntary assimilation not a prerequisite for a ‘successful’ integration process, one is more ready to accept that integration is a two way process. Indeed, requiring the minority to adapt to the dominant culture and discard its own identity is a one way process. Integration as a two way process acknowledges that the presence of minorities in society also influences the majority, the dominant group in the sense that the integration of minorities implies a gradual alteration of the fabric of society.61 A successful integration process would then not depend exclusively on the minority working with the integration policies, familiarizing with and respecting the majority or dominant norm, accepting some values as common values, learning the dominant language etc. It would also need the dominant society (the government) to adopt ‘inclusive’ policies, giving minorities a feeling they are accepted by the dominant society, giving them a stake in the country.62

57 See the previous times that multiculturalism is mentioned in relation to the integration debate and the references included there. See also Brett Klopp, German Multi culturalism: Immigrant Integration and the Transformation of Citizenship, 2002, 23. 58 Zanker 2010, 220–221. 59 S. Choudry (ed.), Constitutional Design for Divided Socieities: Integration or Accommodation, OUP 2008. 60 Medda Windischer 2009, 17–18. 61 Klopp 2002, 23, and 26, where he proposes the concept ‘reciprocal integration’. 62 Zanker 2010, 221–222. about interrelations and synergies 37

Another reason why integration and minority protection are not covering the same load, notwithstanding the overlap in founding principles, is their clearly different perspective: minority protection is more conceived from the perspective of the minority group and its members whereas ‘integration’ ultimately is adopted from the perspective of the society – also when focusing whether or not a group is integrated In the social sciences one may make the distinction between two integration perspectives: one concerns whether or not a particular group is integrated and the other whether a society is integrated. Still, these two perspectives exhibit a considerable overlap, since when one or more groups are not integrated, the society cannot be integrated either. Hence, ultimately integration proceeds from the perspective of ‘society’ at large. Consequently, an analysis of the integration angle is expected to yield complementary insights, in addition to revealing synergies or parallels with the evaluation in terms of socio-economic participation of minorities.

2. Participation in Social and Economic Life for Minorities: Relevant Standards and a Few Preliminary Considerations

It is common knowledge that persons belonging to minorities confront disproportional problems in effectively accessing (quality) education, employment, housing, because of existing prejudice in combination with their particularly vulnerable situation.63 Hence minorities disproportion- ally encounter problems of invidious discrimination, and marginalization, as well as constrained social inclusion and integration. These problems of effective access do not only concern invidious discrimination but also lack of substantively equal access, because minorities’ specific characteristics and needs of minorities are not sufficiently taken into account (and reasonably accommodated). Substantive equality (presupposing an effective protection against invidious discrimination) and the right to identity of minorities can indeed be considered key parameters for an evaluation of the participation in social and economic life of minorities.

a. Relevant Minority and Human Rights Provisions The following overview of standards (potentially) relevant to the socio- economic participation of minorities is confined to the standards

63 T. Bedard Participation in Economic life: An Advocacy Guide for Minorities in South – East Europe, 2005, 13. 38 kristin henrard developed within the framework of the UN, as global organization, and the Council of Europe, as the regional organization with the only legally binding instrument enshrining minority specific rights. Furthermore, within the UN those human rights treaties have been selected that have a strong focus on either socio-economic rights (like the ICESCR), or that enshrine minority specific provisions (like ICCPR and CRC) or are implicitly geared towards minorities (like CERD). Applying similar selection criteria to the conventions of the Council of Europe justify the focus on the ECHR, the European Social Charter and the FCNM. The minority specific provisions are rather varied in their scope and explicit (or implicit) inclusion of matters pertaining to participation, let alone in terms of socio-economic participation. Article 27 ICCPR does not explicitly take this up, while paragraph 35 of the Copenhagen Declaration is framed in terms of ‘effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities’ and thus seems to be focused on political participation. The UN Declaration and the FCNM64 do mention participation in social and economic life65 in their provision on participatory rights but do not specify this in any detail. The latter also have explicit provisions on education, which is obviously of relevance to social participation, as well as equality provisions explicitly embracing substantive equality. It is clear that one needs to consider the interpretation of these provisions in order to be able to assess the actual degree of protection of socio-economic participation that ensues therefrom. Since only the FCNM has a proper supervisory mechanism, the practice of which is included in the analysis infra, the identification of the (most) relevant provisions of this convention merits some further discussion on the basis of a preliminary consideration of the supervisory practice. The most obvious articles of the FCNM that come to mind when considering socio-economic participation are article 15 on participatory rights and article 4 on equality, the latter considered as being of key importance in this respect. Since education is obviously connected to participation in social life, with implications for employment and hence participation in economic life, article 12 and 13 FCNM should definitely be included in the analysis. Importantly, the AC increasingly acknowledges the central importance66

64 Article 2(2) of the UN Minorities Declaration and article 15 FCNM. 65 Article 2(2) of the UN Minorities Declaration and article 15 FCNM. 66 The fact that the first Commentary by the AC of the FCNM is dedicated to that theme is of course significant: AC, Commentary on Education under the Framework Convention about interrelations and synergies 39 of education67 for subsequent employment possibilities and the negative knock on effects inferior education has in this respect.68 Nevertheless, it is important to highlight already here that educational matters are often addressed in terms of article 4. Then again, it is important not to lose sight of the fact that effective and equal access to education does have implications in terms of medium of instruction and curriculum issues, which are captured in article 12 (1) and (3). This practice of the AC arguably reveals its holistic approach to questions of integration and inclusion in relation to socio-economic participation. The appendix to the Commentary on the Effective Participation of Persons belonging to national minorities in cultural, social and economic life and in public affairs69 contains a list with other articles of the Frame work Convention that are relevant to the interpretation of article 15. This list shows that on occasion still other articles of the FCNM70 have proven to be relevant for aspects of participation in social and economic life.71 This is more particularly the case for article 6 on the importance of mutual tolerance and respect, of intercultural dialogue, and of integration policies more generally. The AC regularly addresses issues in terms of article 6 that arguably pertain to participation in social and economic life. Sometimes there is a more or less pronounced connection with tolerance; mutual respect etc, but often this link is implied. Problems of systemic and widespread discrimination, often against Roma, are tackled under article 6.72 for the Protection of National Minorities (ACFC/25DOC(2006)002). Strikingly, also in this commentary, which primarily deals with articles 12–14, the relevance of articles 4, 5 and 6 is highlighted: see at 9–10. 67 ENAR also highlights the crucial importance of education, not only because education can foster intercultural societies respectful of difference but also, and this is important here, because ‘education is viewed as a major route to economic growth, long-term com- petitiveness and social cohesion and to the creation of more equal and fair societies’: General Policy Paper no 5: Fighting Racism and Promoting Equal Rights in Education and Training (November 2008). Admittedly these considerations transcend the importance of education for the individual advancement of persons belonging to minorities and is more focused on the benefit for society as a whole, but the underlying rationale is the same. 68 AC, Opinion on Ireland (ACFC/OP/II(2006)007), para 116. 69 ACFC/31DOC(2008)001. 70 The Appendix on ‘Relevance of other articles of the Framework Convention for the Interpretation of article 15, to the Advisory Committee’s Commentary on Effective Participation also indicates that the possibility under article 9 to create and use their own media may have indirect social and economic benefits for persons belonging to national minorities (ACFC/31DOC(2008))001, para 39–40). This theme has not been taken up here, as it has not been developed in the country specific opinions so far. 71 See also (for an even more extensive list) see the full Appendix to the Commentary. 72 While these comments are expected in relation to Eastern European Countries, like the Czech Republic (ACFC/INF/OP/I(2002)002, para 35: discrimination in employment) 40 kristin henrard

The first opinion on Bosnia Herzegovina underscores more generally the lack of economic opportunities for persons belonging to minorities,73 which is arguably related to the lack of respect/understanding for and prejudices against minorities. Similarly the AC calls on Austria to tackle the existing discriminatory practices in the employment field and to step up the integration policy of the country, while ensuring that the required funds are made available to realize these changes.74 The Commentary on Effective Participation highlights the importance of state obligations under article 6 to counter minorities’ economic marginalization and exclusion (paragraph 71). It is obvious that the general human rights conventions of most relevance for socio-economic participation are the ICESCR and the (Revised) European Social Charter since these focus on socio-economic rights.75 It should not be forgotten that the Racial Discrimination Convention (CERD) and the Convention on the Rights of the Child (CRC) also cover the socio- economic domain. The former is furthermore generally acknowledged to be particularly relevant for minorities, as it addresses discrimination on the basis of ethnic origin and sets out to counter disadvantages suffered by persons belonging to ethnic groups. These ethnic groups are often ethnic minorities, as is also visible in the supervisory practice of the treaty body.76 Finally, the UN Convention on the Protection of the Rights of all Migrant Workers and Members of their Families77 may not be ratified by many

and the Former Yugoslav Republic of The Former Yugoslav Republic of Macedonia (ACFC/ INF/OP/I(2005)001, para 52: discrimination in relation to housing, education, employment and access to social assistance), they are also made about Western European countries, Finland (ACFC/INF/OP/I(2001)002, para 25: prohibitions to enter restaurants) and Portugal (ACFC/INF/OP/I(2006)002, para 42: unequal access to education, health and other social services) respectively. 73 AC, Opinion on Bosnia Herzegovina (ACFC/INF/OP/I(2005)003) para 66. 74 AC, Opinion on Austria (ACFC/INF/OP/I(2002)009), para 34–35. 75 The African Banjul Charter has been described as a codification of the three generations of human rights, and thus enshrines socio-economic rights as well. The African Commission on Human and Peoples’ Rights has also underscored in its famous Ogoni case that the minority group concerned should have participated in the benefits accruing from the development operations in their territory: inter alia F. Coomans, ‘The Ogoni case before the African Commission on Human and Peoples’ Rights’, I.C.L.Q. 2003, 749–760. 76 Inter alia UN Doc. CERD/C/304, Add.51, para 13 (Armenia); UN Doc.CERD/C/304/ Add.46, para 13 (Netherlands) ; UN Doc.CERD/C/304/Add.38, para 15 (Macedonia). 77 Inter alia CERD Committee, Concluding Observations on Moldova (CERD/C/MDA/ CO/7 (2008) para 22; CESCR, Concluding Observations on Hungary (E/C.12/HUN/ CO/3(2008) para 55; CRC, Concluding Observations on Dominican Republic (CRC/C/ DOM/CO/2 (2007) para 77. about interrelations and synergies 41 states, especially not by the dominant ‘receiving’ states,78 it cannot be left out of this overview of UN and Council of Europe standards. The Migrant Workers Convention clearly addresses matters of relevance to participation in social and economic life of new minorities, while crucially invoking the principle of equal treatment between migrant workers and nationals, not only in relation to several socio-economic rights (articles 25–30, 38, 40 and 54) but also cultural rights, more particularly the right to preserve one’s cultural identity (article 31), and civil rights, like the freedom of religion (articles 12–13).79 Furthermore, general human rights conventions with civil and political rights, like the ECHR, and the ICCPR80 also need to be included in view of the extent to which progressive interpretations of the related state obligations touch on socio-economic issues. In relation to the ICCPR it should be noted that the inclusion of a general non discrimination provision (article 26) allows the Human Rights Committee to consider complaints of discrimination in relation to economic and social rights. The 12th Additional protocol does the same for the ECHR. The above review of the relevant standards has revealed that most detail in terms of socio-economic participation is found in the general human rights instruments. The question for the ensuing analysis of the supervisory practice is whether the interpretation by the supervisory bodies exhibits sufficient attention for the minority dimension, the special needs flowing from the minority identity.81 Conversely, the minority specific rights in themselves are geared toward the right to identity of minorities, while there are scant provisions, if any, pertaining explicitly to socio-economic participation. The ensuing analysis of the supervisory practice will reveal whether and to what extent through interpretation the socio-economic participation dimension is nevertheless added. Ultimately

78 Notably absent among ratifying states are inter alia the EU member states, Canada and the US. A major ratification obstacle for receiving countries is the Convention’s exten- sion of some rights to undocumented workers, while also the anti-immigrant sentiments in several countries due to the current economic and political climate are an explanatory factor in this respect: inter alia Antoine Pécoud and Paul de Guchteneire, Migration, Human Rights and the United Nations: An Investigation of the Obstacles to the UN Convention on Migrant Worker’s Rights, Global Migration Perspectives 2004/3, 6, 8–11. 79 Inter alia Jennifer Yau, ‘Promise and prospects of the UN Convention on Migrant Workers’, Migration Information Source, [www.migrationinformation.org], March 2005. 80 The American Convention on Human Rights also falls outside an overview of relevant UN and Council of Europe standards, as does its San Salvador Protocol which enshrines several socio-economic rights. 81 Bedard 2005, 11–17. See also K Henrard & R Dunbar (eds), Synergies in Minority Protection, CUP 2008. 42 kristin henrard the question is whether and to what extent the differences in standards is evened out through the supervisory practice, revealing synergies (in protection levels). The following analysis (both the preliminary considerations and the more in depth study of synergies) will start from the minority specific rights, and thus the FCNM (as the only one with a proper supervisory mechanism), to then proceed to the instruments with general fundamental rights (of both the UN and the Council of Europe).

b. Equality as Transversal Value In terms of the FCNM, the central importance of the equality guarantee for socio-economic participation is underscored and thus the intrinsic connection between issues of discrimination (article 4) on the one hand and issues of effective participation as addressed through article 15 on the other.82 Hence, it is not that surprising that often if not mostly the problems concerning participation in economic and social life are addressed under article 4, only sometimes in addition to similar remarks under article 15. Especially in relation to Roma, the systemic discrimination they suffer in relation to economic and social rights, including education, is often addressed in terms of article 4.83 When considering the substantive findings in terms of equality, the Advisory Committee underscores the importance of a comprehensive legislative framework, which needs to tackle discrimination, also in the fields of socio and economic life.84 Similar calls on states to adopt comprehensive legislation to combat racial discrimination also in social – economic life can be identified in the practice of the CERD Committee, the Human Rights Committee and the Committee on the Rights of the Child. The Committee on Economic, Social and Cultural Rights sticks out because it goes beyond the general talk and mentions explicitly the relevant areas, namely housing, health care, employment, education and, access to services.85

82 Phillips 2003/4, 101. 83 Ibid, 105. 84 AC, Commentary on Effective Participation, 15. 85 Committee on Economic, Social and Cultural Rights, General Comment no 20, Non- discrimination in economic, social and cultural rights (art.2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), para 6, and the references in footnote 4 to various other General Comments concerning particular rights enshrined in the ICESCR. about interrelations and synergies 43

In view of the importance for giving content to substantive equality of a duty to adopt differential treatment, the inclusion of indirect discrimination in the prohibition of discrimination and positive action, it is to be welcomed. It amounts to another strong synergy between the practice in terms of the FCNM and more general human rights conventions. Again in relation to the Roma and their particular disadvantaged situation, the AC recognizes that treating Roma formally equal (without taking their particular circumstances into account) might lead to prohibited indirect discrimination. The AC urges states to adopt special/differential measures to avoid such a finding of indirect discrimination. Slovenia is for example asked to amend legislation to redress the fact that Roma are dis- proportionally affected by dwellings becoming illegal,86 while the Russian Federation is urged to adopt effective measures to tackle the disproportionately high unemployment amongst not only the Roma but also the numerically smaller indigenous peoples.87 The AC welcomes in this respect the adoption of special measures/a national plan by Romania and the Serb Republic, aimed at improving the social, medical and educational situation of the Roma communities.88 The concept of indirect discrimination has been embraced by the treaty bodies: the CERD committee from the beginning, the Human Rights Committee taking a bit longer to come to terms with it and the Committee on Social, Economic and Cultural Rights explicitly addressing it in its General Comment on Non-discrimination in Social, Economic and Cultural Rights.89 The CERD Committee explicitly includes unjustifiable disparate impact in the scope of the prohibition of racial discrimination in its General Recommendation no 14 (para 2), and also addresses concerns of indirect discrimination directly, regularly making statements in this regard which are of specific relevance for minorities.90 A nice example can be found in its concluding observations on Denmark where it stated that ‘the reported prohibition of the use of the mother tongue in some of these

86 AC, Opinion on Slovenia (ACFC/INF/OP/I(2005)002), para 30. 87 AC, Opinion on the Russian Federation (ACFC/INF/OP/I(2003)005), para 41–42. 88 AC, Opinion on Romania (ACFC/INF/OP/I9(2002)001), para 25, AC, Opinion on Serbia (ACFC/INF/OP/I(2004)002), para 42. 89 Committee on Social, Economic and Cultural Rights, General Comment No 20, par 10, where it also provides an example pertaining to education. See also K. Henrard, ‘Non- Discrimination and Full Equality’, in M. Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies, OUP, 2007, 116–117. 90 W. vandenHole, Non-Discrimination and Equality in the View of the UN Human Rights Treaty Bodies, Intersentia 2005, 71. 44 kristin henrard establishments may, though aimed at facilitating integration, lead to indirect discrimination against minorities’.91 The ECHR took notoriously long to come to terms with the concept of indirect discrimination. Some argued that accepting a duty to adopt special measures for persons in substantively different situations in its 6 April 2000 judgment in Thlimmenos v Greece, was an important move towards an acceptance of indirect discrimination. Indeed, the two are closely interrelated. Nevertheless it took until 13 November 2007 for the Court to adopt its seminal Grand Chamber decision on indirect discrimination in DH et al v Czech Republic. It is obviously to be welcomed that it concerns a case on Roma and equal, effective access to education.92 Unfortunately, there have since been judgments that have revealed that the ECtHR still has not fully embraced the prohibition of indirect discrimination, in the sense that it fails to identify instances of this type of discrimination.93 The Revised European Social Charter enshrines a prohibition of discrimination in relation to the rights enshrined therein and this set in motion a most promising line of jurisprudence, attentive for effective protection against discrimination and embracing substantive equality. Early on, since its decisions in complaint 13/2002 Autism Europe v France, it adopts the Thlimmenos reasoning and acknowledges its intrinsic connection to indirect discrimination.94 In a later complaint pertaining to the problems of housing experienced by Travellers, the Committee identifies a duty for the state to take the special needs of the Traveller community into account.95 In a more recent decision pertaining to complaint

91 CERD Committee, Concluding Observations on Denmark (CERD/C/60/CO/5) para 12. 92 See also K. Henrard, ‘A Patchwork of ‘succesful’ and ‘missed’ synergies in the jurisprudence of the ECHR’, in K.Henrard & R. Dunbar (eds.), Synergies in Minority Protection, CUP, 2008, 325. 93 See also Marja Davidovic and Peter R. Rodriguez,”Roma maken school inStraatsburg”, 34 NJCM-Bulletin (2009/2), 155–172, at 167–171. A non-Roma case where this is also the case concerns for example ECtHR, Appl. No. 45413/07, Anakomba Yula v. Belgium, judgment of 10 March 2009. 94 European Committee on Social Rights, Complaint no 13/2002, Autism Europe v France, para 52: ‘… Article E not only prohibits direct discrimination but also all forms of indirect discrimination. Such indirect discrimination may arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all’. 95 European Committee on Social Rights, Complaint no 33/2006, International Movement ATD Fourth World v Francea, para 154. See also for a similar case pertaining to Roma, European Committee on Social Rights, complaint no 27/2004, para 21. about interrelations and synergies 45 no 46/2007, ERRC v Bulgaria, the Committee again concluded to a case of prohibited discrimination because the state had failed to take appropriate (special) measures to address the exclusion, marginalization and environmental hazards which Romani communities96 are exposed to in Bulgaria, as well as the problems encountered by many Roma in accessing health care services.97 Similarly the European Committee on Social Rights underscored in its Interights v Greece decision that “in general but in particular in the case of Roma, merely ensuring identical treatment as a means of protection against any discrimination is not sufficient. In order to achieve equal treatment differences must be taken into account, in the instant case, there is no doubt that the Roma are in a different position”.98 While the UN Treaty bodies have not really identified a duty to adopt special measures as flowing from the prohibition of discrimination, they have identified duties to adopt positive action. The Racial Discrimination Convention even explicitly enshrines a duty to adopt positive action when circumstances so warrant.99 The Human Rights Committee has acknowledges this in its General Comment no 18 on non discrimination, while the Committee on Economic, Social and Cultural Rights has highlighted the obligation to ensure equal opportunities for minorities, including Roma, especially in relation to employment, housing, health and education,100 which it consolidated in its General Comment no 20 on Non- discrimination.101 Also the Committee on the Rights of the Child identifies the need to adopt positive action for vulnerable groups of children like Roma.102 In this respect it should be noted that the obligation to adopt special measures for Roma, identified in a collective complaint under the Revised

96 Several other Council of Europe bodies and institutions recognize that duties of differential treatment are in order for the Roma, considering the decades of discrimination and exclusion and their ensuing vulnerability: see inter alia PACE, Resolution 1740(2010), para 15.10. 97 European Committee on Social Rights, Complaint no 46/2007, para 48–51. 98 ECSR, Interights v. Greece, Complaint No. 49/2008, decision of 11 December 2009, para. 40. 99 See also P. Thornberry, ‘Confronting racial discrimination: a CERD perspective’, Human Rights Law Review 2005, 256. 100 See also W. Vanden Hole 2005, 234. 101 Committeee on Economic, Social and Cultural Rights, General Comment no 20, para 9 refers to an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination, and even adds that these special measures may exceptionally be of a permanent nature, ‘such as interpretation services for linguistic minorities…’. 102 Inter alia CRC, Concluding Observations on Slovakia, CRC/C/SVK/CO/2 (2007) para. 28. 46 kristin henrard

Social Charter, actually amounts to duties to adopt positive action. The Committee explicitly states in its decision on complaint no 31/2005 ERRC v Bulgaria that ‘Article E imposes an obligation of taking into due consideration the relevant differences and acting accordingly, this means that for the integration of an ethnic minority as Roma into mainstream society, measures of positive action are needed.’103 Arguably this amounts to a duty to adopt special measures to ensure effective social participation of the minority concerned.

c. Citizenship? By way of preliminary consideration the relevance of citizenship as a criterion or prerequisite merits some attention, both in relation to the definition of the concept minority, and to the enjoyment of fundamental rights. Whereas traditionally citizenship (and the related requirement of traditional, long lasting citizenship) has been considered a key characteristic of a person belonging to a minority, it has been increasingly accepted that also migrant groups could constitute ‘new’ minorities.104 Furthermore since nationality is merely one of the several factors that play a role in the ‘sliding scale approach’ and determine the strength of minority specific rights, the weight attached to citizenship as such is markedly reduced.105 This comes out clearly in the supervisory practice of the AC, who consistently invites states that have included a nationality requirement in their declaration concerning the scope of application ratione personae of the FCNM to adopt a more inclusive approach, and consider the rights of migrants at least on an article by article basis.106

103 European Committee of Social Rights, Complaint no 31/2005 ERRC v Bulgaria, para 42. 104 See several chapters in the edited volume on Double Standards pertaining to Minority Protection (K.Henrard ed.), Brill 2010: Asbjorn Eide, ‘Old v new minorities and minorities within minorities ‘The rights of ‘new’ minorities: scope and restrictions’; R. Medda-Windischer, ‘Changing Paradigms in the Traditional Dichotomy of Old and New Minorities’ … 105 For an extensive analysis and argumentation of the reduced relevance of nationality as marker for the determination of rights, see inter alia R. Medda-Windischer, Old and new minorities: Reconciling diversity and cohesion: a human rights model for minority integration, Nomos 2009. See also Yutaka Arai-Takahashi, ‘’Rationalizing the differentiations between ‘new’ and ‘old’ minorities? The role of the margin of appreciation doctrine in determining the scope of protection of minority rights’, in K. Henrard (ed.), Double Standards pertaining to Minority Protection, Brill 2010. 106 See inter alia A. Verstichel, ‘Personal Scope of Application: An Open, Inclusive and Dynamic Approach – the FCNM as a living instrument, in A. Verstichel et al (eds.), The Framework Convention for the Protection of National Minorities, Intersentia 2008, 127–158. about interrelations and synergies 47

Fundamental rights as rights one has because one is a human being, irrespective of particular characteristics, in principle also benefit non- citizens. Voting rights have been traditionally an exception, and to some extent it was also understood that states would be allowed to gear their progressive obligations in terms of socio-economic rights towards nationals. Similarly, because it is a crucial aspect of the sovereign powers of states to decide the conditions under which non-nationals can enter the country, nationality was traditionally considered as a relevant ground for differential treatment. In other words, nationality would not be a suspect ground of differentiation and the protection against differentiations on the basis of nationality rather minimal, especially concerning access to socio-economic rights.107 This was even explicitly acknowledged in particular instruments prohibiting and outlawing racial discrimination, where it was underscored that a differentiation on the basis of nationality would not be covered by this prohibition.108 In this respect, it should be highlighted that in her 2008 annual report, the UN Independent Expert on Minority Issues holds that citizenship is still very important for integration and full economic and social participation.109 Exactly because non citizens are particularly vulnerable to discrimination and cannot fully participate in economic and social life, States are urged not to use undue citizenship requirements, especially in the wake of the break up of states.110 The Commentary on the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities similarly underscores the need to reduce barriers to acquire citizenship for members of minorities since citizenship is an important condition for full and effective participation in economic and social life (para 50).111

107 See also S. Adelman, ‘Sovereignty, Citizenship and Socio-Economic Rights’, [www .conectas.org]. 108 See article 3,2 of the EU’s Racial Equality Directive, EC/2000/43, and article 1,2 of the UN Convention on the Elimination of All Forms of Racial Discrimination. 109 AC, Opinion on Austria (ACFC/INF/OP/I(2002)009), para 35. 110 AC, Opinion on The Former Yugoslav Republic of Macedonia (ACFC/INF/ OP/I(2005)001), para 37. AC, Opinion on Croatia (ACFC/INF/OP/II(2004)002), para 16, AC, Opinion on Slovenia (ACFC/INF/OP/II(2005)005), para 60. 111 UN Sub-Commission on the Promotion and Protection of Human Rights,Commentary Of The Working Group On Minorities To The United Nations Declaration On The Rights Of Persons Belonging To National Or Ethnic, Religious And Linguistic Minorities, 4 April 2005, E/CN.4/Sub.2/AC.5/2005/2, available at: http://www.unhcr.org/refworld/docid/43f30ac80 .html [accessed 13 July 2012], para 50. 48 kristin henrard

However, the supervisory practice of several monitoring bodies, both in the Council of Europe and the UN, reveals a gradual but unmistaken trend to qualify nationality as a suspect ground of differentiation, and/or acknowledge that nationality is not a relevant consideration for the effective enjoyment of one’s socio-economic rights. The UN’s Racial Discrimination Committee has increasingly narrowed the impact of article 2,3 CERD which excludes differentiations on the basis of nationality from the scope of the convention by recognizing that differentiation on the basis of nationality can amount to indirect racial discrimination.112 Similarly, the UN Committee on Economic, Social and Cultural Rights clarified in its General Recommendation no 20 on Non- discrimination in Economic, Social and Cultural Rights that: ‘The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documenta- tion’.113 The supervisory practice of the ICCPR’s Human Rights Commit tee critically evaluates differentiations on the basis of nationality and/or

112 The CERD Committee drastically reduces the permissibility of differential treatment on the basis of nationality in its General Recommendation no 30 on discrimination against non-citizens (in paragraph 2 and 4), in that it highlights that article 1, para 2 of the Convention should not undermine the basic prohibition of racial discrimination. This can be read to indirectly acknowledge the link with indirect discrimination on the basis of race. In this General Recommendation the Committee also emphasis the core rational of human rights as being in principle for everyone, irrespective of nationality (para 1–3) and even irrespective of immigration status (para 4, 7,9). The Committee underscores the special importance of particular socio-economic rights, like education, housing, employment and health, in respect of which no differentiation should be made on the basis of nationality (para 29–36). See also CERD Committee, Concluding Observations on Moldova, CERD/C/MDA/CO/7 (2008) para 10. In its concluding observations on Italy of 2008 the Committee ‘urges authorities to take measures to eliminate discrimination against non citizens in relation to working conditions and work requirements, including rules and practices with discriminatory purposes or effects (CERD/C/ITA/CO/15 (2008) para 17). See also Concluding Observations on Austria (CERD/C/AUT/CO/17(2008) para 20 in which the Committee notes that the lack of nationality can hinder effective access to economic and social life. At times the Committee even requests authorities to facilitate access to citizenship by long term residents, without banning double nationality: Concluding Observations on Germany, CERD/C/DEU/CO.18(2008) para 20. 113 Committee on Economic, Social and Cultural Rights, General Comment no 20, E/C.12/GC/20, para 30. about interrelations and synergies 49 disadvantageous treatment of non-citizens,114 also in relation to pension rights.115 It is striking that originally the European Social Charter did not exclude non-nationals as such but the Appendix to it did specify that only those foreigners would be protected ‘in so far as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned’. The European Committee on Social Rights has nevertheless chosen to explicitly override this restrictive stance in the name of ‘human dignity’ (using a teleological interpretation), ever since the landmark decision in International Federation of Human Rights Leagues (FIDH) v France, Complaint no. 13/2003. While this decision in effect concerned an illegal resident, this teleological reasoning would also enable foreigners from outside the Council of Europe (legal or illegal resident) to invoke the protection of the socio-economic rights enshrined in the Charter. Already since 1996 the ECtHR has developed a line of jurisprudence which is critical about differentiations on the basis of nationality, thus indicating that nationality is a suspect class. These cases concerned access to social assistance or social security at large, like emergency assistance under the employment ensurance act,116 allowance for disabled adults,117 access to the farmer social security scheme,118 pension rights119 and big family grants.120 The claimants in these cases were all foreigners with long lasting and legal ties with the countries of residence concerned. In these cases it seems in any event arbitrary (and thus unacceptable) to refuse persons access to entitlements they have (somehow) contributed towards. In other words, the supervisory practice of several human rights conventions has clarified that in principle non-nationals, and thus also migrant minorities, are entitled to socio-economic rights and participation. This raises the question whether access to social entitlements can be made dependent on fulfilling all kinds of integration requirements.

114 The HRC tends to be rather critical about differentiations on the basis of nationality since it scrutinizes justifications offered closely. See inter alia HRC< Karakurt v Austra, Comm. No. 965/00, para 8.4. See also W. VandenHole, Non-discrimination and Equality in the View of the UN Human Rights Treaty Bodies, Intersentia 2005. 115 HRC, Gueye v France, Communication No, 196/1985, para 9.4. 116 ECtHR, Gaygusuz v Austra, 16 September 1996, para 42. 117 EctHR, Koua Poirrez v France, 30 September 2003, para 46. 118 EctHR, Luczak v Poland, 27 November 2007, para 48. 119 EctHR, Andrejeva v Lativa, 18 Septembe 2009, para 87. 120 ECtHR, Fawsie v Greece, 28 October 2010, para 35. 50 kristin henrard

d. Political Participation as a Procedural Dimension of Socio-Economic Participation? When considering the various minority rights instruments that grant rights to effective participation in public life or in public affairs,121 it is striking that no particular definition is offered in these instruments. The monitoring practice has revealed that this concept indeed has a broad reach. It is striking that the Lund Recommendations on the Effective Participation of National Minorities in Public Life distinguishes two major dimensions: ‘participation in decision-making’ and ‘self-governance’. The participation dimension focused upon in this book clearly concerns the former dimension and thus on having a say. ‘Having a say’ does not only encompass participation in elected bodies, but also in executive bodies, the administration, law-enforcement institutions, public councils and the like, and even in advisory bodies122 or other consultation mechanisms.123 Of course, various degrees of having a voice need to be distinguished, more particularly in relation to the effective impact on the outcome of the decision making process. Consultation (and advise) may be on the low end of the ‘having a say’ ladder, but also here it all depends on several variables like the regular- ity of consultation and the actual impact of the advise provided.124 It is in any event striking that there is an increasing emphasis on consultation of minorities especially in relation to policies affecting them.125 Consultation between public authorities and minorities is clearly an important horizontal requirement in the FCNM in the sense that the AC considers consultation as an inherent component of all minority specific rights, consultation being important for the effective enjoyment of the rights concerned. This thus also applies to the right to participation in social and economic life.126 At the same time, and of special relevance for

121 See the CSCE Copenhagen Document, para 35 and article 15 FCNM, as compared to article 2(2) and(3) of the UN Declaration on Minorities. 122 A. Verstichel, Participation, Representation and Identity: the right of persons belonging to minorities to effective participation in public affairs: content, justification and limits, Intersentia 2009, 32. 123 K.Henrard, ‘‘Participation’, ‘Representation’ and ‘Autonomy’ in the Lund Recommendations and their Reflections in the Supervisory Practice of the FCNM and several Human Rights Conventions’, IJMGR 2005, 134. 124 Inter alia S. Wheatley, ‘Deliberative Democracy and Minorities’, EJIL 2003, 525–526. 125 See also F. de Varennes, Towards Effective Political Participation and Representation of Minorities, E.CN.4/Sub.2/AC.5/1998, WP.4, under structural mechanisms, viii and ix. 126 It needs to be aceknowledged though that in its Thematic Commentary on Effective Participation the AC does pay considerable attention to participation in socio-economic life (more particularly in Part III, 1), but in the corresponding pages the concept ‘consultation’ does not feature once. about interrelations and synergies 51 this edited volume, the central importance of consultation of minorities in relation to policies of direct or indirect relevance to them has been explained by its double effect of enhancing integration of minorities while strengthening their own, separate identity.127 Consultation at first sight seems a rather weak form of ‘having a say’ but throughout the supervisory practice of the AC, additional guidance is provided to states about the for- mat and impact of these consultations, thus gradually boosting their status.128 Indeed, the AC has shown concern that consultation mechanisms take the minorities voice actually into account: not just listening but also trying to follow up. In this respect it has requested states to give reasons when advise of a minority consultative body is not followed.129 The practice of the HRC does reveal that the Committee considers consultation as a relevant factor to determine whether persons belonging to national minorities could sufficiently practice their traditional economic activities, as protected by article 27 ICCPR. However, its jurisprudence in this respect has triggered various criticisms in the sense that it would not provide appropriate protection for the claimant minorities, inter alia because of the lack of scrutiny of the effectiveness of the consultations invoked by the authorities to justify its policies and activities. In the Lansmänn cases, the HRC takes into account the fact that the Sami community had been consulted as a factor making the interference reasonable, notwithstanding the fact that the Sami themselves denied having meaningfully participated in the decision making process.130 Similar issues feature in the Mahuika et al v New Zealand131 case, concerning a complaint by some Maori that they were unable to freely pursue their economic and social development following a deed settling the fishing quota for the Maori at large. Again the HRC considered the opportunity to participate in decision making concerning measures which interfere with culturally significant economic activities as relevant to decide whether or not there has been a violation of their article 27 rights. This seems to disregard the problem of the minority within the minority which concerns have been passed over. Nevertheless, an important development in this case is

127 See also AC, Opinion on Moldova (2002), para 39–40; CERD Committee, Concluding Observations on Georgia, CERD/C/GEO/CO/4–5, para 15. 128 Inter alia A. Verstichel, ‘Elaborating a catalogue of Best Practices of Effective Participation of National Minorities’, European Yearbook on Minority Issues 2003/4. 129 AC, Opinion on Bulgaria, ACFC/OP/I(2006)001, para 66. 130 Compare HRC, Lansman I, para 9.6 with HRC, Lansman II, para 10.4. 131 HRC, Mahuika et al v New Zealand, 27 oktober 2000, no 547/1993, CCPR/C/ 70/D/547/1993. 52 kristin henrard that as a matter of relevant principles the HRC also considers it essential that the minority concerned continues to benefit from its traditional economy.132 In other words there must be some assurance of actual participation in economic life. In the more recent decision in Angela Poma Poma v Peru133 the HRC actually relies on the lack of consultation of the claimant community of alpaca and llama herding people in relation to the plans to construct wells on the territory where they breed their lama as one of the relevant criteria to conclude to a violation of article 27. It needs to be acknowledged though that the impact of the diversion of the groundwater from their land had destroyed the ecosystem and caused the drying out of the wetlands and an extensive part of their livestock. Hence the interference with their traditional economic activity, and thus also their way of life and culture, was extensive. The Committee even considered that they were no longer able to benefit from their traditional economic activity (para 7.7). In other words, because of the destructive effects of the state’s activities on the traditional activity, the Committee would have concluded to a violation of article 27 also if there would have been some consultation. Nevertheless, this decision makes clear that public authorities enhance their vulnerability to a finding of a violation of article 27 when they do not engage in consultations with minorities that are likely to suffer from planned public construction works. While the supervisory practice of the Committee on Economic, Social and Cultural Rights does not really contain relevant pronouncements, in the concluding observations of the Committee on the Elimination of all forms of Racial Discrimination one can find references to the need to consult with indigenous peoples on policies pertaining to them and even obtain their prior and informed consent. In its concluding observations on Vietnam the Committee calls on the state to pursue efforts, together with the communities affected, towards adequate resolution of land disputes.134 Against the background of persistent marginalization of the Aboriginal peoples in Canada, inter alia in respect of employment, housing, health and education, the Committee recommends that Canada, in consultation with the Aboriginal peoples concerned, implements and reinforces its existing programs to better realize the economic, social and cultural rights

132 Ibid, para 9.5. 133 HRC, Angela Poma Poma v Peru, Communication no 1457/2006, 27 maart 2009. 134 CERD Committee, Concluding Observations on Vietnam, CERD/C/VNM/CO/10–14, para 15. about interrelations and synergies 53 of Aboriginal peoples.135 Similary, in its concluding observations on Bolivia, the CERD Committee urges the state party to adopt mechanisms to ensure the participation of Afro-Bolivian communities in the design and approval of public policies and norms and in the implementation of projects affecting them.136

3. Socio-Economic Participation of Minorities: Synergies Between General Human Rights and Minority Specific Rights

This section will analyse (in terms of synergies between general human rights on the one hand and minority specific rights on the other) the following themes concerning socio-economic participation consecutively: employment, education, health care, housing and last but not least (especially concerning indigenous peoples) access to land. The analysis starts each time with the position of the FCNM’s Advisory Committee and then proceeds to the supervisory bodies of the Council of Europe’s and UN’s conventions on general fundamental rights.

a. Access to Employment Since the FCNM does not have explicit provisions on employment, the AC has to address this by way of interpretation, and this happens mostly on the basis of the equality provision in article 4 FCNM. The AC acknowledges the crucial importance of education as a prerequisite for access to employment. It highlights that effective and substantively equal access to education arguably has implications for working conditions, including equal opportunity for advancement.137 Furthermore, directly pertaining to employment possibilities, the exclusion of persons belonging to particular minorities from accessing key positions in public life is according to the AC problematic in terms of article 4.138 The AC also underscores the importance of keeping language requirement reasonable since overly demanding language requirements, which would hamper access to employment and social protection for persons

135 CERD Committee, Concluding Observations on Canada, CERD/C/CAN/CO/19–20, para 19. 136 CERD Committee, Concluding Observations on Bolivia, CERD/C/BOL/CO/17–20, para 14. 137 Inter alia AC, Opinion on Georgia (ACFC/OP/I(2009)001), para 130–132. 138 AC, Opinion on Bosnia Herzegovina (ACFC/INF/OP/I(2005)003), para 39; AC, Opinion on Estonia (ACFC/OP/III(2011)004), para 179. 54 kristin henrard belonging to minorities, and would amount to indirect discrimination in relation to access to employment.139 Similarly, the Committee on Economic, Social and Cultural Rights warns against strict language requirements that might inhibit effective access to public services by minorities, while underscoring the need for language courses to tackle the problem.140 The CERD Committee also recognizes the potential indirect discrimination inherent in disproportionate language requirements, while both that Committee and the HRC seem to go one step further by addressing the underlying problem of lack of adequate teaching of these official languages.141 The HRC proceeds from the premise that certain proficiency in the official language is legitimate to require to get access too good, quality jobs. However, it also acknowledges that is essential that the state ensures that everybody has substantively equal access to training in these languages.142 This issue is particularly problematic in relation to the civil service, because restricting the employment of members of minorities because they would not master the official language ‘enough’, at the same time inhibits the potential of the civil service to communicate with members of minorities in their own language and have the requisite affinity with their cultural needs.143 In other words, imposing disproportionate language requirements to become a civil servant restricts both access to employment (for the minority candidates) and access to public services (for the persons belonging to the related minority groups).144 Sometimes the AC goes as far as urging states to adopt positive action measures in order to counter the severe unemployment ratio of particular minorities. For example in relation to Ireland the AC urged the state to set

139 AC, Thematic Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs (ACFC/31DOC(2008)001), 19, providing as example Opinion on Azerbaijan (ACFC/INF/ OP/I(2004)001), para 79. 140 CESCR Committee, Concluding Observations on Latvia, E/C.12/LVA/CO/1 (2008) para 12 and 38. 141 CERD Committee, Concluding Observations on Latvia, CERD/C/LVE/CO/2 (2003) para 9; CERD Committee, Concluding Observations on Moldova, CERD/C/MDA/CO/7 (2008) para 18. 142 Inter alia HRC, Concluding Observations on Georgia, CCPR/C/GEO/CO/3 (2007) para 17. 143 The latter point is also taken up in the AC’s Commentary on Effective Participation where it underscores the importance of the use of the minority language, by public authorities for the effective access to public services under the same heading (ACFC/31doc(2008)001, para 40, 54, 55). 144 In the words of Allan Phillips: ‘the employment of minorities within public services can help ensure that service delivery is sensitive to the linguistic and cultural needs of a community, while showing a shared ownership of education, health care, social services…’: Phillips 2003/4, 103. about interrelations and synergies 55 targets to include Travellers in general recruitment strategies,145 implying a duty to undertake positive action in their regard.146 Also the UN treaty bodies identify positive state duties to combat discrimination against persons belonging to minorities in employment, so as to ensure their equal access. The Human Rights Committee expresses concern about the under- representation of minorities in the civil service and the army, and consequently calls on the state concerned to give minorities means for better representation in public life and positions of responsibility.147 The Com mittee on Economic, Social and Cultural Rights even identifies duties to adopt positive action measures to obtain an ethnically balanced work force and this not only for the public but also for the private sector.148 Unsurprisingly, there is special attention for Roma, and the Committee identifies various supportive measures that could be undertaken by states, even financial incentives to employers to hire Roma etc.149 The CERD Committee similarly urges states to ensure adequate representation of minorities in public service, which might require positive action.150

b. Genuinely Equal Access to Education It is first of all important to identity all the relevant issues in relation to equal access to education. The Advisory Committee (FCNM) acknowledges in its Thematic Commentary on Education that equal access to education does not only concern physical access but also broader issues important for genuine access to education.151 Lack of physical access to education can result from blatant refusals to register persons belonging to minorities (as is known to happen with Roma),152 but also from the lack of

145 AC, Opinion on Ireland (ACFC/INF/OP/I(2004)003, para 37. 146 See also AC, Opinion on Estonia (ACFC/OP/III(2011)004), para 174; AC, Opinion on Georgia (ACFC/OP/I(2009)001), para 128. 147 HRC, Concluding Observations on Togo (CCPR/C/TGO/CO/4), para 21. 148 CESCR, Concluding Observations on Costa Rica, E/C.12/CRI/CO/4 (2008) para 39. 149 CESCR, Concluding Observations on the Former Yugoslav Republic of Macedonia, E/C.12/MKD/CO/1 (2008), para 12; CESCR, Concluding Observartions on Hungary, E/C.12?HUN/CO/3 (2008) para 12 and para 34. See particularly the concluding observations on Ukraine 2008, para 37. 150 CERD Committee, Concluding Observations on Moldova, CERD/C/MDA/CO/7 (2008) para 16. 151 See also the Commentary of the AC on Education under the FCNM (ACFC/25DOC(2006)002) where the Committee acknowledges the link with articles 5 and 6 and the need to take identity features and encouragement of tolerance into account as regards the content of education and the choice of form and structures of education (at 10–11). See also ibid, 20–21. 152 AC, Opinion on Albania (ACFC/INF/OP/I(2003)004), para 59; AC, Opinion on Azerbaijan (ACFC/INF/OP/I(2004)001), para 41 (problems of non citizen Chechens). 56 kristin henrard adequate educational facilities, as in the case of the displaced Ingush and Chechen population in Ingusethia.153 The Human Rights Committee similarly addresses in terms of article 26 problems of unequal physical access to education services for indigenous communities.154 A minority specific problem of genuine equal access to education concerns problems with or lack or reduction of mother tongue education since this can have negative repercussions for educational achievements and thus for equal opportunities of access to higher education.155 The AC’s supervisory practice reveals that it is crucially aware of the importance of mother tongue education in order to realize genuinely equal access to education, and recognizes that the lack of an inclusive curriculum can similarly entail de facto unequal access to education.156 Language in education has not often been the subject of a complaint before the European Court of Human Rights. This is probably due to the stance the Court took in a very early judgment, namely the 1968 Belgian Linguistics Case where the Court summarily dismissed the complaint about a right to mother tongue education (education in the language of choice) as this would not fall within the scope of application of the education (or any other) article of the Convention.157 In the 2001 judgment in the Cyprus v Turkey case the Court seems to nuance its stance somewhat in the sense that it clearly attaches more weight to the parents’ convictions as to the preferred medium of instruction. 158 It remains to be seen though whether and to what extent the Court will ever read a right to mother tongue education in the Convention in order to realize effective access to education. The UN Declaration does not elaborate on the (wish for an inclusive) curriculum but does highlight the importance of mother tongue education where feasible, depending on the numbers and territorial concentration of the groups concerned.159 Several UN treaty committees take up

153 AC, Opinion on the Russian Federation (ACFC/INF/OP/I(2003)005), para 90. 154 HRC, Concluding Observations on Panama, CCPR/C/PAN/CO/3 (2008) para 21. 155 AC, Opinion on Estonia (ACFC/INF/OP/I(2002)005), para 47. See also AC, Opinion on Poland (ACFC/INF/OP/I(2004)005), para 84; AC, Opinion on Italy (ACFC/OP/ III(2010)008), para 202–209. 156 AC, Commentary on Education under the FCNM (ACFC/25DOC(2006)002), 16 and 21 where it underscores that the ‘existence of education or some levels of education exclusively in the official language may be blocking the access to education for children belonging to national minorities’. See also ibid. at 20 where the AC underscores that minority languages should be treated as part of the linguistic and cultural wealth of a State. 157 ECtHR, Appl. No. 1474/62, Belgian Linguistics Case, judgment of 23 July 1968, para 3. 158 ECtHR, Cyprus v. Turkey, para 278. 159 Article 4(3) UN Minorities Declaration. about interrelations and synergies 57 these argumentation lines, albeit in different degree of explicitness and detail. The CERD committee recognizes the importance of inclusion of Roma language and culture in the curriculum as important means to ensure genuinely equal access to education.160 It also applies this line of jurisprudence to other minorities, like the ethnic minorities in Vietnam, in Turkmenistan, in Albania, and in Australia, to name but a few.161 The Committee also urges states to promote intercultural education, in order to ensure effective access to education by minorities.162 The HRC, again on basis of the general prohibition of discrimination in article 26, notes both the importance of an inclusive curriculum and mother tongue education for effective access to education, and identifies the concomitant state obligations.163 The Committee on Economic, Social and Cultural Rights highlights the importance of mother tongue education in its concluding observations while identifying the need to have appropriate textbooks and suitably qualified teachers.164 Its General Comment on Education indicates that education should be culturally appropriate for minorities and indigenous peoples. This would arguably imply that the curriculum is suitably adapted so as to also reflect their culture.165 Also the Committee on the Rights of the Child is a staunch supporter of mother tongue education and multicultural education because this would be essential for effective access to education.166 A striking similarity in regard to education is the adoption of a holistic approach to questions of effective, actual access to education, which

160 CERD Committee, Concluding Observations on Moldova, CERD/C/MDA/CO/7 (2008) para 19; Concluding Observations on Sweden, CERD/C/SWE/CO/18 (2008) para 18. 161 CERD Committee, Concluding Observations on Vietnam, CERD/C/VNM/CO/10–14 (2012), para 14; CERD Committee, Concluding Observations on Turkmenistan, CERD/C/ TKM/CO/6–7 (2012), para 20; CERD Committee, Concluding Observations on Albania, CERD/C/ALB/CO/5–8 (2011), para 16.; CERD Committee, Concluding Observations on Australia, CERD/C/AUS/CO/15–17 (2010), para 21. 162 See inter alia CERD Committee, Concluding Observations on Italy, CERD/C/ITA/ CO/16–18 (2012), para 20. 163 Inter alia HRC, Concluding Observations on Austria, CCPR/C/AUT/CO/4 (2007) para 21; HRC, Concluding Observations on the Islamic Republic of Iran (CCPR/C/IRN/ CO/3), para 30. 164 CESCR Committee, Concluding Observations on the Former Yugoslav Republic of Macedonia, E.C.12/MKD/CO/1 (2008) para 28, 48; CESCR Committee, Concluding Observations on Hungary, E/C.12/HUN/CO/3 (2008) para 28 and 51. 165 CESCR Committee, General Comment on the Right to Education, E/C.12/1999/10, para 50. 166 Inter alia CRC Committee, Concluding Observations on Thailand (CRC/C/THA/ CO/3), para 68, 82–83; CRC Committee, Concluding Observations on Panama (CRC/C/ PAN/CO/3), para 63; CRC Committee, Concluding Observations on the Former Yugoslav Republic of Macedonia (CRC/C/MKD/CO/2), para 84. 58 kristin henrard would also necessitate financial support for (Roma) for school books, transport and other indirect costs of schooling as well as the related duty to address socio economic difficulties of parents. This is indeed not only present in the supervisory practice of the AC, but also of the CERD committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child.167 Another welcome synergy that can be traced in relation to equal access to education of minorities is a very strong stance against any form of segregation in the sense of not integrated education. The AC strongly rejects segregation in education.168 Not only having special schools for particular minority groups but also having special classes is to be avoided because separate education for one particular minority risks placing the children concerned at a disadvantage.169 The disapproval extends even to special education groups within the public school system aimed at providing additional support to the pupils concerned.170 According to the AC giving special support to particular minority students, should be done in a way which does not hamper their being educated together in an integrated environment, this being in their long term interest.171 Especially since 2006, the European Court on Human Rights has had to pronounce several times on complaints about segregated education for Roma. It is exactly in this process that the Court has made important progress concerning the adjudication of cases on indirect discrimination. In several European countries Roma children are disproportionately represented in so-called special schools, either because they would be mentally retarded, or because their proficiency in the medium of instruction would

167 Inter alia AC, Thematic Commentary on Education, 18–21; CERD Committee, Concluding Observations on Norway, CERD/C/NOR/CO/19–20 (2011), para 9; CERD Committee, Concluding Observations on Poland, CERD/C/POL/CO/19 (2009), para 5; CERD Committee, Concluding Observations on Moldova, CERD/C/MDA/CO/7 (2008) para 19; CESCR Committee, Concluding Observations on France (E/C.12/FRA/CO/3 (2008) para 28; CRC Committee, Concluding Observations on the UK, CRC/C/GBR/CO/4 (2008) para 66; CRC Committee, Concluding Observations on the Czech Republic ( CRC/C/ CZE/CO/3–4), para 61; CRC Committee, Concluding Observationson Finland (CRC/C/FIN/ CO/43), para 53. 168 For a condensed review of the AC’s relevant pronouncements prior to 2006, see the Thematic Commentary on Education, especially at 17 and 21. 169 AC, Opinion on Sweden (ACFC/INF/OP/I(2003)006), para 53; AC, Opinion on Poland (ACFC/OP/II(2009)02), para 163–164. 170 AC, Opinion on Finland (ACFC/INF/Op/I(2001)002), para 37. 171 AC, Opinion on Ireland (ACFC/INF/OP/I(2004)003, para 85. about interrelations and synergies 59 not be adequate (and this could be remedied in the special schools/ classes). While the factual situations are not identical, the tests used to put Roma in separate schools are not transparent and definitely do not take into account t heir distinctive cultural background. It is in any event striking that the result of these tests is that the overwhelming majority (if not the totality) of pupils in these special schools are Roma. Furthermore, when Roma are put in separate schools because of their lack of linguistic proficiency in the medium of instruction, nothing tends to be done in these special schools to improve that proficiency. While the Court in its first judgment in DH et al v Czech Republic and in Orsus et al v Croatia concluded to the absence of discrimination in access to education, the Grand Chamber reversed this reasoning.172 In both cases the Grand Chamber critically dismissed the attempt to justification by the Government: it did not accept the lack of language skills as the cause for the segregated education in Orsus; and highlighted the problematic nature of the tests used to place children in separate schools for retarded children, as well as the impoverished curriculum in D.H. The Committee on the Rights of the Child also underscores the importance of integrated education and urges states to resist any form of segregation.173 Also the HRC agrees with the AC that while Roma might have special educational needs these can and should be tackled without making use of segregationist measures.174 Finally, the Racial Discrimination Convention is rather explicit about segregation and targets this in Article 3 CERD as a most problematic form of prohibited discrimination, while identifying a state duty to actively counteract de facto segregation.175

172 See inter alia K. Henrard, “Een zoektocht naar een beter inzicht van en adequaat toetsingsmodel voor indirecte discriminatie’: noot bij EHRM (Grote Kamer) van 13 november 2007: D.H. et al t. Tsjechië”,33 NJCM-Bulletin 2008, 242–250; Marija Davidovic, “Onderwijs in de marge – een verdeeld Hof stelt eisen aan etnische segregatie: EHRM (Grote Kamer) Orsus t. Kroatië (16 maart 2010)”, 35 NJCM-Bulletin 2010, 520–532. 173 CRC, Concluding Observations on Bulgaria (2008) para 56; CRC Committee, Concluding Observations on the Czech Republic (CRC/C/CZE/CO/3–4), para 30. 174 HRC, Concluding Observations on Czech Republic, CCPR/C/CZE/CO/2 (2008) para 17. See also HRC, Concluding Observations on Slovakia (CCPR/C/SVK/CO), para 17. 175 Inter alia CERD Committee, Concluding Observations on the Czech Republic, CERD/C/CZE/CO/8–9 (2011), para 12; CERD Committee, Concluding Observations on Serbia, CERD/C/SRB/CO/1 (2011), para 15. See also CERD Committee, General Recom mendation no 19 on Racial Segregation and Apartheid. 60 kristin henrard

c. Access to Housing Also in relation to housing the precarious accommodation of Roma and the discrimination they face in this respect are singled out.176 Particularly problematic is the lack of clear legal status of their settlements and the lack of resources.177 The FCNM’s AC actually identifies duties of result aimed at effective access to adequate housing, in the sense that states have to end discriminatory practices in this sphere and need to promote equal access to adequate housing, inter alia by improved access to subsidized housing.178 This line of reasoning can also be found in several collective complaints under the Revised Social Charter in relation to Roma, Travellers and migrants (the new minorities). In relation to complaint no 27/2004, ERRC v Italy, the supervisory Committee underscores that the ‘failure to take into consideration the different situation of Roma or to introduce measures specifically aimed at improving their housing conditions, including the possibility for an effective access to social housing’ amounts to a violation of the prohibition of discrimination in relation to the housing provision of the Charter.179 The fact that the current legislation on the legalization of dwellings affects Roma families in a disproportionate manner also amounts to a prohibited form of discrimination in relation to housing according to the committee.180 Having proper legislation in place to ensure an adequate number of permanent camp sites for Travellers does not prevent a finding of prohibited discrimination if there is a persisting failure of the local authorities to realize these sites. In these circumstances there would still be a failure to take into account to a sufficient degree the specific needs of the Roma/Traveller community.181 The ECtHR’s jurisprudence pertaining to the problems Roma encounter in relation to their wish to live in caravans, has entailed a very important line of jurisprudence following which it recognizes that states are obliged to facilitate the Gypsy way of life, and are supposed to take their special concerns and needs into account when devising and implementing

176 See also supra on Roma, AC, Opinion on Bulgaria (ACFC/OP/I(2006)001), para 36,; AC, Opinion on Croatia (ACFC/INF/OP/I(2002)003), para 28; AC, Opinion on Sweden (ACFC/INF/OP/I(2003)006), para 74. 177 AC, Opinion on The Former Yugoslav Republic of Macedonia (ACFC/INF/ OP/I(2005)001), para 31; AC, Opinion on Serbia (ACFC/OP/II(2009001), para 77–79. 178 AC, Commentary on Effective Participation, 20. 179 European Committee of Social Rights, Complaint no 27/2004, ERRC v Italy, para 46. 180 European Committee of Social Rights, Complaint no 32/2005.55–56. 181 European Committee of Social Rights, Complaint no 39/2006, para 167. about interrelations and synergies 61 legislation. However, the de facto protection pertaining to access to housing flowing from this line of jurisprudence, which links identity and way of life clearly to the socio-economic right to housing, has been rather poor, because ultimately states are granted an extensive margin of appreciation in the matter.182 The HRC and CERD Committee express concern about the de facto segregation and other forms of discrimination related to housing encountered by the Roma minority. In this respect also substandard housing conditions that Roma often have to endure are mentioned.183 Furthermore, states may have legitimate reasons to address illegal housing, but they also need to identify and provide alternative, culturally appropriate housing for Roma/Travellers who are so targeted.184 CERD/C furthermore urges the Canadian government to construct homes for particular vulnerable indigenous peoples so as to tackle their extreme poverty level and margin- alisatoin, due to structural discrimination.185

d. Access to Health Care Services Effective access to health services does not come up a lot in the work of the AC but if it does it is in relation to Roma, as one of the dimensions of systemic discrimination (and disadvantages) suffered by this group.186 Similar lines of reasoning can be found in terms of the Revised Social Charter, and more particularly concerning complaint no 46/2007, ERRC v Bulgaria, where the Committee concludes to a violation of the prohibition of discrimination in relation to the right to access to health care because the state has not met its positive obligation to ensure that Roma enjoy an adequate access to health care, in particular by failing to take reasonable steps to address the specific problems faced by Roma communities.187 The Committee even points to the need to undertake awareness raising

182 For a more extensive analysis, see K. Henrard (yearbook). 183 Inter alia CERD Committee, Concluding Observations on Slovenia, CERD/C/SVN/ CO/6–7(2010), para 10; HRC, Concluding Observatios on Moldova, CCPR/C/MDA/CO/2 (2009), para 27. 184 Inter alia CERD Committee, Concluding Observations on the UK, CERD/C/GBR/ CO/18–20 (2011), para 28. 185 CERD Committee, Concluding Observations on Canada, CERD/C/CAN/CO/19020 (2012), para 19. 186 Inter alia AC, Opinion on Moldava (ACFC/INF/OP/II(2004)004), para 45–47. See also AC Opinion on Norway (ACFC/OP/II(2006)006), para 145, AC Opinion on Spain (ACFC/ OP/II(2007)001), para 47–49; AC, Opinion on Portugal (ACFC/INF/OP/I(2006)002, para 42; AC, Opinion on the Slovak Republic (ACFC/OP/III(2010)004), para 176. 187 European Committee on Social Rights, Complaint no 46/2007, ERRC v Bulgaria, para 49–51. 62 kristin henrard campaigns for the Roma population, and also takes into consideration the more general problems of Roma in society, like marginalization and exposure to environmental hazards, which would not have been appropriately addressed.188 Arguably this points towards a holistic approach to the right to access to health care (as well). The ECtHR so far ruled on one explicit complaint about forced steriliza- tion of a Roma woman in VC v Slovakia on 8 November 2011. While the Court is extremely critical of the circumstances under which so-called consensual sterilizations take place, and concludes to a violation of article 8 because of the lack of effective legal safeguards to protect the reproduc- tive health of Roma women,189 it refuses to examine separately the discrimination complaint because it would not be necessary.190 This can surely be considered a missed opportunity to address a severe instance of deprivation of a socio-economic right related to the own, separate identity of the Roma, especially since the language used by the Court clearly points in the direction of a prohibited discrimination. The HRC, once again in terms of the general prohibition of discrimination, underscores the state obligation to counter unequal access to health services for indigenous communities.191 The Committee on the Rights of the Child exhibits a good understanding the possible link between the language in which health services are provided and effective access to health care, where it expresses concern that Roma and Sami children do not receive health care services in their own language.192 Similarly the CERD Committee welcomes the efforts of Colombia and Guatemala to provide culturally sensitive health care coverage for indigenous peoples but is concerned at the low health indicators. In this respect it calls on the government to devise a comprehensive strategy, which continues to respect the cultural identity of the groups concerned.193 Furthermore, General Comment no 14 of the Committee on Economic, Social and Cultural Rights underscores that health services need to be culturally appropriate in order to fulfill the acceptability requirement

188 Ibid., para 48 and 51. 189 Note that also CERD Committee and HRC express concerns about forced sterilizations of Roma woman in Slovakia: CERD/C/SVK/CO/6–8 (2010), par 18; HRC, Concluding Observations on the Slovak Republic, CCPR/C/SVK.CO (2011), para 16. 190 ECtHR, VC v Slovakia, 8 November 2011, para 145–155 and 179–180 respectively. 191 HRC, Concluding Observations on Panama, ICCPR/C/PAN/CO/3 (2008) para 21. 192 CRC Committee, Concluding Observations on Finland (CRC/C/FIN/CO/43), para 63. 193 CERD Committee, Concluding Observations on Colombia, CERD/C/COL/CO/14 (2009), para 22; CERD Committee, Concluding Observations on Guatemala, CERD/C/ GTM/CO/12–13 (2010), para 13. about interrelations and synergies 63

(para 12) and also has extensive attention for the situation of indigenous peoples in this respect. The General Comment contains quite a lengthy paragraph (27) on specific attention points, arguably related to their disproportionate disadvantages in this respect. It underscores inter alia that ‘indigenous peoples have the right to specific measures to improve their access to health services and care. These health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines. States should provide resources for indigenous peoples to design, deliver and control such services so that they may enjoy the highest attainable standard of physical and mental health. The vital medicinal plants, animals and minerals necessary to the full enjoyment of health of indigenous peoples should also be protected.’ Arguably, this concern for effective access also takes into account identity related considerations (see also infra). In its General Comment nr 15 on the right to water the Committee on ESC Rights requires states to give special attention to groups with traditional problems in relation to access to water and explicitly mentions minorities and indigenous peoples. This is undoubtedly important to improve their social participation.

e. Access to Land Access to land can be a key factor to ensure effective participation in social and economic life as the AC noted in relation to Ukraine’s Crimea.194 Countering discrimination in relation to land privatization195 or adequate access to land distribution schemes are similarly essential when land constitutes an important source of income.196 For indigenous peoples, like the Sami, ownership of their ancestral lands are extremely important and any disputes in this respect should be resolved as soon as possible.197 While no explicit synergies can be identified in the supervisory practice of other bodies, the Committee of Economic, Social and Cultural Rights does underscore the importance of recognizing land rights for indigenous peoples.198 Similarly, the HRC expresses concern that indigenous groups have

194 AC, Opinion on Ukraine (ACFC/INF/OP/I(2002)010), para 74. 195 AC, Opinion on Armenia (ACFC/OP/II(2006)005), para 47; AC, Opinion on Slovenia (ACFC/OP/III(2011)003), para 47. 196 AC, Opinion on Albania (ACFC/INF/OP/I(2003)004), para 28. 197 AC, Opinion on Finland (ACFC/INF/Op/I(2001)002), para 22; AC, Opinion on Finland (ACFC/OP/III(2010)007), para 56. 198 The CESCR Committee criticizes for example Finland because of the lasting uncertainty of ownership of land in the Sami Homeland, which has negative repercussions for their right to maintain and develop their traditional culture and way of life, particularly 64 kristin henrard been the target of violence and have been forcibly evicted from their ancestral lands, simply in order to control natural resources. Hence, the HRC urges the state to safeguard the communal property of indigenous peoples.199 The CERD Committee demands the Lao People’s Democratic Republic to review its land regime and recognize the cultural aspect of land as an integral part of the identity of some ethnic groups, while the Committee requires that prior and informed consent is respected in the planning and implementation of projects affecting the use of their lands and resources.200 The CERD Committee is also very critical of Israel’s planning and zoning policy in the West Bank as this fails to recognize Palestinian and Bedouin rights to property, access to land and access to natural resources.201

4. The Interrelation of Socio-Economic Participation and Identity, and the Protection of (the Viability of) Traditional Economic Activities

It is important to mention that also this economic and social participation dimension has a not negligible link with culture and more obvious identity issues, both indirectly and directly. Indirectly, it can be argued that a lack of participation in social and economic life and the related marginalization erode the minorities’ possibility to preserve their own way of life.202 More directly, it is obvious that traditional economic activities should be accepted as a component part of their own, distinctive culture, reindeer herding (E/C.12/FIN/CO/5 (2008) para 11). Particularly when about half of the indigenous people do not have legal title to their lands, the Committee even urges states to direct land restitution programs so as to give due consideration to the right of indigenous peoples to their ancestral lands, which is qualified as being essential for their survival (Concluding Observations on Paraguay, E/C.12/PRY/CO/3 (2008) para 18 and 34; Concluding Observations on Bolivia, E/C.12/BOL/CO/2 (2008) para 46. 199 HRC, Concluding Observations on Argentina (CCPR/C/ARG/CO/4), para 25; HRC, Concluding Observations on the Russian Federation (CCPR/C/RUS/CO/6 ), para 28. 200 CERD Committee, Concluding Observations on the Lao People’s Democratic Republic, CERD/C/LAO/CO/16–18 (2012), para 15 and 17. In relation to Surinam the CERD Committee highlights the importance of having a legislative framework that adequately guarantees the rights to land and communal resources of indigenous and tribal peoples, while confirming the importance of prior and informed consent before concessions are granted that might impact on ancestral lands of indigenous peoples: CERD Committe, Concluding Observations on Surinam, CERD/C/SUR/CO/12 (2009), para 12–14. 201 CERD Committee, Concluding Observations on Israel, CERD/C/ISR/CO/14–16 (2012), para 25. 202 Salomon 2007, 432–434. See also in this respect the 2006 report of the European Commission entitled ‘The aspect of culture in the social inclusion of ethnic minorities’, about interrelations and synergies 65 while the connection between indigenous peoples203 and their ancestral lands engages similar identity concerns.204 The positive duty to protect the minority identity and culture, which is enshrined in minority specific instruments like article 27 ICCPR, the UN Declaration and the FCNM, is in two ways important: first of all there should not be undue limitations on the exercise of these traditional activities; secondly this duty also impose certain limits on the way in which the state pursues its own economic activities. This has to be done in a way that ensures that in so far minorities are affected by these economic activities (e.g. logging in relation to reindeer breeding) they can still continue to enjoy their own traditional way of life.205 In relation to the first dimension, it can be pointed out that the positive duty in article 5 FCNM has indeed led the AC to address questions about traditional economic activities that are intrinsically related to the minorities’ culture.206 The presumption is that these traditional economic which assesses the impact of cultural policies of states in relation to the social inclusion of minorities. 203 See also the American Commission and Court on Human Rights, who have exhib- ited special attention for the needs of indigenous peoples having suffered discrimination and de facto being confronted with several socio economic disadvantages. See inter alia a recommendation of the Inter-American Commission on Human Rights to Colombia in relation to its finding that the constitutional rights of Colombian indigenous communities to communal property and political participation were violated in practice (Second Report on the Situation of Human Rights in Colombia, 233–244, 251). The recommendation that the authorities take the necessary measures to enable the ethnic and minority groups concerned to survive and develop arguably has also socio-economic implications. The Commission has become increasingly protective of indigenous peoples in the petitions (complaints) procedures, arguably surpassing the protection offered by the HRC. In a case reminiscent of the Sami cases before the HRC, pertaining to the Yanomami Indians in Brazil, the Commission concluded that the authorities had not sufficiently protected the Indians against the destruction of their ancestral lands through settler invasion and natural resource exploitation. The authorities were also required to adopt protective measures pertaining to land tenure and control, touching on essential identity aspects (case 7615, Annual Report 1996; Ecuador, Yanomami Report, 9, OEA/Ser.L/v/II.66 Doc. 10 Rev.1.Res 12/85 (1986). For a more extensive analysis see L.A. Thio 2002, 431–432). An interesting development here has been the progressive interpretation of right to property so as to accommodate and protect communal use of ancestral lands (Inter-American Court on Human Rights, Mayagna (sumo) Awas Tingni Community v Nicaragua, 31 August 2001, Serie C no 79. See also Moiwana Village v Suriname, 15 June 2005, Series C, no 124, para 133). 204 As will be elaborated upon below, the Human Rights Committee has in terms of article 27 ICCPR equated traditional economic activities as essential elements of minority (indigenous) culture. See also Salomon, 434. 205 HRC, Communication No 511/1992, Länsman et al v Finland, UN Doc. CCPR/C/52/D/511/1992 (1994), para 9.8. 206 AC, Opinion on Finland (ACFC/INF/OP/I(2001)002), para 22. See also AC, Commentary on Effective Participation, 18–19: the Commentary confirms under the heading of participation in social and economic life that traditional economic activities, and 66 kristin henrard activities are indeed protected by article 5. The AC furthermore does not shy away to touch on the intertwined question concerning land rights.207 Problems in available accommodation/inadequate stopping sites for Travellers,208 and regulation of their itinerant trade, a typical component of way of life of Travellers,209 are also assessed here, as these ‘housing manifestations’ are intrinsically related to minorities’ identity.210 Similarly, a steady line of jurisprudence reflected in the HRC’ General Comment on article 27 concerns the recognition, also detected in the quasi jurisprudence of the AC, that the right to enjoy one’s own culture includes the right to exercise and benefit from traditional economic activities, like hunting and fishing. Actually, this provision has been mostly applied in relation to indigenous people, like the Sami in the Scandinavian countries.211 However, the Decisions of the HRC in complaints proce dures have traditionally revealed that the effective protection of the right to a traditional way of life is rather weak because the Committee tends to grant states an extensive margin of appreciation (leading to a finding that the interference is legitimate). In more recent years the Human Rights Committee has largely followed its preceding jurisprudence which acknowledges a rather broad scope of application for article 27, including the right to exercise and benefit from these are component parts of the right to identity, and the related right to an own way of life. These economic activities are thus protected in terms of article 5. 207 The problems of the Sami are noted in relation to several Scandinavian countries: Norway (ACFC/INF/OP/I(2003)003), para 32, Sweden (ACFC/INF/OP/I(2003)006), para 30 208 AC, Opinion on Ireland (ACFC/INF/OP/I(2004)003), para 48; AC, Opinion on UK (ACFC/INF/OP/I(2002)006), para 40–41. 209 AC, Opinion on Switzerland (ACFC/INF/OP/I(2003)007), para 34. 210 The central importance of the equality principle (enshrined in article 4) is also man- ifested because the issue of traditional economic activities is sometimes dealt with under article 4 instead of article 5 (AC, Opinion on Portugal (ACFC/INF/OP/I(2006)002), para 32). Similarly, the high level of unemployment of the Traveller community, related to the fact that their traditional areas of economic livelihood have been eroded, has led the AC to urge the Irish government in terms of article 4 to examine how to promote both traditional and new economic activities of Travellers (AC, Opinion on Ireland (ACFC/INF/OP/I(2004)003), para 35–36.). Sometimes the lack of stopping places for Roma is also critically assessesd in relation to article 4: AC, Opinion on Norway (ACFC/INF/OP/I(2003)003), para 23. The AC does not seem to have a consistent approach in this respect as is buttressed by the first opinion on Switzerland: while the problem of lack of stopping places are dealt with in terms of article 5, land use planning and commerce regulation that does not take into account specific characteristics of Travellers culture and way of life are criticized in terms of art 4: Switzerland (ACFC/INF/OP/I(2003)007), para 28. 211 HRC, General Comment no 23, para 7. See inter alia M. Scheinin, ‘The UN Covenant on Civil and Political Rights: Article 27 and other provisions’, in K. Henrard & R. Dunbar (eds.), Synergies in Minority Protection, CUP, 2008, 32–35. about interrelations and synergies 67 traditional economic activities, but which at the same time allows the state interests (in specific instances) to outweigh the interests of the minority concerned rather easily.212 The case of Angela Poma Poma v Peru, previously discussed, does demonstrate that in extreme cases of virtual destruction of the traditional economic activity concerned, the HRC does conclude to a violation of article 27. The supervisory bodies of other human rights conventions have exhib- ited similar, often extensive, attention for this problem. The Committee on Economic, Social and Cultural Rights has in any event urged states to recognize the indigenous peoples’ right to exercise traditional economic activities.213 It even added that states should develop a special intellectual property regime to protect collective rights of indigenous peoples, including their scientific products, like traditional medicine. Last but not least, also the European Court on Human Rights has recognized that right to one’s own traditional way of life is protected under the Convention and more particularly, article 8. So far this line of jurisprudence was confined to cases on Roma and their wish to live in caravans which is thwarted by the lack of camping sites and/or conflicts with existing land planning regulations (the Chapman line of cases). While there is not yet an actual case to confirm this, it can be argued that this right to one’s own traditional way of life would also include the right to engage in traditional economic activities.214 When turning to the second dimension of the positive duty to protect the minority identity which imposes limitations on the state authorities in the extent to which they can (allow) interfere with the exercise of the traditional economic activities of the minorities concerned, there is not that much to say about the supervisory practice under the FCNM. In its

212 For an overview of the older case law (from Kitok v Sweden, to the two Länsman et al v Finland decisions), see K. Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination, KLI 2000. 174–185. While the decision in Mahuika et al v New Zealand of 20 October 2000 (‘the State party has, by engaging itself in the process of broad consultation before proceeding to leg- islate, and by paying specific attention to the sustainability of Maori fishing activities, taken the necessary steps to ensure that the Fisheries Settlement and its enactment through legislation, including the Quota Management System’) seems justified, criticism can be formulated regarding the views expressed in Aerlea and Nakkalajarvi v Finland of 24 October 2001 and in Jonassen et al v Norway of 25 October 2002. While in the former the Committee could have given the benefit of the doubt to the minority instead of to the state (par 7.6), the inadmissibility decision in the latter was justly criticized in the Dissenting opinion by Henkin, Scheinin and Yrigoyen. 213 CESCR Committee, Concluding Observations on Finland, E/C.12/FIN/CO/5 (2008) para 11. 214 ECHR (Grand Chamber), Chapman v UK, 18 January 2001. 68 kristin henrard opinions on Finland and Sweden the Committee does urge the states to take care that the use of the land (adjacent to the land) where the Sami conduct their reindeer breeding should be carried out in a manner that does not threaten the maintenance of Sami culture.215 While it is not exactly the same, it seems relevant to note here that the AC’s Commentary on Effective Participation underscores that the preservation of the minority identity should not be forgotten or diminished because of concerns and policies aimed at integrating minorities in the overall economic development of society in terms of article 6.216 In relation to the supervisory practice under article 27 ICCPR, it was already noted that traditional economic activities have a sure place in the field of application of article 27. The HRC also underscores that states are obliged to pursue their own economic activities in a way that ensures that in so far minorities are affected by these economic activities (e.g. logging in relation to reindeer breeding) they can still continue to enjoy their own traditional way of life.217 However, it deserves repetition that the HRC is criticized for giving a lot of weight to concerns of states about their plans concerning economic development in the balancing process.218 There is less practice of the CERD Committee on this particular issue but it seems to adopt similar promising theoretical positions concerning the protection of the minorities’ own traditional activities and lands. Also this Committee recognizes that state economic activities like mining and logging can have problematic effects on indigenous peoples’ ancestral lands. The state is obliged to ensure that these effects are not unreasonable.219

5. The Interrelation Between Minorities’ Socio-Economic Participation and their Right to Identity: The Integration Lense

Integration does not feature explicitly as a fundamental right or as a relevant concern in the implementation of fundamental rights. With the

215 AC, Opinion on Finland, ACFC/INF/OP/I(2001)002, para 22; ACFC/INF/OP/ II(2006)003, para 55–56. See also AC, Opinion on Sweden, ACFC/INF?OP/I(2003) 006, para 30. 216 AC, Commentary on Participation, para 72. 217 HRC, Communication No 511/1992, Länsman et al v Finland, UN Doc. CCPR/C/52/D/511/1992 (1994), para 9.8. 218 See also the analysis in Henrard 2000, 178–185: discussing inter alia Kitok v Sweden, Lansman et al v Finland I and II. 219 CERD Committee, Concluding Observations on USA, CERD/C/USA/CO/6 (2008) para 29; CERD Committee, Concluding Observations on Russia, CERD/C/RUS.CO/19 about interrelations and synergies 69 exception of the Framework Convention for the Protection of National Minorities, the concept ‘integration’ does not even feature at all in fundamental rights instruments. Even in case of the FCNM, the relevant sentence is rather obscure, raising more questions than it answers about the interrelation of integration policies of a country and the duty under the FCNM to protect and promote the minority identity (article 5). Nevertheless, in line with the mounting public interest in and public debate on integration, it should be underscored that the concept integration does increasingly feature in the supervisory practice under these fundamental rights instruments. The following analysis will show that the supervisors are becoming increasingly explicit about their visions of integration, more particularly as related to socio-economic participation and identity of minorities. Furthermore, also in this respect several synergies can be identified. It was already highlighted that a general prohibition of discrimination allows supervisors of instruments that do not concern socio-economic rights nevertheless to touch on various aspects of socio-economic participation (in addition to education which also is included to some extent in the instruments in civil and political rights and in the minority specific instruments). Various pronouncements of supervisors underscore the crucial link between equality, the right to equal treatment and the prohibition of discrimination on the one hand and integration on the other. The CERD Committee underscores several times that effective integration of minorities presupposes effective protection against discrimination, particularly concerning socio-economic rights (of relevance to one’s socio-economic participation).220 This stance is backed by the Human Rights Committee, inter alia in its Concluding Observations on the Republic of Moldova.221 The opinions of the Advisory Committee of the FCNM also reflect the understanding that an effective protection against discrimination plays an essential role in improving the integration of the population groups concerned.222

(2008) para 24; CERD Committee, Concludign Observations on Ecuador, CERD/C/ECCU/ CO/19(2008) para 16. 220 Inter alia CERD Committee, Concluding Observations on Canada, CERD/C/ CANCO/19–20 (2012), para 16; CERD Committee, Concluding Observations on Bolivia, CERD/C/BOL/CO/17–20 (2011), para 14; CERD Committee, Concluding Observations on France, CERD/C/FRA/CO/17–19 (2010), para 13; CERD Committee, Concluding Observations on Finland, CERD/C/FIN/CO/19, para 19.. 221 HRC, Concluding Observations on Republic of Moldova, CCPR/C/MDA/CO/2, para 27. 222 AC, Opinion on Croatia, ACFC/OP/III(2010)005, para 89; AC, Opinion on Czech Republic, ACFC/OP/III(2011)008, para 53. 70 kristin henrard

The central importance of education in relation to integration of minorities constitutes another synergy in the ways in which various supervisors perceive ‘integration’. There is a clear synergy in the rejection by supervisors of segregated education, especially when it goes hand in hand with impoverished curricula for the Roma. The CERD Committee analyses the problems inherent in segregated education in terms of lack of trust and non-integration.223 That Committee also reveals an understanding that intercultural education, in which also minority cultures find their place, plays an essential role in the integration process.224 The Committee on the Rights of the Child highlights the interrelation between educational measures that facilitate diversity and inclusion on the one hand and integration of minorities on the other. In its Thematic Commentary on Education the AC promotes ‘integration in diversity’ which would imply that in education a balance should be struck between attention for a common language and common values on the one hand, and the protection of the separate identity of minorities on the other.225 Another synergy qua ‘visions of integration’ between the supervisory bodies studied here concerns the importance of learning and becoming proficient in the dominant languages.226 At the same time there is a shared concern about the danger that overly demanding linguistic requirements for access to jobs inhibits the (socio-economic) integration of linguistic minorities and migrants.227 The AC’s vision of integration is clearly integration without forced assimilation, where minorities can maintain their separate identity, and where states have certain positive obligations in that respect.228 This fits perfectly with the core foundational principles of the FCNM, which is all about promoting the separate identity of minorities and protecting minorities against forced assimilation. Nevertheless, further research is required to investigate not only how this plays out in relation to the multiple aspects

223 CERD Committee, Concluding Observations on Bosnia and Herzegovina, CERD/C/ BIH/CO/7–8 (2010). 224 CERD Committee, Concluding Observations on Argentina, CERD/C/ARG/CO/19– 20, para 19. 225 AC, Thematic Commentary on Education, 16. 226 Inter alia CERD Committee, Concluding Observations on Georgia, CERD/C/GEO/ CO/4–5, para 15; AC, Opinion on Moldova, ACFC/OP/III(2009)003, para 150. 227 Inter alia AC, Opinion on Estonia, ACFC/OP/III(2011)004, para 16. 228 See also K. Henrard, ‘Tracing visions on integration and/of minorities: an analysis of the supervisory practice of the FCNM’, International Community Law Review 2011 (special issue), 348. about interrelations and synergies 71 of socio-economic participation, but also what position other supervisory bodies will take in this respect.

Conclusion

Overall there is a high degree of convergence in the way and the extent to which the application of minority specific instruments and general human rights instruments address questions of socio-economic participation of minorities. The attention for minority specific characteristics and needs was not to be expected in relation to general human rights, while the detailed assessment of distinctive issues of socio-economic participation was not self evident in terms of minority specific instruments. In this way the case of socio-economic participation of minorities is a model example of the increasing synergy between general human rights and minority specific rights concerning minority protection. In terms of the two pillars for an adequate system of minority protection: both pillars seem to be moving towards each other in the kind of protection they are providing for minorities. Of course there are still differences of degree (in both respects of relative and expected focus and detail) but overall the similarities largely outweigh the differences. A second but less unexpected synergy concerns the population groups that receive special attention in this respect: the Roma and -to a lesser extent- indigenous peoples. Throughout the analysis of the supervisory practice also various interrelations were ‘exposed’ between identity features of minorities, and their right to identity on the one hand and several aspects of socio-economic participation on the other. While most extensive lines of jurisprudence exist concerning education (language and culture in education especially), similar concerns have been raised regarding effective access to employment and health care. Most often the hampered effective access of minorities to socio-economic rights and services is the result of the combination of invidious discrimination (disadvantageous treatment of a particular minority without justification) and lack of suitable adaptations/ accommodations of their separate identity aimed at substantive or real equality. Not granting particular minorities access to their ancestral lands is most often not so much inspired by resentment or prejudice (thus pointing to invidious discrimination) but rather by the wish to secure the state (economic) interests, notwithstanding the legitimate interests and concerns of some minorities. Israel seems to be the exception that proves the rule. 72 kristin henrard

Furthermore, the supervisory practice studied here revealed strong synergies between the visions on integration of the respective supervisory bodies, and more specifically the visions on how identity questions related to socio-economic participation influence the integration of the groups concerned. While more extensive research is needed before valid assessments can be formulated concerning the integration dimension, it is in any event striking that for both the integration and socio-economic participation perspective, the equality principle, and more particularly the effective protection against invidious discrimination, is key. The supervisors also share a balanced view on language requirements: knowing the dominant language is generally recognized as essential for integration purposes, but the linguistic prerequisites for access to employment should not be unreasonable (so as not to hamper the socio-economic integration of the minorities). In terms of education, there is a general rejection of segregated education, and a preference for educating the various groups together. This education should then follow an intercultural and bilingual trajectory so as to optimize the integration of the minorities and enhance social cohesion (implying an integrated society). While it is obvious that the socio-economic participation and the integration lenses show several parallels, there are also differences, or better there is complementarity (and added value). Indeed, in terms of socio-economic participation of minorities, the important role of respecting and promoting the minority identity is increasingly visible. However, in terms of ‘integration’ there is still extensive disagreement about the question whether full integration can be achieved when minorities’ right to identity is respected and protected. Further research is needed to trace the (evolving) visions on the relation between integration, socio-economic participation and the right to identity of minorities by supervisors of both general fundamental rights and minority specific instruments. CALIBRATING CULTURAL LENSES: SOCIO-ECONOMIC PARTICIPATION, IDENTITY AND MIGRATION POLICY SHIFTS

José-María Arraiza*

At each crossing, destiny jettisoned the ballast of one future to endow me with another. On each new shore, it attached to my name the name of a homeland left behind. Amin Maalouf, Leo the African

1. Introduction

My Yahoo inbox recently received a chain email from a friend in which an anonymous person who claimed to work in an office of the Spanish State Employment Service complained about a client of Moroccan origin. First, the complainant did not like the fact that the Moroccan had been naturalized after living ten years in Spain despite not speaking the Spanish language. After adding that he or she equally disliked those Germans living in Spain for years who did not learn Spanish, the email writer complained that this Moroccan migrant in question had abused the welfare system by working intermittently just as much time as needed – eighteen months – so as to receive a total of four years of unemployment benefits for him and his family (residing in Morocco), obtaining the Spanish nationality and then, as an EU citizen, leave for another European Union country in order to continue the scheme. The chain email urged the recipients to forward the message broadly so that it would “reach the right place” and “end this barbarity”. It ended with an interesting qualification: “equally shameful is the situation of those Spaniards by birth which follow the same dynamic” [of abusing unemployment benefits]. (Emphasis added). I responded to my friend arguing that in my view the case reflected an exception and not a rule and that most migrants worked hard and in worst conditions than non-migrants. My friend surprised me by responding that

* Senior Legal Adviser, OSCE High Commissioner on National Minorities. The views expressed here are exclusively personal and do not imply endorsement by the OSCE HCNM. 74 josé-maría arraiza first of all, she agreed with me. Secondly, she added, in her free time she was actually teaching Spanish to Moroccan migrants as a volunteer in an NGO. The ambivalent claims contained in the message relating the use and abuse of the welfare system, migrant language acquisition and citizenship status as well as my friends’ voluntary teaching the Spanish language to migrants reflect, in my opinion, a much wider ambivalence. They lead me to introduce a reflection on the fact that while class politics have been long overtaken by cultural politics, it is now not so clear what type of cultural politics European countries are heading towards.1 The theory of liberal multiculturalism, which until recently had gained acceptance -if only nominally- within Western European democracies, has been quite bluntly put into question by high level political leaders in relation to migrant integration. Developments such as 9/11, the global financial crisis, massive migration flows and the realization that migrant communities are not simply temporary foreigners but aspire to gain citizenship and settle permanently have shaken a previously tolerant attitude towards multiculturalism. This gradual and uneven policy change emphasizes – in my view sometimes beyond what is needed – migrants’ obligations towards integration, as opposed to the allegedly exclusive focus of multicultural policies in equality and the accommodation of diverse cultural identities within liberal values.2 The methods for the implementation of such integration policies range from positive reinforcement to punitive approaches. The latter include financial sanctions and/or conditioning entry, residence and/or naturalization to the migrant individual’s completion of a cultural and civic integration procedure based on language acquisition (sometimes attached to relatively costly and demanding learning schedules) and citizenship tests of various scopes.3 A debate on what kind of cultural, civic and socio-economic integration policies are needed in migrant-recipient European countries is thus ongoing. The debate is irremediably ambiguous in its terminology. The words ‘integration’, ‘assimilation’ and ‘multiculturalism’ are used in highly poly- semic ways due both to lack of consensus on their meaning as well as the fact that integration requirements for persons seeking naturalisation is

1 M. Hecter, ‘From Class to Culture’, 110:2 American Journal of Sociology (2004) 400–445, 413. 2 W. Kymlicka, Multicultural Odysseys, Navigating the New International Politics of Diversity (Oxford 2007), 175. 3 E. Collet, Immigrant Integration in Europe in a Time of Austerity, Transatlantic Council on Migration, Migration Policy Institute, March 2011. calibrating cultural lenses 75 less developed as a policy area –multiculturalism has traditionally tended to take for granted that the person is a citizen, though such tendency is increasingly questioned. Moreover, existing empirical data and method- ologies analyzing the impact of both measures involving cultural accommodation and those focused on newcomers’ integration responsibilities is unsatisfactory.4 While the discussion relates to a broader debate which concerns also national minorities and indigenous peoples and the future path of the various “multicultural odysseys”, I restrict the scope of this piece to ‘new minorities’ in Western Europe in light of the theme proposed by the October 2010 Minority Rights Network’s conference on “the Socio- Economic Participation of Minorities in Relation to their Right to Respect for Identity”.5 I briefly analyze some of the implications of the policy shift, in light of three themes often found in narratives on multiculturalism and integration: first, the existence of relevant coincidences between socio- economic and cultural groups (pertinent in the case of migrants); secondly, a linkage between socio-economic participation with cultural accommodation policies which I consider as a principle necessary; and thirdly a possible relation between socio-economic integration, cultural accommodation and the prevention of collective violence. I argue that better definition of terms and a calibration of the ‘cultural lenses’ through which groups are understood would improve the debate on multicultural policies in relation to migrant integration. In practical terms, it would facilitate a more rigorous evaluation of the impact of these policies. From a normative perspective, human rights principles such as freedom of opinion are necessary to balance integration policies. In addition, I reflect briefly on migration policy issues from a human security standpoint.

2. Cultural and Socio-Economic Groups

The rejection of multiculturalism in the context of migration policy refers to its alleged negative impact on socio-economic integration. An adequate analysis of such relation requires re-thinking the perspective taken on

4 W. Kymlicka, ‘Invited Symposium New directions and issues for the study of ethnicity, nationalism and multiculturalism. Multiculturalism in normative theory and social science’, 11:1 Ethnicities (2011) 5–11; R. Koopmans, ‘Trade-Offs between Equality and Difference: Immigrant Integration, Multiculturalism and the Welfare State in Cross-National Perspective, 3:1 Journal of Ethnic and Migration Studies (2010) pp. 1–26. 5 Kymlicka, 2007, supra note 2; Kymlicka, 2011, supra note 4. 76 josé-maría arraiza both the socio-economic and cultural dimensions of group formation. Any realistic view of social inequality and cultural diversity requires a multidimensional perspective on ethnicity, class, gender and other factors.6 Mono-dimensional categorisations and comparisons (i.e., exclusively based on ethnicity) usually rest on essentialist notions of group differences or ‘narrow identity politics’ whereby minority (and majority) ethnic groups are seen as politically congruent fixed homogeneous monolithic entities, disregarding any other consideration (e.g., gender, class, political orientation).7 Such a simplistic approach unfortunately influences narratives on multiculturalism and integration as well as their critics. Socio-economic status (i.e., class) and culture are cross-cutting principles of group formation: cultural groups contain members of different socio-economic level and vice versa.8 Said this, certain mutually reinforcing relations between socio-economic status and minority identity can be identified. Political processes may be shaped by demands for both material and symbolic equality.9 Thus, access to material resources influences the formation of ethnic and national identities. For example, the making of the political identity of the Dalits in India has been explained a as the result of practices of inequality and colonialism.10 In this sense, the construction of migrant minority identities is obviously shaped by economic relations arising from the socio-economic process of migration itself. Ethnicity serves as a focal point which facilitates the coordination of individual expectations on economic and social activities.11 Migrants in Western countries such as the Netherlands have been observed as forming compact socio-economic groups following ethnic

6 K. Crenshaw, ‘Mapping the Margins: Intersectionality, identity politics and Violence Against Women of Color, 43 Stanford Law Review (2001) 1241–1299. 7 P. Carter, S. Sellers & C. Squires, ‘Reflections on Race/Ethnicity, Class and Gender Inclusive Research’, African American Research Perspectives (2002) 111–124; E. Cole, ‘Coalitions as a Model for Inter-sectionality: From Practice to Theory’, 59 Sex Roles (2008) 443–453. J. Skovgaard, ‘From Bilateral Treaties to “Consociationalism Light”, The EU and the Promotion and Stabilisation of Conflict Settlements, University of Nottingham, England, 22–23 November 2007. 8 Hecter, 2004, supra note 1, 404. Michael Hecter uses the Weberian terminology of ‘class’ and ‘status groups’. 9 A. de Tocqueville, Democracy in America. Ed. J.P. Mayer. Trans. George Lawrence. New York: Harper and Row, 1998 (1835,1841), quoted in T. Faist, Cultural Diversity and Social Inequalities, 77:1 Social Research (2010) 297–324. 10 A. Rao, The Caste Question: Dalits and the Politics of Modern India (University of California Press 2009); N. Dirks, Castes of Mind, Colonialism and the Making of Modern India (Princeton 2001). 11 A. Varshney, ‘Ethnic Conflict and Rationality’, 1:1 Perspectives on Politics, 85–99, 88. calibrating cultural lenses 77 cleavages and policies in cities like Rotterdam have aimed at ethnic disag- gregation through housing policy.12 In turn, populist narratives on majority national identities use caricatured depictions of Muslim migrant’s otherness in order to define and assert the superiority of Western national identities.13 Such public disaffection towards migrants can easily increase the sense of isolation within these communities and lead to the consolidation of an alienated subculture where expectations to participate in public life as equal citizens are minimal. Hence, the real or perceived hermetism (influenced by linguistic and religious differences) of some groups within migrants and external attitudes towards them have been identified as a key factor in the creation and reproduction of patterns of labour inequality, segregation of housing and general inter-group tension.14 Said that, other variables in socio-economic status not related to ethnicity such as income, residence in urban or rural settings, gender, age and geography are needed to qualify and put in perspective any ethnic-framed assumption.15 Indeed, looking at social inequalities through a cultural lens implies placing a considerable weight on the relevance of cultural considerations in promoting socio-economic integration.16 Such an approach may be misleading when taken too rigidly. Issues concerning Roma migrants within the European Union are an example. In this regard, Lívia Járóka,

12 F. Van de Vijver, S. Schalk-Soekar, J. Areds-Tóth and S. Breugelmans, ‘Cracks in the Wall of Multiculturalism? A Review of Attitudinal Studies in the Netherlands’, 8:1 International Journal of Multicultural Studies (2006) 102–118. Rotterdam city, for example, has attempted to spatially deconcentrate disadvantaged citizens through stricter allocation rules, Wenda van der Laan Bouma-Doff, ‘Confined Contact: Residential Segregation and Ethnic Bridges in the Netherlands’, 44:5/6 Urban Studies, 2007, 997–1017. 13 T. Triadafilopoulos, ‘Illiberal Means to Liberal Ends? Understanding Recent Immigrant Integration Policies in Europe, 37:6 Journal of Ethnic and Migration Studies (2011) 861–880, 873. 14 R. Raijman, ‘Citizenship Status, Ethno-National Origin and Entitlement to Rights: Majority Attitudes towards Minorities and Immigrants in Israel’, 36:1 Journal of Ethnic and Migration Studies (2010) 87–106. 15 M. Powers, ‘Class, ethnicity, and residence in metropolitan America’, 5:1 Demography (1968) 443–448. 16 D. Brady, 2009. Rich Democracies, Poor People: How Politics Explain Poverty. Oxford University Press; Becky Pettit and Jennifer L. Hook, Gendered Tradeoffs: Family, Social Policy, and Economic Inequality in Twenty-One Countries. Russell Sage, 2009;; Telles, Edward E. 2004. Race in Another America: The Significance of Skin Color in Brazil. Princeton University Press. M. Weiner, ed. 2009 (1997); Japan’s Minorities: The Illusion of Homogeneity. 2nd ed. New York: Routledge; Nick Dirks, Castes of Mind: Colonialism and the Making of Modern India (Princeton University Press, 2001); Nick Dirks, Culture/Power/History: A Reader in Contemporary Social Theory (Princeton University Press, 1994). 78 josé-maría arraiza a Roma member of the European Parliament, points to the problems of framing socio-economic matters in terms of ethnicity. According to her, “the post-Communist rural underclass” in Eastern Europe (an important source of migration to the West) is “neither exclusively nor predominantly Roma”.17 Similarly, Steve Fenton has recently argued that the ‘culturization’ of social inclusion actually represents one of the main disadvantages of multicultural policies. Inclusion, he argues, is not a primarily symbolic (cultural) question, but also a matter of access to education, employment and social welfare as well as law enforcement.18 While the need to critically evaluate assumptions on cultural identity and socio-economic participation is obvious, the linkages cannot be either completely excluded (e.g., in cases where the majority of the persons whose inclusion needs to be improved belong to one ethnic group). Even if cultural preferences are not the first variable to take into account, policy choices concerning, for example, language or religious practices are often unavoidable. There is an intrinsic cultural dimension in socio-economic participation which needs to be dealt with in a balanced and non-stereotypical manner.

3. Multicultural Policies and Socio-Economic Participation

The claim that cultural rights are necessary to ensure equal treatment in culturally diverse societies is central to the liberal theory of multiculturalism and indeed to minority rights standards (i.e., justified on the need for substantive equality).19 The question is what kind of cultural policies may be useful to ensure socio-economic integration in each particular context and how to evaluate their impact. Cultural and social vulnerability are two different matters, and as multiculturalists argue themselves, different types of disadvantage require different type of rights.20 Problematically,

17 L. Jaroka, ‘The Post-Communist Rural Underclass is neither exclusively nor predominantly Roma’, Speech issued at the Second Cordoba European Roma Summit, April 8, 2010, available at: . 18 S. Fenton, ‘The Sociology of Ethnicity and National Identity’, 11:1 Ethnicities (2011) 12–17. C. Kukathas, ‘Are there any cultural rights’, 20:1 Political Theory (1992), 105–139, 122. 19 Permanent Court of International Justice, Advisory Opinion on Minority Schools in Albania, Nro. 26, 6 April 1935, 96. 20 W. Kymlicka, ‘The Rights of Minorities: Reply to Kukathas’, 20:1 Political Theory (1992) 140–146, 141. calibrating cultural lenses 79 migrants both are both socio-economically and culturally distinct. Moreover, they are placed at a lower scale in the groups being awarded special rights due to the voluntary and in certain cases temporary character of their presence in the majority community vis-à-vis the longstanding historical presence of other minorities (indigenous peoples, national minorities).21 Lack of recognition of cultural rights for migrants vis-à-vis national minorities and indigenous peoples, has been deepened by the so-called “muticulturalism backlash”. The public debate on the topic has been highly ambiguous in its terminology. The much quoted statements by German Chancellor Angela Merkel, U.K.’s Prime Minister David Cameron proclaiming respectively the “death” and “failure” multiculturalism have been interpreted in multiple, often contradictory, directions.22 Thus, even when measures are presented as a departure from prior multiculturalism, it is often unclear whether such multicultural policies were in place to begin with. Authors such as Derek McGhee see rather a departure from using the concrete term ‘multiculturalism’ in the U.K. rather than moving away from its principles or policies.23 Creative ambiguity is abundant: Home Secretary’s David Blunkett defined integration as “allowing people to express their identity within a common framework of rights and responsibilities”, a simple way to express a core value of liberal multiculturalism.24 A somewhat different position is expressed in the Council of Europe Council of Ministers “White Paper on Inter-Cultural Dialogue” which hints at the construction of a European, post-national -even post-State- identity based on human rights and democratic principles and discards multiculturalism and assimilation as two sides of the same coin “sharing the same schematic conception of society set in opposition of majority and minority” (in relation to the mono-dimensional categorisations referred to earlier).25 Against these scheme and “old approaches to the management of cultural diversity” the CoE proposal aims to take the best

21 Kukathas, 1992, supra note 18,146. 22 Kymlicka, 2011, supra note 4, 9. Council of Europe, Committee of Ministers (2008) White paper on intercultural dialogue (CM 2008 30), para. 15. Available at . 23 McGhee, 2008, supra note 18, 85. 24 Ibid., 86. 25 Council of Ministers of the Council of Europe, supra note 22, 18. The introductory statement says that “[i]f there is a European identity to be realised, it will be based on shared fundamental values, respect for common heritage and cultural diversity as well as respect for the equal dignity of every individual”. 80 josé-maría arraiza of both assimilation (i.e., the focus on the individual) and multiculturalism (i.e., the appreciation of cultural diversity):. The White Paper centers on the promotion of “inter-cultural dialogue” at multiple levels.26 An attractive argument would then gain strength if it explained in more practical terms how dialogue is supposed to take place in practice, who are its main actors (or who selects them) and what are its conditions. Apart from the emphasis on dialogue, the recommendations are consistent with existing approaches on multiculturalism and integration understood as including majority language acquisition, promotion of democratic citizenship, appreciation for diversity and dialogue.27 A more substantial criticism is reflected in the so-called ‘progressive dilemma’ between diversity and welfare. Multicultural policies concerning migrant groups have been associated with school-drop, significantly higher unemployment rates and criminalization in Western countries such as the Netherlands, or the United Kingdom.28 In the case of the former, the creation of low paid jobs in the public sector during the 90’s led, according to Ruben Gowrichan, to the creation of a social stratum of working poor formed by migrants.29 In this context the dilemma relates to mass immigration eroding the historic coalition of social forces that built the welfare state. The majority feels less motivated to redistribute newcomers to illegitimate ‘others’ who, as the Moroccan migrant described

26 Ibid., 9. 27 Kymlicka, 2007, supra note 2, 73–74. Kymlicka lists the following eight multicultural policies for migrants: “1) constitutional, legislative, or parliamentary affirmation of multiculturalism at the central and-or regional and municipal levels; 2) the adoption of multiculturalism in school curricula; 3) the inclusion of ethnic representation/sensitivity in the mandate of the media and media licensing; 4) exemptions from dress codes, Sunday closing legislation, etc (either by statute or by court cases); 5) allowing dual citizenship; 6) the funding of ethnic group organizations to support cultural activities; 7) the funding of bilingual educationor mother tongue instruction; 8) affirmative action for disadvantaged immigrant groups”. 28 E. Vasta, ‘From Ethnic Minorities to Ethnic Majority Policy: Multiculturalism and the Shift to Assimilationism in The Netherlands’, 30:5 Ethnic and Racial Studies (2007) pp. 713–740; C. Joppke, ‘The Retreat of Multiculturalism in the Liberal State: Theory and Policy’, 55:2 The British Journal of Sociology (2004) pp. 237–257; P. Scheffer, ‘Das Multikulturelle Drama’, Frankfurter Allgemeine Zeitung, 12 July 2001; D. McGhee, End of Multiculturalism: Terrorism, Integration and Human Rights (McGraw Hill Education 2008). S. Daley, The New York Times, Swedes Begin to Question Liberal Migration Tenets, 26 February 2011, available at . J. Rath, ‘Debating Multiculturalism. Europe Reaction in Context’, Harvard International Review, 6 January 2011. Hansen (2009), 16. 29 R. Gowricharn, ‘Integration and Social Cohesion, the Case of the Netherlands’, 28:2 Journal of Ethnic and Migration Studies (2002) 259–273. calibrating cultural lenses 81 in the introductory email to this article, do not even learn the host- country’s language.30 The problem here, as in the email exchange described at the beginning, is to distinguish partial or prejudiced perceptions from social realities as well as possible normative gaps in the welfare system. The difficulties in evaluating the impact of multicultural and welfare policies are manifold. Will Kymlicka, argues in this sense that the retreat from multiculturalism is less evidence based than its original advocacy by political theorists.31 Indeed, existing research on the topic suffers from terminological ambiguity, problematic extrapolations from one country to another and endogeneity (i.e., lack of attention to other variables which influence integration or lack thereof). The necessity to systematically look at the outcomes of social policies aimed at integration in order to validate them is however undeniable and efforts at doing so are most welcome. Rud Koopmans, for example, has compared the Netherlands to seven major migrant recipient European countries (Germany, France, the U.K., Switzerland, Sweden, Austria and Belgium).32 According to his study, policies that emphasise what he terms as “cultural assimilation” force migrants to acquire skills which improve their chances in the labour market. In the contrary, what he describes as “cultural accommodation policies” which allow “easy access to equality” deprive the migrant from the social capital of having contacts across ethnic boundaries and thus access to broader opportunities.33 In his scheme, countries which combine generous welfare with equal rights and limited pressures towards assimilation (Sweden, The Netherlands, Belgium) show lower levels of participation in the labour market.34 Such hypothesis runs, he argues, counter to the philosophy of multiculturalism which he characterizes as assuming that migrants “will integrate better, the easier and the quicker they can obtain formal equality, and the more they can retain and develop their own cultural identities and practice”.35

30 W. Kymlicka & K. Banting (Eds.), Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies (Oxford University Press, 2006), 5, quoting Goodhart 2004 & Pearce, 2004). 31 Ibid., p. 9. 32 Koopmans, 2010, supra note 4. 33 Koopmans uses a set of comparative data sets (Migration Policy Index, a “Legal Obstacles to Integration-LOI index” and a Cultural Rights Index) as well as previous studies to support the hypothesis that countries which either have a limited welfare state or a restrictive and assimilationist integration regime display higher levels of labour migrant participation. 34 Ibid., 14–15. 35 Ibid., 13. 82 josé-maría arraiza

Such an understanding of multiculturalism (and equality) problematically assumes that any multicultural policy will always and in every situation aim at maximizing cultural rights regardless of any other consideration, when some of the defining features of such policies are their versatility.36 In fact, promoting the acquisition of the majority’s language is a common feature of multicultural policies aiming at social integration (and reflected to some extent in minority rights standards).37 In my opinion, pointing to the fact that inter alia majority language acquisition policies have not been adequate in some Western countries is a legitimate and necessary criticism. However, the fact that some multicultural policies have neglected this area and/or failed to provide adequate sufficient resources to it should reasonably lead to criticism of this concrete aspect of a particular policy, but not of the philosophy of liberal multiculturalism as a whole. Calling for a revision of the outcomes of concrete multicultural policies is indeed subject of regular debate amongst their proponents.38 The ongoing debate clearly evolves, however, around what type of multiculturalism (and welfare) policies are necessary, not on alternatives outside its main premises.

3.1. Measures towards Integration: A Departure from Multiculturalism? In general terms, integration policies place a stronger emphasis on responsibilities than the recognition of rights. Access to welfare, residence, citizenship and sometimes even entry may be linked to the fulfilment of a “responsibility to integrate” (e.g., acquisition of the majority’s language and culture, citizenship tests). It is important to note that narratives on integration and multiculturalism are often not presented in opposition to each other. Rather, integration may be differentiated from assimilation in that it contains multicultural policy elements aiming at respect for cultural diversity.39

36 Kymlicka, 2007, supra note 2, 154–165. 37 Ibid., 71–77. Official language policies are normally taken into account within multicultural policies. See Article 3(j), Canadian Multiculturalism Act, R.S.C., 1985, c. 24 (4th Supp). Also, the Preamble of the Council of Europe’s European Charter on Regional and Minority Languages, for example, stresses “the value of interculturalism and multilingualism [and] considering that the protection and encouragement of regional or minority languages should not be to the detriment of the official languages and the need to learn them”. 38 W. Kymlicka, ‘Invited Symposium: New Directions and Issues for the Study of Ethnicity, Nationalism and Multiculturalism’, 11(1) Ethnicities (2010) pp. 5–31. 39 P. Li, ‘Deconstructing Canada’s Discourse of Immigrant Integration’, 4:3 Journal of International Migration and Integration (2003) 315–333, 319. calibrating cultural lenses 83

An example of an initiative to develop a narrative on integration may be found in the European Commission 2004 Handbook on Integration. Following a “best practices” approach, the handbook aims at exchanging practices and experiences between different European countries in order to facilitate policy development on programmes to ensure integration of migrants while respecting European non-discrimination normative such as the Race Equality Directive and the Equal Employment Directive as well as human rights such as freedom of religion (in the absence of any robust standard on minority rights for migrant communities).40 The Handbook covers a wide range of areas which mix traditional multicultural policies such as inclusion in media, non-discrimination on religious, ethnic grounds and inter-cultural dialogue; socio-economic inclusion measures towards housing, employment and education as well as naturalisation and “active citizenship”.41 The latter term is understood in the Integration Handbook (similarly to the earlier mentioned Council of Europe White Paper) as participation in civil society, community and political life within a framework of human rights, democracy and intercultural dialogue. The value of initiatives such as the Integration Handbook is in their helping policy makers identify legitimate policies aimed at integration. The problem lies in the methods of implementation and their proportionality. As Christian Joppke states, “the devil is in the details” and the degree of obligations placed in the newcomer, the nature of the enforcement procedures as well as the material resources available affect how balanced is a policy (e.g., the number of hours a migrant will be required to attend language classes per week, whether the ‘integration contract’ will be provided in a language that the candidate understands). Thus, punitive

40 The 1977 European Convention on the Legal Status of Migrant Workers and the 1990 UN International Convention on the Protection of all Migrant Workers and Members of their Families do not recognize minority rights for migrants. Language rights in the 1977 Convention are related to facilitating return to the place of origin. Kymlicka, 2007, supra note 2, 176. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Directive 2002/73/ EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; Directive 2000/78/EC, 27 November 2000 (Equal Employment Directive). 41 EU Handbook on Integration, EU Directorate General Justice, Freedom and Security, European Union Handbook on Integration for Policy Makers and Practitioners, Third Edition, April 2010, available at . 84 josé-maría arraiza approaches such as the introduction of fines for migrants who fail to follow integration programmes or conditionalities on the renewal of residence permits to integration tests or contracts differ greatly from other measures aimed at facilitation and promotion of integration using less stringent measures.42 U.K. and Germany’s ‘citizenship ceremonies’ follow a more positive reinforcement of the need for cultural integration. Obviously, publicizing ‘best practices’ approaches do not guarantee any change in policy. However, their value as advocacy and learning tools should not be overlooked. Some see in the focus on integration measures a move towards a nationalism of exclusion. For example, Ellie Vasta sees the rhetoric of ‘migrant responsibility’ in the Netherlands as a cloak for assimilationism.43 Narra tives against the recognition of diversity are moreover framed into the usual claim that migrants have forfeited their right to maintain their identities by leaving their hometowns. In this line, Vasta describes the dominant discourse in the Netherlands as one in which migrants embrace a “backward religion” (Islam in all its varieties), have failed to fulfil the “responsibility to integrate” and are therefore to be obliged to do so. She concludes that a structural racism in the labour market, education and generally the public discourse are also responsible.44 Similarly, Ian Buruma talks about a shift in Dutch progressive elites from a dogmatic advocacy of tolerant multiculturalism to an “anxious rejection of Islam in public life”.45 Indeed, a criticism of migrants willingness to integrate is analytically handicapped if not accompanied by an equally thorough revision of existing segregationist and discriminatory tendencies in Western societies. In a similar line, Triadafilos Triadafilopoulos’ comprehensive review of integration approaches affirm that the new “aggressive integrationism” (a one-sided approach relying on punishment rather than facilitation) reflects a distinct “Schmittian liberalism” and masks an exclusionary

42 Vasta, 2007, supra note 28, 718–719. See the Dutch Bill for a New Integration Act, September 2005. R. Hansen, ‘The Poverty of post-nationalism: citizenship, immigration, and the new Europe’, 38 Social Theory (2009) 1–24. In Spain, the conservative Partido Popular proposed an ‘integration contract’ for migrants who wish to renew their residence permits. S. Oliver, 2 March 2011, El País, ‘Rajoy rescata el contrato de integración para las elecciones generales’, available at . 43 Vasta, 2007, supra note 28, 735; E. Tonkens, M. Hurenkamp & J.W. Dyuvendak, ‘Culturalization of Citizenship in The Netherlands’, Amsterdam School for Social Sciences research (ASSR), University of Amsterdam, October 2008. D. McGhee, End of Multiculturalism: Terrorism, Integration and Human Rights (McGraw Hill Education 2008), 84. 44 Vasta, 2007, supra note 28, 713–715. 45 I. Buruma, Murder in Amsterdam (Atlantic Books, 2006) 124. calibrating cultural lenses 85 move. In simple terms, such a position is based on the Schmittian idea of certain necessity to distinguish friends and foes in order to establish a polity’s distinctiveness. According to him, Schmittian liberals see the task of migrant integration as a way to protect “Western civilisation” from the influence of its alleged enemy, Islam. Such a proposition presents a superior and civilized ‘us’ against an obscure and caricatured ‘them’.46 In this context, the trend towards establishing of measures of a primarily symbolic character such as normative restricting the use of face veils (bhurqa, niqab) or the 2009 Swiss minaret ban would arguably fit within this Schmittian understanding of liberal values. As a telling anecdote, the Spanish media in December 2010 focused on the story of a Moroccan family allegedly suing a school teacher for praising jamón ibérico (Iberian ham, considered a symbol of national cuisine) during class. The family argued the claim related to discriminatory treatment, where the teacher allegedly told the kid to “go back to his country” if he did not like the food in question. Whatever the truth behind the story is, the exertion to “like it or leave it” concerning migrants reflects such Schmittian trends towards linking the legitimacy of a migrants’ residence, citizenship status and enjoyment of social benefits with his or her acceptance of cultural norms.47 It is essential, in my view, to very clearly separate exclusionary and ethnocentric ideas from legitimate aims at socio-economic, cultural and civic integration of migrants. Integration policies are by no means always based on notions of cultural superiority. As Christian Joppke notes, measures such as citizenship tests are a longstanding feature in migrant recipient countries like the United States. Their liberalism should only be questioned when such tests interfere with fundamental rights such as the freedom of conscience. Joppke refers to a Gesprächsleitfaden (Interview Guideline) issued by the Land government of Baden-Württemberg in 2005 which aimed at checking whether an applicant’s “declaration of loyalty” (Bekenntnis) to the Constitution also corresponded to the applicant’s “inner disposition”. In Joppke’s view, “ever since Kant, it is a key precept of liberalism that law and public policy can regulate only the external behaviour of people, not their inner motivations”.48 In this regard, the earlier

46 Triadafilopoulos, 2011, supra note 13. 47 ‘La madre del niño musulmán que denunció a su professor: “No es por jamón, es por racismo”’, ABC, 22 December 2010, available at . 48 C. Joppke, ‘How Liberal are Citizenship Tests, Kickoff Contribution by Christian Joppke’, EUDO Citizenship Forum, January 6, 2010, available at . 86 josé-maría arraiza mentioned Integration Handbook follows such an approach and mentions examples of recent reforms replacing old tests assessing the “willingness to integrate” (Belgium) or “sufficient assimilation” (Luxembourg) with less intrusive requirements.49

4. Cultural Rights, Socio-Economic Participation and Conflict Prevention

A third linkage is sometimes made between policies aimed at migrant integration and efforts aimed at preventing violence. In this sense, the reaction against multiculturalism policies is often associated to the after- math of the mass terrorist attacks of 9/11. However, the origins of the reaction against multiculturalism can be traced well before the New York, Washington, Madrid and London terrorist attacks.50 Such events have impacted on public perceptions on Islam and have intensified already existing resistance against the recognition of cultural rights through domestic multicultural policies. Riots such as the ones that took place in the U.K. in 2001 and in France in 2005 require a careful analysis.51 These were also publicly associated with migrant ethnic diversity. However, going back to the first assumption on cultural and socio-economic categories, it is not clear whether it is the marginalisation of migrant communities that lead to ethnic riots or marginalisation per se that was to blame.52 In fact, counterintuitive results of ethnographic research suggest that young protesters in the 2005 riots in France were aligned on class basis and not ethnicity.53 Moreover, their quest has been presented as that of citizens willing to be treated as such,

49 EU Handbook on Integration, supra note 41, 117. 50 Triadafilopoulos, 2011, supra note 13; R. Hansen, ‘The Poverty of post-nationalism: citizenship, immigration, and the new Europe’, 38 Social Theory (2009) 1–24, 16; Koopmans, 2011, supra note 4, 21. 51 The August 2011 riots in London are not analyzed in this piece. 52 D. Duprez, ‘Urban Rioting as an Indicator of Crisis in the Integration Model for Ethnic Minority Youth in France, 35(2) Journal of Ethnic and Migration Studies (2008) 753–770. Hecter, supra note 1, 408. R. Carranco, ‘Protestas Vandalicas en Salt’, El País, 17 January 2011, . 53 This is the conclusion of J. Murphy in ‘Baguettes, Berets and Burning Cars: The 2005 Riots and the Question of Race in Contemporary France’, 22(1) French Cultural Studies (2011) 33–49. calibrating cultural lenses 87 and not differently as ethnic minorities. According to Dominique Duprez, they wanted in fact to assimilate to the majority culture.54 Such a finding contrasts with the reading that the British government did of the 2001 violent clashes between Pakistani-Muslim, white communities and the police in Oldham, Burnley and Bradford. The Community Cohesion Review reported that a new concept of citizenship which placed “a higher value on cultural differences” was needed, arguing therefore in favour of multicultural policies.55 An interesting disruptive –but peaceful– development took place in Madrid in May 2011 prior to the regional and municipal elections. An apparently spontaneous and explicitly non-violent group of youngsters camped in the Sol square of Madrid claiming against lack of political (and socio-economic) participation. The campsite grew into a small com- mune-like gathering of indignados (outraged) which organized a series of assemblies on issues such as employment, political participation, housing and migration. Images from the square from above reminded of those of Cairo’s Tahrir Square in February 2011.56 From the onset, groups of migrants were present at the protest. Their vindications had nothing to do with cultural rights, but rather advocated for full equality and non-discriminatory treatment and against racial profiling, administrative detention of illegal migrants and restrictions on citizenship, residence and entry requirements. In all, they were demanding nothing less than equal treatment. Such developments contrast with common depictions of integration and multiculturalism issues of migrants as centered on cultural matters, such as the regulation of the headscarf in public spaces, absences from work due to religious observances and the like. The concrete demands of Sol Square’s “migration commission” had simply nothing to do with cultural recognition or demands for special measures but fell squarely within the realm of civil rights and procedural aspects of migration policy (e.g., administrative detention). Listening to such concrete demands for integration through basic human rights is necessary to qualify the focus on cultural identity matters.

54 Duprez, supra note 52. Hecter, supra note 1, 408. 55 Mc Ghee (2008), 83. 56 State Federation of Migrant Associations in Spain, The Migrants in the Sol Square Camp Site, Leaflet, Sol Square, Madrid, May 2011. The leaflet ends with the following statement: “Hail the youngsters that fight for their rights!, We the migrants are with you!”. 88 josé-maría arraiza

5. Conclusion

The ambivalence inherent in the email described in the introduction between the will to support integration and the fear of abuse by a migrant ‘other’ reflects a need for new policies addressing the challenges of migrant integration and social welfare. Such policies aimed at socio-economic participation face, in my view, a triple challenge: first, they need to avoid looking at socio-economic matters from an exclusively cultural perspective as this can distort the analysis of the problems faced by migrants and the wider society. Secondly, they need to ensure a balanced degree of cultural accommodation (including addressing linguistic and religious diversity) in order not to inhibit persons from learning the majority language, accessing education, employment and other services. Third, constructive dialogue is needed at all levels’. Europe’s crisis of confidence on liberal multiculturalism is both linked to the term itself and the variety of policies it may include (e.g., concerning entry, residence, naturalisation and access to social welfare). Its main proposition, that is, that cultural differences need to be taken into account when defining social policy continue to stand: there is an intrinsic cultural dimension in socio-economic participation which needs to be dealt with in a balanced and non-stereotypical manner and policies in place need to be adequately evaluated. The crisis reflects, in this sense, rather a widespread anxiety to achieve more adequate policies rather than a rejection of the concept as a whole. Political criticism on multiculturalism often fails to concretize the policies which are considered inadequate and exclude factors which influence integration and are not linked to cultural rights. In this sense, the debate could benefit from better definition of the policies associated with multiculturalism and efforts at integration (e.g., policies on majority language acquisition) in the context of migration. A calibration of the ‘cultural lenses’ through which groups and social integration are understood would also improve the debate on multicultural policies in relation to migrant integration. In practical terms, it would facilitate a more rigorous evaluation of the impact its policies. From a normative perspective, the evaluation of policies focused on the ‘responsibility to integrate’ need to look at how competing interests are balanced in practice (e.g., resources required from the migrant for language acquisition, gravity of sanctions, efforts at facilitation) and whether binding human rights obligations are respected calibrating cultural lenses 89

(e.g., freedom of conscience and opinion in the case of overreaching citizenship tests).57 Finally, evaluating integration policies from a security standpoint requires also a revision of assumptions on socio-economic and cultural groups and the causes behind concrete instances of riots and other forms of collective violence. Defining migrants as impermeable obscure groups which constitute a security threat is dangerous and misleading and plays into the political instrumentalisation of ethnic matters by populists. For anyone in regular contact with the social realities of migration, any relation between the caricaturized exclusionary portrays presented by such narratives and the complexity of migrant-recipient societies is purely coincidental. In all, integration needs to be addressed as a matter of human security, that of the migrants themselves, the majority communities and societies as a whole. In this sense, dialogue within, between migrant groups, recipient communities and governments where current understandings are re-evaluated (and participants are able to change their views) would indeed help give direction to Europe’s policies on migrant integration.

57 Tonken, Hurenkamp & Duyvendak, supra note 43.

BETWEEN IDENTITY TRANSMISSION AND EQUAL OPPORTUNITIES: THE MULTIPLE DIMENSIONS OF MINORITIES’ RIGHT TO EDUCATION

Julie Ringelheim*

Introduction

Education has always held a special place in minority protection. On the one hand, being able to transmit their culture, language or religion to their children through instruction is essential for the survival of minorities as a distinct community. On the other hand, accessing an education of equal value as that received by the majority is crucial in enabling minority members, once grown-up, to enjoy equal social and professional opportunities. Accordingly, education can both be a means of identity preservation and of social inclusion; a vehicle for maintaining their distinctiveness and an instrument of integration into the mainstream society. As argued by Holly Cullen, minorities’ right to education precisely includes these two dimensions: equality of opportunity, on the one side, pluralism or identity transmission on the other.1 These two concerns, however, are not without tension: while the objective of socio-economic inclusion seems to be best served by promoting identical and integrated instruction for all children, this model entails a risk of eroding minorities’ specificities and furthering assimilation. Conversely, whereas separate schooling in the minority language or religion may appear as the best way to protect minorities’ distinct identity, it may isolate them and jeopardize their integration within the broader society.2 This dilemma epitomises a query that is at the core of the

* Senior Researcher, Belgian National Fund for Scientific Research (F.R.S-FNRS), Lecturer in Human Rights Law at Louvain University (Belgium). This paper was drafted while the author was a visiting fellow at the Paris Institute for Advanced Studies (IEA-Paris) and the Centre d’études européennes of Sciences-Po Paris. 1 H. Cullen, ‘Education Rights or Minority Rights?’, 7(2) Int. J. Law Policy Family (1993) pp. 143–177. See also D. Beiter, The Protection of the Right to Education by International Law (Leiden: Martinus Nijhoff, 2005). 2 See T. Hadden, ‘Integration and Separation: Legal and Political Choices in Implementing Minority Rights’, in N. Ghanea and A. Xanthaki (eds), Minorities, Peoples and Self-Determination. Essays in Honour of Patrick Thornberry (Leiden, Boston: Martinus Nijhoff, 2004), 173–191 and P. Thornberry, ‘Article 13’, in M. Weller (ed.), The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford: Oxford University Press, 2005), pp. 395–406, at 404–405. 92 julie ringelheim minority protection project: how to guarantee minorities’ right to equality while enabling them to maintain their own identity? How to protect their distinct language, religion or culture while promoting their participation in the social, economic, political and cultural life of the general society?3 But there is more. Even from the sole viewpoint of equal opportunities, integrated education may, in practice, reveal ambivalent. Where a minority is especially disadvantaged, children may experience difficulties in competing with other children in a common education system. This may result in higher drop out and failure rates, thus compromising the actual benefit they draw from education as well as their actual integration in society. Hence, an additional quandary arises: how to ensure that integrated education actually promotes equal opportunities for minority children, rather than reinforces previous disadvantage? In essence, both matters point to a common problem, namely how to promote equal education while attending to minorities’ special needs, whether cultural or socio-economic needs. This paper seeks to explore how international human rights law deals with this issue. It looks at the dialectic between separate and integrated education from the perspective of both aspects of minorities’ right to education: identity transmission and equal opportunities. The inquiry takes into account relevant United Nations and European human rights instruments. Particular attention is devoted to the work of the Advisory Committee on the Council of Europe’s Framework Convention on the Protection of National Minorities (FCNM) and the case law of the European Court of Human Rights (ECtHR). The right to education of minorities has indeed been the subject of significant developments in both institutions. In the case of the Advisory Committee, the importance attached to this question is reflected in the text of the FCNM itself, which contains no less than three provisions relating to educational right, namely articles 12 to 14. As for the European Court, in the years 2000, it had to examine a series of cases where certain educational policies, which allegedly had exclusionary effects on the Roma minority, were challenged based on Article 14 of the European Convention on Human Rights (ECHR), which prohibits discrimination, read in conjunction with Article 2 of the first Protocol to the Convention, which lays down

3 Comp. with Kristin Henrard who emphasises that minority protection rests on ‘two pillars’, namely the prohibition of discrimination and measures designed to protect and promote the separate identity of the minority groups. See K. Henrard, Devising an Adequate System of Minority Protection – Individual Human Rights, Minority Rights and the Right to Self-Determination (The Hague: Martinus Nijhoff, 2000), p. 8. the multiple dimensions of minorities’ right to education 93 the right to instruction. It will be argued that a common lesson emerges from the practice of these two bodies: while international human rights law does not impose a unique educational model, it does favour integrated over separate education. Yet, at the same time it points towards a transformation of the content and modalities of the education provided in common institutions, and this, in order to respond to three types of concerns: in addition to fostering mutual knowledge and understanding between the various communities, the objective is to give effect to both minorities’ right to identity transmission and to equal opportunities.

1. Minorities’ Right to Education and Identity Transmission

Various international human rights instruments suggest, at least implicitly, that minorities’ right to education includes an entitlement to transmit one’s culture to one’s children. Provisions on minority education already figured prominently in minority treaties concluded after the First World War in the framework of the League of Nations.4 In the contemporary era, the United Nations Convention on the Rights of the Child (CRC) mentions among the objectives of education the development of respect for the child’s own cultural identity, language and values,5 besides instrumental aims such as the ‘development of the child’s personality, talents and mental and physical abilities to their fullest potential’.6 Article 14(1) FCNM lays down the right of persons belonging to national minorities to learn his or her minority language while Article 14(2) requires states, in areas inhabited traditionally or in substantial number by minorities and if there is sufficient demand, to provide members of minorities with adequate opportunities for being taught or receiving instruction in the minority language. Comparable obligations are established in Article 8 of the European Charter for Regional and Minority Languages. Likewise, the 1992

4 See D. Beiter, op. cit., pp. 431–439 and P. Thornberry, International Law and the Rights of Minorities, Oxford University Press, 1993, ch. 3. 5 Article 29(1)(c) CRC. 6 Article 29(1)(a). The other objectives mentioned in this provision are the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; the development of respect for the child’s parents, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; the prep- aration of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; and the development of respect for the natural environment. 94 julie ringelheim

United Nations Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities calls upon states to endeavour to ensure that persons belonging to minorities have the opportunity to learn their mother tongue or to have instruction in it.7 Moreover, both the FCNM (Article 12(1)) and the UN Declaration (Article 4(4)) obliges states to take appropriate measures in the field of education to foster knowledge not only of the language but also of the culture, history and religion of minorities existing in their territory. These provisions concern the instruction provided to all children; part of their aim is thus to promote awareness and understanding of minority cultures among the general population. But they also entail that initiatives must be taken to allow minorities themselves to learn about their cultural heritage through education.8 Yet none of these instruments specify how this right to identity transmission is to be implemented, and, in particular, whether this implies the creation of special schools directed at minorities. To be sure, Article 13(1) FCNM guarantees minorities the right to set up and manage their own private educational establishments,9 but this is no more than a restate- ment of the general liberty to establish private educational institutions, recognised to any individual by the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).10 Article 13(1), moreover, specifies that this right does not entail any financial obligation for states, although it does not exclude the possibility of such contribution. It thus fell on international monitoring bodies to clarify the practical implications of minorities’ right to transmit their language or culture through education. The work of the Advisory Committee on the FCNM,

7 Article 4(3), Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly Resolution 47/135 of 18 December 1992. In the same vein, the Recommendations on the education rights of national minorities, elaborated by the High Commissioner on National Minorities of the Organisation for Security and Cooperation in Europe (OSCE), lay down that the ‘right of persons belonging to national minorities to maintain their identity can only be fully realised if they acquire a proper knowledge of their mother tongue during the educational process.’ (OSCE High Commissioner on National Minorities, The Hague Recommendations Regarding the Education Rights of National Minorities, October 1996, para. 1). 8 P. Thornberry, ‘Article 12’, in M. Weller (ed.), The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford: Oxford University Press, 2005), pp. 365–393, esp. at 373–374. 9 This right is also provided for in Article 5(c) of the 1960 UNESCO Convention against Discrimination in Education. 10 Article 13(4). This right is subject to the requirement that the education given in such institutions conforms to the conditions set forth in the Covenant and to minimum standards as may be laid down by the State. See also P. Thornberry, ‘Article 13’, op. cit., pp. 397–400. the multiple dimensions of minorities’ right to education 95 the sole international institution to date tasked with supervising respect for a multilateral convention on the rights of ethnic, linguistic and religious minorities, is of special relevance here. Through the examination of state’s reports on the measures taken to give effect to the FCNM, the Committee is confronted very concretely with the problem, identified above, of reconciling the right to cultural transmission with the right to equal opportunities in education. In addition, the Committee must also take into account Article 12(2), which requires states to ‘facilitate contacts among students and teachers of different communities’. The special interest of the Committee’s work is that it suggests a way out of the apparent dilemma between separate education in the minority culture (which raises a risk of isolation) and integrated education reflecting the culture of the majority (which may become a means of assimilation). It demonstrates that available options are not limited to these two alternatives. The Committee indeed strongly supports a third approach: the promotion of multicultural and intercultural forms of education for both minority and majority children (1.1). That said, it does not object in principle to the existence of separate minority schools, where attendance of these establishments is left to the choice of the parents or the children. In some circumstances, however, it has expressed concern that such arrangements conflicted with certain provisions of the FCNM (1.2).

1.1. The Promotion of Intercultural Education The obligation set in Article 12(2) FCNM to ‘facilitate contacts among students and teachers of different communities’ suggests a preference for arrangements where minority children are educated in the same institutions as the majority: as a matter of fact, pupils from different communities are most likely to interact and intermingle if they attend the same schools. Yet, such framework must be made compatible with minori ties’ right to transmit their language and cultural heritage through education. In addition, Article 12(1), as noted, requires states to foster knowledge of minorities’ culture, history, language and religion among the whole population, echoing Article 6’s obligation to encourage intercultural dialogue, mutual respect and understanding among all persons living in the country, in particular through measures in the field of education.11

11 The importance of Article 6 for the interpretation of the education provisions of the FCNM has been underlined by the Advisory Committe itself. See Advisory Committee on the FCNM, Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 9. See also K. Henrard, 96 julie ringelheim

The combination of these various obligations has led the Advisory Committee to decidedly promote, from the start, one specific model of education, namely intercultural and multicultural educational schemes. As highlighted in the Commentary to the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, multicultural education refers to educational policies and practices aimed at meeting the distinct educational needs of groups belonging to different cultural traditions, whereas intercultural education is concerned with ensuring that persons belonging to different cultural communities learn to interact constructively with each other.12 Both concerns are present in the Advisory Committee opinions. Significantly, the latter increasingly include a section dedicated to the ‘multicultural content of education’ or the ‘intercultural dimension of education’.13 The Committee consistently recommends states to disseminate knowledge of minorities’ culture through educational policies, to ensure that school curricula and textbooks pay adequate attention to the identities and perspectives of minority communities as well as to increase attention to minority culture in teacher training.14 Significantly, as clarified in its Commentary on Education, the Committee’s core preoccupation is to ensure that the education system is organised in a way ‘which allows for interaction between persons from various groups in order to encourage mutual understanding and tolerance, while at the same time ensuring the successful maintenance and development of the elements of the identities of members belonging to various groups.’ Hence, the structures and

‘Tracing Visions on Integration and/of Minorities: An Analysis of the Supervisory Practice of the FCNM’, 13 International Community Law Review (2011) pp. 333–360, at 357 and A. Korkeakivi, ‘In Defense of Speaking Out: The European Human Rights Regime and the Protection of Minority Languages’, 3 Intercultural Human Rights Law Review (2008) pp. 137–149, at 147. 12 A. Eide, Commentary to the U N Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/sub.2/AC.5/2001/2 (2001), para. 66. See also P. Thornberry, “Education”, in M. Weller (ed.), Universal Minority Rights – A Commentary on the Jurisprudence of International Courts and Treaty Bodies, Oxford University Press, 2007, pp. 325–362. 13 See, e.g., Third Opinion on Cyprus, 19 March 2010, ACFC/OP/III(2010)002; Second Opinion on Austria, 8 June 2007, ACFC/OP/II(2007)005; Second Opinion on Poland, 20 March 2009, ACFC/OP/II(2009)002. 14 See, e.g., Third Opinion on Finland, 14 October 2010, ACFC/OP/III(2010)007, para. 126; Third Opinion on Estonia, 1 April 2011, ACFC/OP/III(2011)004, para. 132 and 135; Second Opinion on Austria, 8 June 2007, ACFC/OP/II(2007)005, para. 140; Second Opinion on Poland, 20 March 2009, ACFC/OP/II(2009)002, para. 158; Second Opinion on Kosovo, 5 November 2009, ACFC/OP/II(2009)004, para. 202. the multiple dimensions of minorities’ right to education 97 content of education must ensure a balance between these two aims ‘in order to achieve ‘integration in diversity’’.15 The influence of the multicultural education model is especially dis- cernible in the interpretation developed by the Advisory Committee of the requirements of Article 14 FCNM, which establishes the right to be provided with adequate opportunities for being taught or receiving instruction in the minority language, at least in areas inhabited traditionally or by a substantial number of minority members and where there is sufficient demand. While acknowledging that this provision can be implemented through various modalities,16 one measure especially favoured by the Advisory Committee is the incorporation of the teaching of or in the minority language in the public education system. The Committee frequently urges states to create or increase effective possibilities for pupils belonging to minority communities to learn the minority language in state schools.17 It considers that a low numerical threshold is sufficient for the creation of minority language classes.18 In its opinions on the United Kingdom, it invites the authorities to encourage schools to also expand the provision of languages spoken by ethnic (immigrant) communities.19 More generally, it puts particular emphasis on the development of the teaching of and in the Romani language, seen as a means to improving integration of Roma pupils on an equal footing in the education system.20

15 Commentary on Education, op. cit., p. 16. Similarly, Article 4(4) of the UN Declaration is also said to call for ‘intercultural education, by encouraging knowledge in the society as a whole of the history, tradition and culture of the minorities living there.’ Its overall purpose is ‘to ensure egalitarian integration based on non-discrimination and respect for each of the cultural, linguistic or religious groups which together form the national society.’ (A. Eide, Commentary to the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, op. cit., para. 67 and 69). 16 For a summary of the most common methods and structures of integration of minority languages in primary schools reported by state parties, see Commentary on Education, op. cit., p. 16. See also the measures recommended in this relation by the OSCE High Commissioner on National Minorities in its The Hague Recommendations. 17 See e.g. Third Opinion on Armenia, 14 October 2010, ACFC/OP/III(2010)006, para. 106; Third Opinion on the Slovak Republic, 28 May 2010, ACFC/OP/III(2010)004, para. 169; Third Opinion on Estonia, 1 April 2011, ACFC/OP/III(2011)004, para. 148 and 159. 18 F. De Varennes and P. Thornberry, ‘Article 14’, in M. Weller (ed.), The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford: Oxford University Press, 2005), pp. 407–428, at 421. 19 Third Opinion on the United Kingdom, 30 June 2011, ACFC/OP/III(2011)006, para. 186; Second Opinion on the United Kingdom, 6 June 2007, ACFC/OP/II(2007)003, para. 220; First Opinion on the United Kingdom, 30 November 2001, ACFC/INF/OP/I(2002)006, para. 91. 20 See, in particular, Third Opinion on Slovenia, 31 March 2011, ACFC/OP/III(2011)003, para. 118; Third Opinion on Finland, 14 October 2010, ACFC/OP/III(2010)007, para. 140; 98 julie ringelheim

Conversely, the Committee also attaches importance to the learning of the majority language by the minority.21 This reflects Article 14(3)’s requirement that the teaching of the minority language does not prejudice the learning of the official language. For instance, in its second opinion on Kosovo, it insists on the need to provide the Serbian community with the opportunity to learn Albanian, as well as for Albanian pupils to learn Serbian.22 This concern is consistent with the intercultural approach to education, which presupposes that each community learns about the language and culture of other groups. But as a matter of evidence, allowing the minority to acquire proficiency in the majority language also responds to another objective: it is often essential for its socio-economic integration. In the case of Azerbaijan, in particular, the Committee deplores the absence of a policy aimed at enabling minority adults who do not have a full command of the state language to learn it, noting that as a result ‘many persons belonging to national minorities have, reportedly, faced difficulties upon access to the labour market, in particular public service jobs, where strict language requirements have been introduced’.23 This approach has led the Committee to strongly support the development of bilingual education, that is schools where both minority and majority languages are at a similar level of importance, spread across curricula and teaching, and where classes are to the extent possible composed of pupils and teachers from different groups.24 In its Commentary on Education it observes that a ‘spirit of bilingualism and plurilingualism’ per meats the whole Framework Convention.25 For, Fernand De Varennes and Patrick Thornberry, the Committee manifests a preference for bilingual approaches to education, although it has not articulated a clear normative

Third Opinion on Croatia, 27 May 2010, ACFC/OP/III(2010)005, para. 166 and 169; Third Opinion on the Slovak Republic, 28 May 2010, ACFC/OP/III(2010)004, para. 161 and 171; Second Opinion on Kosovo, 5 November 2009, ACFC/OP/II(2009)004, para. 209. See also Commentary on Education, op. cit., p. 25. 21 Commentary on Education, op. cit., p. 15. Note that Article 14(3) FCNM lays down that the obligation to ensure that minorities have adequate opportunities for being taught the minority language or receiving instruction in this language, shall be implemented without prejudice to the learning of the official language or the teaching in this language. 22 Second Opinion on Kosovo, 5 November 2009, ACFC/OP/II(2009)004, para. 195 and 225. 23 Second Opinion on Azerbaijan, 9 November 2007, ACFC/OP/II(2007)007, para. 148. 24 Commentary on Education, op. cit., p. 16. The explanatory report of the FCNM indicates that bilingual education ‘may be one of the means of achieving the objective’ of Article 14(2) (Explanatory Report, para. 77). 25 Commentary on Education, op. cit., p. 16. the multiple dimensions of minorities’ right to education 99 perspective on this.26 Such solution indeed allows to meet at the same time the demands of Articles 12(1), 12(2) and 14: it helps promoting interactions and dialogue between the different communities, while enabling the minority to preserve its own language and permitting the majority to learn about minorities’ culture.27 Thus, in its opinion on Croatia, the Committee invites the authorities to ‘consider encouraging bilingual and dual medium education models, which would attract children from majority and minority backgrounds.’28 In the same vein, it strongly recommends the Estonian authorities to envisage the creation of bi-lingual classes and schools for Estonian as well as for Russian-speaking pupils.29 In a context where the school environment is still divided between Estonian and Russian language schools, bilingual classes are viewed as a way to ‘bring together pupils from different language backgrounds and enable them to learn both languages while promoting inter-ethnic contacts and networks and thereby contributing to the aim of the Estonian Government to create a more cohesive society.’30 The Committee, however, has not elaborated on the factual conditions that need to be met to make bilingual education possible, if not mandatory. Its Commentary on education contents itself with highlighting that a number of factors can influence the determination of what constitutes the most appropriate solution in a given country, such as the degree of concentration of minorities in certain areas, the cultural and political context, the level of language proficiency of children in the minority language, the availability of textbooks, and financial resources.31

1.2. The Question of Separate Minority Schools Despite the preference it expresses in a number of opinions for the inclusion of the teaching of minority culture and language in mainstream schools, the Committee does not necessarily oppose the institution of separate minority schools, whether public or private, provided attendance

26 F. De Varennes and P. Thornberry, op. cit., at 423 and 427. 27 Commentary on Education, op. cit., p. 25. 28 Third Opinion on Croatia, 27 May 2010, ACFC/OP/III(2010)005, para. 169 (our emphasis). 29 Third Opinion on Estonia, 1 April 2011, ACFC/OP/III(2011)004, para. 140. 30 Id., para. 138. For other examples of recommendation of bilingual education, see, in particular, Third Opinion on Finland, 14 October 2010, ACFC/OP/III(2010)007, para. 136 and Third Opinion on Hungary, 18 March 2010, ACFC/OP/III(2010)001, para. 118. 31 Commentary on Education, op. cit., p. 18. 100 julie ringelheim of such establishments is voluntary.32 In view of specific circumstances, it sometimes admits that this can be the most adequate option to enable minority pupils to learn their language. In the case of Cyprus, it ‘welcomes the fact that the authorities have continued to subsidise access to private schools by Armenian, Latin and Maronite children as an alternative for those among them who find the educational provision of the public system inadequate to their needs.’33 In its opinions on Germany, noting that ‘private Danish language schools are the only option open to children belonging to the Danish minority wishing to receive education in their own language’, it encourages the authorities to fund transport costs to these schools to the same extent as they do for pupils attending public schools.34 But even where this solution is preferred, the state is still under an obligation to encourage intercultural dialogue and contact, within and outside educational environments, as prescribed in the FCNM.35 Yet, the Committee remains vague on the ways in which this requirement is to be implemented in such a context. Commenting on the programmes developed by one private catholic school established in Nicosia, in Cyprus, the Committee stresses with approval that it ‘offers a curriculum with a multi- ethnic and multicultural approach and, in addition to Latins, takes Greek Orthodox Cypriots, Maronites, Armenians and young people from other religious and ethnic communities. The teaching staff includes teachers from the various communities.’36 But it is unclear whether this implies that as a general matter states should take action to ensure that this sort of conditions are respected by private minority schools. While the Committee does not, as a rule, object to the existence of distinct minority schools, in some circumstances it has expressed deep concern that such arrangements conflicted with Article 12(1)’s requirement to facilitate contacts among students and teachers of different communities. In its two opinions on Kosovo, in particular, the Committee deplores the continuous operation of ‘parallel schools’, financed by the Serbian Ministry of Education and following the Serbian curriculum, which ‘means

32 The right of minorities to set up and manage their own private educational establishment is, as noted above, protected under Article 13 FCNM. On this provision, see P. Thornberry, ‘Article 13’, op. cit. 33 Third Opinion on Cyprus, 19 March 2010, ACFC/OP/III(2010)002, para. 147. Article 13(2) lays down that the right of minorities to set up their own private educational establishments shall not entail any financial obligation for the Parties. 34 Third Opinion on Germany, 27 May 2010, ACFC/OP/III(2010)003, para. 151–154. 35 Commentary on Education, op. cit., p. 18. 36 Third Opinion on Cyprus, 19 March 2010, ACFC/OP/III(2010)002, para. 147. the multiple dimensions of minorities’ right to education 101 the de facto existence of a separate school system.’37 It highlights that the ‘possibility for Serb and Albanian pupils to interact in the context of the school system is often non-existent and their mere co-existence in the same school is also difficult to achieve.’38 Accordingly, it urges the authorities to increase their efforts to promote interaction between pupils from different communities, in particular the Serbian and Albanian ones.39 Similarly, commenting on the situation in Bosnia and Herzegovina, the Committee declares itself deeply concerned about the development of mono-ethnic schools, ‘which institutes de facto segregation of pupils by ethnic origin from the very beginning of their schooling.’40 It calls upon the authorities ‘to take far more determined measures to end segregation of pupils according to their national or ethnic origin, to promote multi- ethnic education and to impose more widespread application of the common core curricula.’41 Yet, the Committee’s observations in this regard remain context-specific. As stressed by Kristin Henrard, it stops short of providing a general reflection on the impact of separate minority education on the integration of minorities within society and on the conditions to be met for such system to be compatible with the Framework Convention.42 To sum up, while different schooling arrangements may be compatible with the Framework Convention, the solution most favoured by the Advisory Committee is the inclusion of minorities in mainstream education establishments attended by majority children. Yet, such model is promoted under the condition that the instruction provided in common institutions is widened and transformed to also reflect the perspectives and identities of minorities. The promotion of multicultural and intercultural education precisely allows to meet minorities’ right to transmit their culture and identity in such a framework. In addition, by promoting

37 First Opinion on Kosovo, 25 November 2005, ACFC/OP/I(2005)004, para. 85. 38 Id., para. 86. 39 Id., para. 86 and Second Opinion on Kosovo, 5 November 2009, ACFC/OP/II(2009)004, para. 195. 40 Second Opinion on Bosnia and Herzegovina, 9 October 2008, ACFC/OP/II(2008)005, para. 170. 41 Id., para. 173. Comp. with the Commentary to the UN Declaration, which states that the ‘formation of more or less involuntary ghettos where the different groups live in their own world without knowledge of, or tolerance for, persons belonging to the other parts of the national society would be a violation of the purpose and spirit of the Declaration.’ (A. Eide, Commentary to the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, op. cit., para. 69). 42 K. Henrard, ‘Tracing visions on Integration and/of Minorities’, op. cit., at 358. 102 julie ringelheim interactions between pupils from different ethnic, religious or linguistic backgrounds and fostering knowledge of minority cultures among majority children, it also contributes to a better integration of minorities in society. But its effects are not limited to minorities: it is the content and nature of the education delivered to all children that is eventually widened and diversified.

2. Minorities’ Right to Education and Equal Opportunities

The norm of non-discrimination, as established in various international human rights instruments, entails that minorities must have the opportunity to access, and benefit from, the state education system on an equal footing with the rest of the population.43 Blatant exclusion of certain pupils from schools based on their ethnic origin, religion or language, would undoubtedly constitute discrimination. But beyond such non- contentious statements, the actualization of equal opportunities in education, and its relation to the issue of separate v. integrated schooling, may raise thorny questions. First of all, educational policies include a myriad of selection and distinction practices, allegedly based on criteria such as pupils’ achievements, results to ability test, language proficiency or psychological assessments, which may result in certain children being assigned to different schools or different classes and not receiving the same instruction as others. When such measures appear to especially impact on one specific minority, can they be considered as amounting to discrimination? And if so, under what circumstances? (2.1) Secondly, where an ethnic community is especially disadvantaged or speak a language different from the language of education, children may encounter difficulties in following the same curriculum as other pupils. This may translate in significantly higher drop out or failure rates. Hence, the question may be raised whether integrated schooling, without more, is sufficient to promote effective equal opportunities for minorities in such situation. (2.2).

43 The prohibition of discrimination in education is laid down, in particular, in the 1960 UNESCO Convention on Discrimination in Education; Art. 2, combined with Art. 13, ICESCR; Art. 2, combined with Art. 28 and 29, CRC; Art. 14 ECHR combined with Art. 2 of its first Protocol; Articles 4 and 12(3) FCNM. See also the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, O.J. L 180, 19/07/2000, p. 22 (hereinafter the EU Race Equality Directive), which prohibits race and ethnic discrimination inter alia in the field of education. the multiple dimensions of minorities’ right to education 103

2.1. Separation as Discrimination The question of what constitutes discrimination in education has been at the centre of a series of cases brought before the European Court of Human Rights in the years 2007–2010, namely D.H. and others v. the Czech Republic (13 November 2007), Sampanis and others v. Greece (2 June 2008) and Orsus and others v. Croatia (16 March 2010). They all concerned the situation in the education system of the Roma community – a group largely considered as the most deprived minority in Europe.44 The practices complained of by the applicants were different. But they all represented policies which, on their face, were not based on race or ethnic origin, and yet in fact disproportionately or exclusively affected Roma children, resulting in their isolation from other pupils in the educational sphere. The problem for the Court was thus to determine to what extent and on what basis such measures could be deemed discriminatory. In D.H. and others,45 at stake was the impact on Roma of the Czech Republic’s practice of placing children considered as presenting ‘mental deficiencies’ in ‘special schools’, where instruction was significantly inferior to that delivered in ordinary schools. The applicants were 18 Roma pupils who claimed that their assignment to such schools amounted to ethnic discrimination. The Government, however, submitted that it was as a result of their low intellectual capacity, measured through psychological tests, that they had been assigned to these institutions.46 Yet the applicants highlighted that, as attested by various international reports, including opinions of the Advisory Committee on the FCNM,47 the number of Roma children placed in these schools was disproportionately high.

44 See inter alia T. Ahmed, The Impact of EU Law on Minority Rights (Hart: Oxford, 2011), pp. 173–193; D. Ringold, M.A. Orenstein and E. Wilkens, Roma in an Expanding Europe. Breaking the Poverty Cycle (World Bank, Washington DC, 2005), European Commission, The Situation of the Roma in an Enlarged European Union (European Communities: Brussels, 2004); OSCE High Commissioner on National Minorities, Report on the Situation of Roma and Sinti in the OSCE Area (2000). 45 Eur. Ct. H.R. (Grand Chamber), D.H. and others v. The Czech Republic, Judgment of 13 November 2007. The case was first decided by a chamber which held, by six votes to one, that the facts did not disclose any discrimination: Eur. Ct. H.R. (2d Section), D.H. and others v. The Czech Republic, Judgment of 6 February 2006. Following the request for referral of the applicants, this decision was reversed by the Grand Chamber which, by a majority of thirteen votes to four, ruled that there had been a violation of Article 14 read in conjunction with Article 2 of Protocol 1. 46 D.H. and others, 13 November 2007, § 197. 47 Advisory Committee on the FCNM, First Opinion on the Czech Republic, ACFC/INF/ OP/I(2002)002, 6 April 2001, para. 61. 104 julie ringelheim

Crucially, the Court accepted to examine the facts of the case in the light of this broader context. From this perspective, it admitted that as a general matter the school assignment policy in place in the Czech Republic had a disparate impact on Roma children compared to non-Roma.48 This permitted to establish a presumption that the measure complained of by the applicants was discriminatory – which the government could try to rebut.49 Discussing the relevance of the psychological tests adduced by the government to justify the contested decisions, the Court observes that various independent bodies have put into question their adequacy and reliability. There were reasons to suspect that they were biased against Roma and that the results were not analysed in the light of the specific characteristics of this minority. Accordingly, they could not provide an objective and reasonable justification for the impugned measure. The applicants, therefore, had been discriminated against in the enjoyment of their right to instruction.50 This represents a landmark judgment in several respects. In particular, the Court, taking inspiration from EU antidiscrimination law, recognises the notion of ‘indirect discrimination’:51 discrimination may result from a general policy or measure which, although it does not explicitly distinguishes based on a prohibited ground, in practice has a disproportionate prejudicial effect on a particular group compared to other groups.52 The Court, moreover, makes clear that no intention to discriminate is required

48 Id., § 193. This is one of the crucial points on which the Grand Chamber’s analysis differed from that of the second chamber. See inter alia M. Goodwin, ‘Taking on racial segregation: the European Court of Human Rights at a Brown v. Board of Education moment?’, 3 Rechtsgeleerd Magazijn THEMIS (2009) pp. 114–126, esp. at 118–119; R. Medda- Windischer, ‘Dismantling Segregating Education and the European Court of Human Rights. D.H. and Others vs. Czech Republic: Towards an Inclusive Education?’, European Yearbook of Minority Issues, Vol. 7, 2007/8 (Leiden: Martinus Nijhoff, 2010), pp. 19–55, esp. at 22–25; E. Dubout, ‘Vers une protection de l’égalité “collective” par la Cour européenne des droits de l’homme (En marge de l’arrêt D.H. et autres c. République tchèque du 7 février 2006)’, 68 Revue trimestrielle des droits de l’homme (2006) pp. 851–883. 49 D.H. and others, 13 November 2007, § 195. 50 Id., § 207. 51 See R. Medda-Windischer, ‘Dismantling Segregating Education…’, op. cit., at 31–33 and E. Dubout, ‘L’interdiction des discriminations indirectes par la Cour européenne des droits de l’homme : rénovation ou révolution? Epilogue dans l’affaire D.H. et autres c. République tchèque’, 75 Revue trimestrielle des droits de l’homme (2008) pp. 821–856. 52 D.H. and others, 13 November 2007, § 184. On the notion of indirect discrimination, see inter alia D. Schiek, L. Waddington and M. Bell (eds), Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (Hart Publishing, 2007); K. Henrard, The Impact of International Non-Discrimination Norms in Combination with General Human Rights for the Protection of National Minorities: the European Convention on Human Rights, Report prepared for the Committee of Experts on Issues Relating to the Protection of National Minorities (Strasbourg, 25 October 2006), DH-MIN(2006)020; and the multiple dimensions of minorities’ right to education 105 for the discrimination to exist: the sole fact that a measure has a disparate impact on a minority is sufficient to establish the existence of differential treatment – whatever the intent behind the policy.53 This opens the possibility of addressing structural or systemic forms of discrimination.54 But curiously enough, although the judgment has been widely perceived in the literature as condemning segregating practices in education,55 the Court does not use the term ‘segregation’. This has been criticised by Morag Goodwin: by avoiding this concept, the Court fails to clearly identify the harm done to misplaced children and to declare segregation per se as invidiously evil.56 In this regard, the ECtHR’s judgment compares unfavourably with the United States Supreme Court decision Brown v. Board of Education of Topeka,57 which stated that ‘[t]o separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone’.58 Nonetheless, the European Court in D.H. does acknowledge that the prejudice experienced by the applicants resulted not only from the lower level of education they received in special schools, but also from the fact that ‘they were isolated from pupils from the wider population.’ For both these reasons, the schooling arrangements for Roma children ‘compounded their difficulties and compromised their subsequent personal development instead of tackling their real problems or helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population.’59 The Court implicitly

Ch. Tobler, Limits and Potential of the Concept of Indirect Discrimination, European Network of Legal Experts in the Non-Discrimination field (European Commission, DG Employment Social Affairs and Equal Opportunities, September 2008). 53 D.H. and others, 13 November 2007, § 184. On the significance of this judgment in the evolution of the European Court’s case-law in relation to Roma, see inter alia R. Sandland, ‘Developing a Jurisprudence of Difference: The Protection of Human Rights of Travelling Peoples by the European Court of Human Rights’, 8(3) H.R.L.R. (2008) 475–516, at 511–513. 54 R. Medda-Windischer, ‘Dismantling Segregating Education and the European Court of Human Rights…’, op. cit., at 40. On the notion of systemic discrimination, see inter alia R. Craig, Systemic Discrimination in Employment and the Promotion of Ethnic Equality (Leiden, Boston: Martinus Nijhoff, 2007) and Ph. Bataille, Le racisme au travail (Paris: La Découverte, 1997) pp. 114–119. 55 See for instance the title of the aforementioned article by R. Medda-Windischer: ‘Dismantling Segregating Education and the European Court of Human Rights. D.H. and Others vs. Czech Republic: Towards an Inclusive Education?’ (op. cit.). 56 M. Goodwin, ‘Taking on racial segregation…’, op. cit., pp. 122–123. 57 347 U.S. 483 (1954). 58 Chief Justice Warren, delivering the opinion of the Court, quoted by M. Goodwin in ‘Taking on racial segregation…’, op. cit., p. 115. 59 D.H. and others, 13 November 2007, § 207 (our emphasis). 106 julie ringelheim recognises that schooling is not only aimed at the acquisition of knowledge and skills, but also serves to integrate children into society and that this is especially important in the case of minorities. In subsequent case law, it will observe that education is ‘a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions’ and that ‘in order to achieve pluralism and thus democracy, society has an interest to integrate minorities’.60 While D.H. concerned the problem of special schools, Sampanis and others v. Greece61 raised the issue of special classes created in common education institutions. The applicants complained that, after having first being denied enrolment in a primary school, they were placed in distinct classes, located in an annex to the main building of the school, allegedly because of their reading and writing deficiencies. Various elements however suggested that the measure was in fact aimed at separating them from other children because of their ethnic origin: only Roma were assigned to these so-called ‘preparatory’ classes, this decision was not based on an objective assessment of their abilities nor were their progress periodically reviewed. Moreover, these classes had been created in a context marked by racist incidents, with non-Roma parents violently protest- ing against the admission of Roma children to the school.62 And the government could not provide any example of pupil who had been integrated in a regular class after having attended a special class.63 In view of all these circumstances, the Court rules that the assignment of children to these special, separate, classes amounted to discrimination.64 Noticeably, the Court does not examine the quality of instruction delivered to these children: it considers that the mere fact that school authorities separated pupils based on their race or ethnicity was in itself discriminatory.65

60 Eur. Ct. H.R. (4th section), Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria, Judgment of 21 June 2011, para. 55. See also Konrad and others v. Germany, where the Court deemed that, in view of the importance of integrating minorities through education, German authorities could legitimately refuse to accede to the demand of parents belonging to a minority Christian denomination to educate their children at home in conformity with their religious beliefs (Eur. Ct. H.R. (5th section), Konrad and others v. Germany, decision of 11 September 2006 (Appl. No. 35504/030)). 61 Eur. Ct. H.R. (1st section), Sampanis and others v. Greece, 5 June 2008 (in French only). 62 Id., § 82. 63 Id., § 90. 64 Id., § 96. See the analysis of R. Medda-Windischer in ‘Dismantling Segregating Education…’, op. cit., at 50–51. 65 Here too, however, Morag Goodwin deplores that ‘the Court avoided making a comprehensive statement condeming segregation.’ (‘Taking on racial segregation…’, op. cit., p. 124). the multiple dimensions of minorities’ right to education 107

The facts at issue in Orsus and others v. Croatia66 were less straightfor- ward than in D.H. and Sampanis. Here too, the Court was confronted with the practice of creating special Roma-only classes in mainstream schools. The government justified this measure on the ground that the concerned pupils lacked adequate command of the Croatian language. It argued that this policy was aimed at addressing Roma’s specific needs and that those assigned to these classes could re-integrate standard classes once they had reached an adequate level of Croatian. The applicants, by contrast, claimed that their placement in separate classes was due solely to their ethnic origin.67 In other words, they alleged direct discrimination. Various international human rights bodies had criticised the practice complained of.68 The Advisory Committee on the FCNM, in particular, had expressed concern ‘about reports that in certain schools, Roma children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils.’69 The ECtHR, however, accepts the explanation of the government that the measure was primarily motivated by the children’s lack of language skills rather than their ethnic

66 Eur. Ct. H.R. (Grand Chamber), Orsus and others v. Croatia, Judgment of 16 March 2010. Like in D.H. and others, the case was first decided by a chamber which ruled unani- mously that the applicants had failed to prove that they had been the victim of discrimination: Eur. Ct. H.R. (1st section), Orsus and others v. Croatia, Judgment of 17 July 2008. Here too, the decision was reversed by the Grand Chamber but this time with a short majority of nine to eight. On the chamber’s decision, see inter alia the criticisms of R. Medda- Windischer, ‘Dismantling Segregating Education…’, op. cit., at 51–52 and L. Cariolou, ‘Recent Case Law of the European Court of Human Rights Concerning the Protection of Minorities’, European Yearbook of Minority Issues, Vol. 7, 2007/8 (Leiden: Martinus Nijhoff, 2010), pp. 513–544, at 539–540. 67 See the arguments of the applicants as summarised in the chamber decision: Orsus and others (1st section), Judgment of 17 July 2008, § 55. See also the explanations provided by the European Roma Rights Centre lawyer responsible for the case: A. Danka, ‘The European Court of Human Rights Missed the Opportunity to Recognise that Segregation in Education can also take place in Mainstream Education’, 1 Roma Rights Journal (2008) pp. 75–80. The applicants also initially claimed that their placement in Roma-only classes constituted degrading treatment prohibited under Article 3 of the Convention. The chamber’s judgment held that they had failed to establish that they had been subject to ill treatment within the meaning of this provision (Orsus and others (1st section), Judgment of 17 July 2008, § 39). See the comments of M. Goodwin in ‘Taking on racial segregation…’, op. cit., p. 125. 68 See the reports quoted in Orsus and others (Grand Chamber), 16 March 2010, §§ 65–72. 69 Advisory Committee on the FCNM, First Opinion on Croatia, ACFC/INF/ OP/I(2002)003, 6 April 2001, para. 49. See also Advisory Comittee on the FCNM, Second opinion on Croatia, ACFC/OP/II(2007)004, 1 October 2004, para. 129 and 131; the European Commission against Raciam and Intolerance, Third Report on Croatia, published on 17 December 2004, para. 143; Commissioner for Human Rights, Report on his visit to the Republic of Croatia, 14–16-June 2004, para. 30–32. 108 julie ringelheim origin. Determining in its view as the fact that, unlike in the Sampanis case, not all Roma pupils were placed in these classes: it was not a general policy to automatically place them in such classes.70 At the same time, only Roma were affected by this treatment: the measure therefore had a disproportionate impact on this minority. Hence it was necessary to assess whether it had a legitimate aim and whether the means used were necessary and proportionate.71 The Court thus sees the issue as one of potential indirect rather than direct discrimination.72 From this perspective, the central problem for the Court was to determine how to distinguish what constitutes acceptable special measures designed to respond to a minority’s particular educational needs from policies amounting to de facto segregation. The Court acknowledges that ‘temporary placement of children in a separate class on the grounds that they lack an adequate command of the language of education is not, as such, automatically contrary to Article 14 of the Convention.’ In some circumstances, such placement can be deemed as pursuing ‘the legitimate aim of adapting the education system to the specific needs of the children.’73 However, where such a measure affects exclusively or disproportionately the members of one ethnic group, appropriate safeguards need to be put in place to ensure that it does not result in discrimination.74 Three criteria are put forward by the Court in this regard: the initial placement of children in special classes must be based on a clear legal basis and on objective testing of the children’s skills;75 the curriculum must be effectively designed to address their needs and enable them to be integrated into mixed classes in the shortest time possible;76 a procedure must be in place to monitor their progress and ensure their eventual transfer to mixed

70 Orsus and others (Grand Chamber), 16 March 2010, § 152. 71 Id., § 155. 72 Id., § 153. The Court’s reasoning is somewhat ambiguous as it underlines that international reports indicate the existence of a context of hostility towards Roma in various schools in Croatia, with non-Roma parents opposing the introduction of mixed classes instead of separate classes (§ 154). This could have been taken as an element suggesting that the contested measure, although allegedly based on language skills, in fact dissimu- lated direct ethnic discrimination. But the Court chose not to delve into this question. It preferred to start from the premise that there was no discriminatory intent on the part of the State and to concentrate on examining the modalities of the contested policy in order to assess whether there was a reasonable relationship of proportionality between the means used and the aim ‘said to be pursued’ (§ 184). 73 Id., § 157. 74 Id., § 157. 75 Id., §§ 158–162. 76 Id., § 165. the multiple dimensions of minorities’ right to education 109 classes.77 None of these conditions were met in Orsus. There were no adequate safeguards in place capable of ensuring that the contested policy was not discriminatory. ‘It follows that the placement of the applicants in Roma-only classes at times during their primary education had no objective and reasonable justification.’78 Importantly, in reaching this conclusion, the Court was also sensitive to the special position of the Roma, which it describes as an especially disadvantaged and vulnerable minority, requiring special protection.79 Taken together, these three judgments entail that state practices which result in separation of a disproportionate number of minority children from other pupils in the education system, are, if not necessarily discriminatory, at least inherently suspect of constituting discrimination, especially when they affect a particularly vulnerable and disadvantaged community. This applies whether or not the actual intention of policy- makers is to exclude or segregate: a practice which, on its face, is based on neutral criteria, such as language skills or learning abilities, may, nonetheless, be deemed discriminatory if it has a disproportionate detrimental impact on children belonging to a specific minority. The Court’s concern is not only to ensure that all children receive an education of the same quality, it is also to prevent isolation of minorities in the educational sphere because it compromises their integration in society. Integrated education is not only seen as instrumental in guaranteeing that different groups in society have access to an education of equal value, it is also viewed as a good in itself. The fact remains that not all forms of separation in education will be considered as discrimination. Firstly, minorities may voluntarily opt for specific education institutions which correspond to their linguistic or cultural aspirations. As noted above, minority instruments acknowledge the right to set up their own private educational institutions. A state could also decide to create or fund public schools in a minority language or religion. Yet, as recognised in the UNESCO Convention against Discrimina tion in Education, certain safeguards must be in place in order to ensure that such arrangements remain compatible with the non-discrimination norm. The Convention thus lays down that the establishment, for religious or linguistic reasons, of ‘separate educational systems or institutions’, do not constitute discrimination provided that two conditions

77 Id., §§ 172–175. 78 Id., § 184. 79 Id., § 147. See also D.H. and others, § 182 and Sampanis and others, § 72. 110 julie ringelheim are met: attendance at such institutions is optional and the education provided conforms to general standards formulated by competent authorities.80 Secondly, states may legitimately adopt ‘temporary special measures’ to compensate the particular disadvantage experienced by certain groups and bring about de facto equality. As stressed by the UN Committee on Economic, Social and Cultural Rights, such measures do not violate the right to non-discrimination in education ‘so long as they do not lead to the maintenance of unequal or separate standards for different groups, and provided they are not continued after the objectives for which they were taken have been achieved.’81 But as the facts in Orsus suggest, in some situations, there may be a fine line between special measures aimed at addressing a minority’s specific needs and de facto discriminatory practices. The ‘special needs’ arguments may be used as a pretext to implement a policy which in truth aims at excluding minority pupils from mainstream education. Even well-intended measures may produce discriminatory results where they lead to permanent isolation of certain groups in education, thereby hampering their social integration. The risk is especially high where the allegedly remedial policy involves the creation of separate classes composed predominantly or exclusively of children belonging to a minority. Hence, the thrust of the safeguards required by the Court in Orsus is precisely to guarantee that the assignment of minority children to separate classes remains temporary and that they are eventually re-integrated into mainstream classes.

2.2. Beyond Integration: The Necessity of Remedial Measures As the ECtHR’s case law makes clear, minorities are entitled to be protected against state policies which isolate them from other pupils and exclude them from mainstream education. In other words, they have a right to integrated education, that is a right to be included in the same education structures as all other children. Yet, providing equal access to common educational facilities is not necessarily sufficient to ensure that minorities actually enjoy equal opportunities in education. Children

80 Article 2, b). See also Committee on Economic, Social and Cultural Rights, General Comment No. 13, The Right to Education (Art. 13 of the Covenant), 8 December 1999, E/C.12/1999/10, para. 33. 81 Committee on Economic, Social and Cultural Rights, General Comment No. 13, The Right to Education (Art. 13 of the Covenant), para. 32. See also Article 2(2) of the Convention on the Elimination of All Forms of Racial Discrimination. the multiple dimensions of minorities’ right to education 111 belonging to especially disadvantaged communities often experience all sorts of barriers which hinder their ability to draw a real benefit from the instruction provided in such institutions, especially when they have to compete with classmates from a more privileged background. Absent any remedial measure designed to redress their initial disadvantage, such as additional tuition or the intervention of educational assistants (see infra), this may translate in higher failure rates and significant gaps in educational attainment. Lower levels of education in turn contribute to perpetuate the minority’s disadvantaged position in society. This phenomenon is well illustrated by the observations of the Advisory Committee on the FCNM. Many of its country opinions highlight the difficulties and failure faced by certain minorities, in particular the Roma, in the mainstream education system. Recurrently, the Committee expresses concern at the problem of low level of attendance of Roma in educational establishments and drop out ratio that are notably higher than average.82 Commenting on D.H. and others, Morag Goodwin observes that ‘segregation is one, very visible, reason why Romani children do not receive the education that they are entitled to, but it is not the only one, and perhaps it is not even the most important one.’83 Indeed, integrated education, if not accompanied by appropriate supportive measures for minorities who need it, may result in very unequal educational outcomes, which seriously undermine the objective of societal integration. To put it differently, integrated education, without more, may guarantee formal equality but not necessarily substantive equality.84 In view of these facts, the question may be raised whether the failure by state authorities to introduce remedial measures in order to tackle the difficulties experienced by a particularly vulnerable minority in education, could amount in some cases to discrimination. The European Court of

82 See e.g. Third Opinion on Finland, 14 October 2010, ACFC/OP/III(2010)007, para. 129; Third Opinion on Hungary, 18 March 2010, ACFC/OP/III(2010)001, para. 104; Second Opinion on Kosovo, 5 November 2009, ACFC/OP/II(2009)004, para. 206. See also L. Farkas, Segregation of Roma children in Education. Addressing Structural Discrimination through the Race Equality Directive (European Commission, DG for Employment, Social Affairs and Equal Opportunities, 2007), esp. pp. 10–13. 83 M.E.A. Goodwin, ‘Multi-dimensional exclusion: Viewing Romani poverty through the nexus of race and poverty’, in D. Schiek & V. Chege (Eds.), European Union discrimination law: Comparative perspectives on multidimensional equality law (London: Routledge, 2008), 39–62, p. 149. 84 On these notions, see inter alia Henrard, 2006, pp. 5–6; S. Fredman, Discrimination Law (Oxford: Oxford University Press, 2002); C. Barnard and B. Hepple, ‘Substantive Equality’, 59 Cambridge Law Journal (2000); 562–585. 112 julie ringelheim

Human Rights has hinted at this possibility when asserting that ‘in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of’ Article 14 of the Convention, which forbids discrimination.85 In Thlimmenos v. Greece, it stated that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention could be violated ‘when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.’86 Nonetheless, the Court so far has never found a state to be in breach of its non-discrimination obligations for failing to adopt positive action measures to address a minority’s special socio-economic needs. However, some international provisions do contain more explicit requirements in this regard. Under Article 12(3) FCNM, states must ‘promote equal opportunities for access to education at all levels for persons belonging to national minorities.’ More generally, Article 4(2) establishes the obligation to ‘adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority.’ This echoes the requirement set by Article 2(2) of the Convention on the Elimination of All Forms of Racial Discrimination to take ‘special and concrete measures’, when the circumstances warrant, to guarantee full and equal enjoyment of their human rights by certain racial groups.87 Moreover, the UN Human Rights Committee, when interpreting the general non-discrimination clause of Article 26 of the International Covenant on Civil and Political Rights, established that the principle of equality sometimes requires State parties to take affirmative action ‘in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant.’88 Country opinions of the Advisory Committee to the FCNM provide a wide range of concrete examples of special measures that can be adopted

85 D.H. and others, § 175. 86 Eur. Ct. H.R. (GC), Judgment of 6 April 2000. 87 See also Article 4 of the UNESCO Convention Against Discrimination in Education. 88 UN Human Rights Committee, General Comment No. 18: Non-discrimination, 10/11/1989, para. 10. For a discussion of the Human Rights Committee’s position in this regard, see O. De Schutter, ‘Interdiction de discriminer envers les étrangers et obligation d’intégration par le droit’, in J. Ringelheim (ed.), Le droit et la diversité culturelle (Brussels: Bruylant, 2011) 367–394, at 386–389. More generally, on the position of UN Committees on positive or affirmative action, see W. Vandenhole, UN Human Rights Treaty Bodies (Antwerp: Intersentia, 2005). the multiple dimensions of minorities’ right to education 113 by states to promote equal opportunities in education for minorities.89 The Committee especially encourages states to offer school support measures and educational assistance;90 to increase the use of Roma mediators and assistants in schools;91 to give special training to teachers working in establishment attended by a high percentage of persons belonging to minority communities;92 as well as to promote contacts between minority parents and school officials in order to develop an atmosphere of mutual trust and understanding.93 But it also stresses, from the viewpoint of equal opportunities, the importance of offering the minority the possibility to learn or receive instruction in its language at school and of promoting the knowledge of its culture and history in general education.94 For the Committee, combating social exclusion and providing cultural recognition are closely linked: the inclusion of minorities in the education system indeed requires both types of action.95

Conclusion

Minorities’ educational rights comport two fundamental dimensions: the right to equal opportunities and the right to transmit their identity through education. These concerns can be implemented through various schooling arrangements. While recognising the right of minorities to establish their own educational institutions, international human rights law generally favours integrated over separate education. The Framework Convention on the Protection of National Minorities, in particular, attaches special importance to the fostering of contacts and interactions

89 See also P. Thornberry, ‘Article 12’, op. cit., pp. 384–388. 90 Third Opinion on Norway, 30 June 2011, ACFC/OP/III(2011)007, para. 101; Third Opinion on the Slovak Republic, 28 May 2010, ACFC/OP/III(2010)004, para. 151; Second Opinion on Austria, 8 June 2007, ACFC/OP/II(2007)005, para. 147. 91 Third Opinion on Hungary, 18 March 2010, ACFC/OP/III(2010)001, para. 117; Second Opinion on Austria, 8 June 2007, ACFC/OP/II(2007)005, para. 147. 92 Second Opinion on Kosovo; Second Opinion on Austria, 8 June 2007, ACFC/OP/ II(2007)005, para. 207 and 209; Third Opinion on Hungary, 18 March 2010, ACFC/OP/ III(2010)001, para. 117. See also the Committee on the Elimination of Racial Discrimination, General Recommendation No. 27: Discrimination against Roma, 16/08/2000, para. 23. 93 Third Opinion on Finland, 14 October 2010, ACFC/OP/III(2010)007, para. 128; Third Opinion on Hungary, 18 March 2010, ACFC/OP/III(2010)001, para. 117; Third Opinion on Norway, 30 June 2011, ACFC/OP/III(2011)007, para. 101. See also the Committee on the Elimination of Racial Discrimination, General Recommendation No. 27: Discrimination against Roma, para. 24. 94 See the opinions cited above, in section 1.1. 95 See also Cullen, 1993, 156. 114 julie ringelheim between the different communities through education. The European Court of Human Rights looks with increasing suspicion at states’ practices which result in fact in isolating minority pupils from other children in the education system. Yet, simply guaranteeing equal access to existing institutions may not be enough to meet the requirements of minority educational rights: arguably, the instruction provided in mainstream establishments must itself be transformed in order to address minorities’ needs and aspirations. Two crucial changes are increasingly called for by international human rights bodies: on the one hand, the development of multicultural and intercultural forms of education in order to allow the minority to be taught, and obtain recognition of, its own culture within common schools; on the other, the introduction of special measures in order to compensate the social disadvantage experienced by certain minorities and achieve effective equality. OVERRULING MURPHY’S LAW ON THE FREE CHOICE OF IDENTITY AND THE RACIAL-ETHNIC-NATIONAL TERMINOLOGY-TRIAD: NOTES ON HOW THE LEGAL AND POLITICAL CONCEPTUALIZATION OF MINORITY COMMUNITIES AND MEMBERSHIP BOUNDARIES IS INDUCED BY THE GROUPS’ CLAIMS

András L. Pap

Consider the following paradox: while sociologists, anthropologists, constitutional scholars, philosophers and policy makers may endlessly dwell on the difficulty of benchmarking or defining membership criteria for minorities, and – armoured by powerful data protection guarantees – a number of international human rights commitments are interpreted in a way which suggest that that they recognize the free choice of identity in both the positive and the negative sense, in the real world there are no definitional or identification problems for those who engage in discriminatory behaviour. When it comes to the ill-treatment of members of various minority groups, no difficulties in definitions arise for the dis- criminating party. In fact, sometimes conceptual ambiguities may only even worsen protections provided for the victimized group. This chapter investigates the constitutional dilemma that characterizes all minority protection mechanisms, be they remedial in nature, recognizing collective ethnocultural claims, preferential treatment, or protections offered from racially motivated violence or discrimination: they need to institutionalize some kind of a definition for the targeted groups, as well as membership requirements within the community despite concerns over data protection or historically embedded moral misgivings. The failure to do so seriously impedes the prospects for efficient legal protection, as shown by the widespread practice of “ethnic cheating” or “ethno- corruption” and the reluctance to apply antidiscrimination and hate crime laws due to data protection misgivings in Eastern Europe. Also, people (the legislator, the majority, the taxpayers, and the international community) have an arguable right to properly identify the beneficiaries of the affirmative action and minority rights regimes, if not for other reasons, then due to the budgetary burdens of these policies and the responsibility for a sustainable and transparent policy-making and enforcement. 116 andrás l. pap

The issue highlights the complexity of minority identification, which is manifest in the vastly different approaches law and legal measures need to follow when providing protection from victimization in hate crimes and discrimination on the one hand, and accommodating multicultural (or other) diversity-claims on the other. I will argue that although the legislative goal to design a precise set of requirements is common to both approaches, perception will be the crucial concept in the former, while choice and identification in the latter. In what follows, I will first unfold the Murphy’s paradox on free choice of identity. I will highlight the theoretical contradictions and practical malfunctions within the reading that recognizes the free choice of identity as a principle of international minority rights protection law. I will argue that the legally undefined (thus, practically unrestrained) right to minority identification may in practice actually lead to inherent inefficiencies in rights protection, in two distinct ways. First, when it comes to protection from discrimination, or racially motivated hate crimes, hate speech, or even genocide, data protection, the subsidiary guarantee for free choice of identity in fact may become an obstacle for rights protection and may prevent authorities from prosecuting perpetrators who base their action on perceived ethno-racial identity. I will claim that external perception of ethno-national identity in certain situations consequently deems the right to choose identity illusory. The second consequence of the, in my opinion, false understanding of free of choice identity as a legal right protected by international instruments concerns remedial measures, affirmative action and minority rights as ethno-cultural claims. If we were to accept the existence of such a legal right, the subsequent lack of requirements for both minority group- recognition and membership opens the possibility for misusing these rights, enabling members of the majority to enjoy preferences they should not be eligible for, and excluding those whom these policies should be targeting. The paradox lies within the basic tenet of legal logic: if there is a right to free choice of identity allowing human beings to opt out from racial, ethnic or minority (minority) communities, the very right necessarily includes the freedom to opt in somewhere. I will argue that this is hardly something international law would set forth. Continuing the line of substantial content-focused inquiry, I will turn to analyzing the habitually used definitions and conceptualizations for minority groups and membership criteria. My aim is to motivate two claims. overruling murphy’s law on the free choice of identity 117

First, concerning minority groups, the traditional racial-ethnic-national minority terminology triad is unhelpful and I call for a more for complex, functional set of definitions, which reflect on the socio-political realities. I will claim that group-recognition is always politicized, and the form and substance of recognizing certain group’s legal and political aspirations will depend on the nature of their claims and its compatibility with the majority culture, for example the length of their historic coexistence or the basis for group-formation. My basic argument is that (i) the origin of the group; (ii) the basis for group-formation; and (iii) the aspirations, needs, and demands of the group towards the majority – minority rights may be dignity-based identity-claims; equality-based (synchronic or diachronic) justice claims, or even reciprocate disaspora claims1 –will significantly shape their perception and reception. Even though I will call for a complex set of criteria for distinguishing minority groups, including for example dignity-based identity-claims, equality-based—synchronic or diachronic—justice claims, reciprocate Diaspora claims, I will reiterate the binary anti-discriminatory and preferential treatment-seeking logic within these group-forming claims. Second, concerning the definition of membership criteria for minority groups, I will, again, argue that external perception-based group membership will need to be distinguished from choice-based affiliation criteria, which may include objective requirements. Besides purely academic interest, this project is triggered by the fact that classifications and terminology have serious political and legal consequences. For example, the American Supreme Court will always use strict constitutional scrutiny if “racial” classifications are involved in the case (which in most cases will lead to striking down the legislative act in question),2 but will often settle for a less rigorous standard, the so called

1 In certain ethno-political situations (in Hungary, for example), the approach to ethnic and national minority rights is defined by reference to ethnic kin’s Diaspora-rights (in the neighboring states). See for example András L. Pap Minority Rights and Diaspora Claims: Collision, Interdependence and Loss of Orientation. In: Osamu Idea et al (ed.) Beyond Sovereignty: From Status Law to Transnational Citizenship?, Slavic Eurasian Studies No. 9. Sapporo, 2006, Slavic Research Center, Hokkaido University, pp. 243–254. 2 Strict scrutiny is applied if either a “fundamental” constitutional right is infringed, or when the government action involves the use of a “suspect classification”. To pass strict scrutiny, the law or policy must (i) be justified by a compelling governmental interest, (ii) it must be narrowly tailored to achieve that goal or interest, and (iii) it must be the least restrictive means for achieving that interest. It is thus commonly held that strict scrutiny is “strict in theory, but fatal in fact,” since governmental restrictions on constitutional rights that undergo strict scrutiny are mostly found invalid. 118 andrás l. pap intermediate scrutiny for other, say “ethnic” groups or classifications based on “national origin”. Also, “national minorities” will enjoy international protections not afforded for other ethno-culturally defined groups like immigrants. Using examples and case studies from various jurisdictions, this chapter will argue that instead of an empty typology, the morphology of group claims is what matters. I also claim that both in distinguishing between minority groups and in conceptualizing group membership, the question of external perception and the nature of the group-related claims will be of corollary importance.

1. The Paradox of Free Choice of Identity

The free choice of (ethno-national) identity is rarely declared in an explicit form, yet it is a core principle of international minority protection law. At the level of the first semantic layer, the choice of identity, similarly to the freedom of thought or conscience, logically may not be restricted, as it is a mere intellectual and emotional (that is non-legal or political) phenomena. Seeing it as a practical matter, with applications of legal, political, and most of all fiscal nature, the free choice of identity means more than a reversed declaration of a negation, a prohibition articulated for the state not to intervene into the citizen’s life in these matters. A closer scrutiny shows that the free choice of identity has two dimensions for state responsibility: a positive and a negative one. (i) The negative aspect of the free choice of identity creates a prohibition for the state to create an official, mandatory ethno-national identity (and classifications and registries) for individuals. Thus, people have an unconditional right to opt out from any socio-legal construct that incorporates ethno-national classifications. This obligation (and people’s right to formally assimilate or integrate into the majority, or any other group) is reiterated in several international documents and domestic legislative acts. For example, according to the Council of Europe’s Framework Con vention for the Protection of National Minorities3 Article 3.1: “Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are

3 H(1995)010, Strasbourg, February 1995. overruling murphy’s law on the free choice of identity 119 connected to that choice.”4 This right to opt out is guaranteed by powerful data protection regulations. With the painful memories of the Holocaust, population transfers, and state-organized ethnic cleansing (all of which were built on easily accessible official registries containing data on ethno- national affiliation), the continental European legal framework establishes strict barriers to processing and collecting ethno-national data. Article 8 of the European Data Protection Directive5 creates a special category of sensitive data and apart from a very narrow set of exceptions (set forth by law or having the explicit consent from the person in question), prohibits the processing of data revealing racial or ethnic origin.6

4 Under the United Nations General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (A/RES/47/135, 92nd plenary meeting, 18 December 1992.) Article 3. 2. “No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration.” According to Article 1 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Adopted by General Assembly resolution 47/135 of 18 December 1992) “States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.” 5 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. 6 “1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. 2. Paragraph 1 shall not apply where: (a) the data subject has given his explicit consent to the processing of those data, except where the laws of the Member State provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject’s giving his consent; or (b) processing is necessary for the purposes of carrying out the obligations and specific rights of the control- ler in the field of employment law in so far as it is authorized by national law providing for adequate safeguards; or (c) processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his consent; or (d) processing is carried out in the course of its legitimate activities with appropriate guarantees by a foundation, association or any other non-profit-seeking body with a political, philosophical, religious or trade-union aim and on condition that the processing relates solely to the members of the body or to persons who have regular contact with it in connection with its purposes and that the data are not disclosed to a third party without the consent of the data subjects; or (e) the processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims. 3. Paragraph 1 shall not apply where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject under national law or rules established by national competent bodies to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy. 4. Subject to the provision of suitable safeguards, Member States may, for reasons of substantial public interest, lay down exemptions in addition to those laid down in paragraph 2 either by national law or by decision of 120 andrás l. pap

(ii) The positive aspect of free choice of identity encompasses the individual’s right to join a group or community.7 In such an explicit form the freedom to choose one’s identity is rarely declared in legally binding documents.8 The Hungarian minority rights act9 is one of the few notable exceptions. Its preamble states that “the right to national and ethnic identity is a universal human right” and this statement is reiterated in Article 3 (2): “The right to national or ethnic identity is a fundamental human right, and is legally due to any individual or community.” Article 7 declares that “(1) The admission and acknowledgement of the fact that one belongs to a national or ethnic minority is the exclusive and inalienable right of the individual.” Under this provision “no one is obliged to make a statement concerning minority affiliation, with the exception of … an Act or a legal provision concerning its implementation may require the individual’s declaration with regard to the exercise of some minority right.” This seems to provide a somewhat different interpretation from that provided by the Explanatory Report to the Council of Europe’s Framework Convention for the Protection of National Minorities:10 “34. Paragraph 1 firstly guarantees to every person belonging to a national minority the freedom to choose to be treated or not to be treated as such. This provision leaves it to every such person to decide whether or not he or she wishes to come under the protection flowing from the principles of the Framework the supervisory authority. 5. Processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority. Member States may provide that data relating to administrative sanctions or judgements in civil cases shall also be processed under the control of official authority. 6. Derogations from paragraph 1 provided for in paragraphs 4 and 5 shall be notified to the Commission. 7. Member States shall determine the conditions under which a national identification number or any other identifier of general application may be processed.” 7 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. 8 In the Lovelace case (Lovelace v. Canada, Communication No. R/6/24/ para. 14) the Committee clarified that if the domestic legislation confines a minority right attached to the membership in a minority community, it should be objectively and reasonably justified. The watchdog of the International Covenant on the Elimination of the 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 (Art.1, par.1 & 4) 1990. 08.22.). 9 Act LXXVII of 1993 on the Rights of National and Ethnic Minorities. 10 Refering to Article 3 f the FCPNM 3. overruling murphy’s law on the free choice of identity 121

Convention. 35. This paragraph does not imply a right for an individual to choose arbitrarily to belong to any national minority. The individual’s subjective choice is inseparably linked to objective criteria relevant to the person’s identity. 36. Paragraph 1 further provides that no disadvantage shall arise from the free choice it guarantees, or from the exercise of the rights which are connected to that choice. This part of the provision aims to secure that the enjoyment of the freedom to choose shall also not be impaired indirectly.” Similarly, the June 1990 Copenhagen Concluding Document on the Human Dimension of the CSCE, on which most multilateral and bilateral treaties build states that “to belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice. Persons belonging to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.”11 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.” According to these interpretations, the unrestrained right to freely associate oneself with a (minority) community thus clearly falls outside the scope of the “free choice of identity”, which is limited to giving freedom to opt out. It also means that actually there is an “objective” definition for the minority community (the nation, the national or ethnic minority) and the state is authorized to either establish these criteria or adopt definitions provided by non-state agents, like self-declared representatives of

11 “IV. (32) To belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice. Persons belonging to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will. … (32.6) … No disadvantage may arise for a person belonging to a national minority on account of the exercise or non- exercise of any such rights. (33) The participating States will protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity. … (35) The participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned.” 122 andrás l. pap minority communities or other (academic or political) bodies fulfilling this task. The process of how the state comes to define the objective entity with which individuals can choose to identify or declare affiliation is a different issue, falling more or less within the competence of the legislator. (Although not entirely: The practice of the AC of the FCNM limits arbitrary distinctions and endorses a more and more inclusive approach in this regard.) In my opinion, however, this interpretation is not supported by the statutory language. If we talk about the right to choose one’s identity as a legal right, the negative dimension of the right to free choice of identity logically cannot exist without the positive side. As devastating the practical consequences as they may be, if there is a right to free choice of identity allowing human beings to opt out from minority groups, the very right includes the freedom to opt in – unless the state takes the courage to define groups and membership criteria within the group. It is noteworthy that in its Recommendation 1735, in 2006 on the concept of the “nation”, the Council of Europe explicitly declared that ‘to date there was “no common European legal definition of the concept of ‘nation’”.12 In sum, the principle or right to free choice of identity as a legal right does not seem to be a theoretically coherent and practically sustainable one. The requirement of the active, affirmative involvement of the individual, accompanied with the prohibition of mandatory inclusion in the enjoyment of certain collective rights, along with the prohibition on collecting sensitive data does not create an autonomous, sui generis right (for the free choice of identity), lacking the right of choice for opting in to a chosen group.13 This unrestrained right to minority identification in both the positive and the negative (that identifying and de-identifying) sense, which, as I argued above, is a necessary and unavoidable condition for a legal right

12 Para 1. 13 As Gábor Kardos points out in this volume, the word “exist” in Article 27 of the Covenant on Civil and Political Rights should definitely be interpreted. (In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.) In its General Comment 23, the UN Human Rights Committee came to the following conclusion: “Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term “exist” connotes” (UN Human Rights Committee: The rights of minorities (Art. 27) 08/04/94. General Comment 23) Later the Committee added: “The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.”(Id.). overruling murphy’s law on the free choice of identity 123 to exist, however, it may lead to inherent inefficiencies in rights protection, in two distinct ways. First, when it comes to combating discrimination, hate crimes or hate speech, data protection, aimed at guaranteeing the free choice of identity in fact may become an obstacle for protection. Second, concerning remedial measures and collective rights, the lack of requirements for both minority group-recognition and membership opens the possibility for misusing these rights. I will bring examples for both phenomena from Hungary, yet many European states have the same or similar experiences.

(i) The Murphy-Law of Discrimination Hungary is one of the (many) countries in which extensive legal restrictions on the collection of non-anonymous data concerning ethnic, national or religious identity have prompted law enforcement authorities to simply deny that ethnicity is of significance in their actions. The data protection law14 prohibits the handling of sensitive data, such as ethnic origin, without the concerned person’s explicit permission. Unable to distinguish between perceived ethnicity and the expressions of personal declarations regarding ethno-national affiliation, officials habitually claim that the recording of the identity of racial violence victims would run against statutory provisions, even though the Criminal Code acknowledges certain racially motivated crimes,15 such as “violence against members of a community” (formerly national, ethnic or racial minorities and religious groups) or “incitement against community”, all of which presuppose membership in the given (racially or ethno-nationally defined) community. The determination of the nature of the crime upon which the indictment will be brought to court is in the sole competence of the prosecutor, who will, referring to data protection constraints, hardly ever acknowledge the quintessential ethnic component (the racial motivation) of a hate crime. In Hungary, in line with the legally articulated declaration to refrain from any kind of involuntary official classification of ethnicity, no specific legally binding instructions exist for the determination of racially motivated criminal activity. Thus, law enforcement officers, who are the prime

14 Act No. 63 of 1992. 15 The Criminal Code includes provisions on: genocide; apartheid; violence against member(s) of a community; incitement against community; ban of using totalitarian symbols; ban of denying genocide or crimes against humanity committed by totalitarian regimes. See Lídia Balogh: Racist and related hate crimes in Hungary – recent empirical findings, Acta Iuridica Hungarica, 52:4, 296–315 (2011). 124 andrás l. pap decision-makers as to the legal classification of a given offense will follow the easier way, and become very reluctant to classify incidents, conflicts as racially motivated. Although it will always be the law-school-graduate prosecutor who will decide on what grounds to indict the defendant, she will usually follow the police’s determination on the nature of the criminal offense in question. As for the police, in order to avoid making an uncomfortable and (given the widespread anti-Roma or xenophobic sentiments in Hungarian society) unpopular decision, and lacking any legally binding guidance, we see a very strong reluctance to recognize racial motivation in violent criminal behaviour. As mentioned above, the Hungarian Criminal Code criminalizes several types of behavior that may fall under the racially motivated category. While genocide and apartheid obviously never occur in official statistics, the case is also similar with “violence against members of a community.16 In recent years for example, the following number of instances had been registered:17 2 in 2005, 2 in 2006, 3 in 2007, 11 in 2008, 25 in 2009, 19 in 2010. This should by no means imply that racially motivated hate crimes and violence are rare in Hungary, but rather that law enforcement agents, as well as prosecutors and courts are reluctant to recognize racist motivation in violent and non-violent crimes committed against Roma victims and use nuisance instead.18 In general, as Farkas (2004) points out,19 with Hungarian law allowing for the handling of data on racial and ethnic origin only with the consent of the person concerned, the effect is a severe impediment on the prospect of litigation against indirect discrimination or institutional racism. If we take the authorities’ explanation at face value and accept that data protection and thereby the guarantees for the choice of ethno-national identity are used here, what are the lessons from this fallacy of the free choice discourse? The answer is simple: when it comes to abuse, discrimination and violence, the work of identifying group membership is always

16 “Violence against a member of a community” is defined by Act IV (1978), Article 174/B. 17 Source: Unified Police and Prosecution Statistical Database. 18 Even though anti-Roma incidents (with Roma being practically the only visible minority in Hungary, given the lack of large migrant communities) are virtually non- existent, in a number of recent cases, authorities actually were able to charge and sentence Roma defendants for racially motivated crimes against Hungarians. (Some of them actually being members of the extreme rightist, racist paramilitary organization, the Hungarian Guard). See http://helsinki.hu/dokumentum/General_climate_of_intolerance_in _Hungary_20110107.pdf 19 Farkas, Lilla (2004). The Monkey that does not See, Roma Rights Quarterly, 2004/2. overruling murphy’s law on the free choice of identity 125 done by the abusers and the discriminators. Choice is eliminated by the perception of the outsiders. The right to choose identity is consumed by the actions of “others”.20

(ii) The Trap of Ethno-Corruption If disregarding existing objective, or at least externally defined classifications for group affiliation was an inherently problematic and hypocritical aspect of the free choice of identity as a negative right, another, obvious fallacy concerns remedial measures, affirmative action or minority rights as ethno-cultural claims. Here the lack of requirements for both the group and membership within the group may allow members of the majority to make use of these measures.21

20 The fact that EU law recognizes discrimination on the basis of perceived ethnic affiliation as equivalent to discrimination on “actual” ethnic grounds is irrelevant for my arguments, which simply points to the external nature of ethnic classification. 21 In the case of Kosteski v.The Former Yugoslav Republic of Macedonia (13 April 2006, Application no. 55170/00) the European Court of Human Rights agreed with the government in dismissing the applicant’s claims for preferential treatment due to the failure to provide proper proof that he is a member of a religious community (in which case he would have been eligible to take extra days off from work on religious holidays.) The applicant claimed that the Government had failed to show why he should be required to prove that he belonged to a particular religion and suffer particular consequences if he failed. He argued that the requirement for unspecified evidence was an imposition on his inner conscience and made him feel of an inferior status as no others had been subject to additional conditions in order to join the Muslim religion. The Government submitted that given that the applicant’s name and way of life had not indicated membership of the Muslim confession and that he had first declared himself to be a believer in proceedings to justify his absence from work, as well as the fact that that in a period of eight years he had changed his beliefs three times, but most of all since the applicant was requesting the exercise of a right, it was not enough for him subjectively to assert the position. The Court noted that the applicant had no knowledge of the Muslim faith, did not follow its diet and had previously been observing non-working Christian holidays by taking the relevant days off. Citing cases concerning conscientious objection where the authorities were held to have legitimately required strong evidence of genuine religious objections to justify exemption from the civil duty (e.g. N. v. Sweden, no. 10410/83, Commission decision of 11 October 1984, D.R. 40 p. 203, Raninen v. Finland, no. 20972/92, Commission decision of 7 March 1996), the Court held that “while it may be that this absence from work was motivated by the applicant’s intention of celebrating a Muslim festival, [the ECHR] is not persuaded that this was a manifestation of his beliefs in the sense protected by article 9 of the convention” “While the notion of the State sitting in judgment on the state of a citizen’s inner and personal beliefs is abhorrent and may smack unhappily of past infamous persecutions, the Court observes that this is a case where the applicant sought to enjoy a special right bestowed by Macedonian law …. Where the employee … seeks to rely on a particular exemption, it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation when that claim concerns a privilege or entitlement not commonly available and, if that substantiation is not forthcoming, to reach a negative conclusion … The applicant however was not prepared to produce any evidence that could substantiate his 126 andrás l. pap

Again, let us see Hungarian experiences, from a jurisdiction where the law explicitly declares the free choice of identity. In the Hungarian model, the exercise of minority rights is not dependent on minimal affiliation requirements. For example, Deets (2002) documents how school officials pressure parents of ‘Hungarian’ students to declare their children ‘German’: “according to Hungarian government statistics, in 1998, almost 45,000 primary school students were enrolled in German-minority programs, which, by the census, was about 8,000 more than the number of ethnic Germans who are even in Hungary.”22 Hungary also established a relatively potent form of autonomous minority institution, the ‘minority self-government’ structure (bodies that exist parallel with local municipal administration), and the decision to vote at these elections was left solely to the political culture and conscience of the majority. Thus, in Hungary, citizens, regardless of their ethnic origin, can vote for minority self-government candidates. This enables members of the majority to take advantage of the various remedial measures. For example, the non-Roma wife of the mayor of Jászladány – a village notorious for segregating Roma primary school children from non-Roma – held an elected office in the local Roma minority self-government. Likewise, non-Roma parents can claim that they are Roma in order to conceal racial segregation.23 Hungarian minority representatives repeatedly claim that the fact that some candidates ran as ‘Gypsies’ in one election and then later as Germans in the following term (which is permitted by both the law and the ideal of multiple identity-formation) proves the flourishing of local ethno-business.24 Similarly, both the President of the National Romanian Minority Self-Government25 in Hungary and the (Romanian) Secretary for

claims. To the extent therefore that the proceedings disclosed an interference with the applicant’s freedom of religion, this was not disproportionate and may, in the circumstances of this case, be regarded as justified … namely, as prescribed by law and necessary in a democratic society for the protection of the rights of others.” 22 Deets, Stephen (2002). Reconsidering East European Minority Policy: Liberal Theory and European Norms, East European Politics and Society 16:1. 23 For a detailed case description see Roma Rights 2003/1–2, pp. 107–108. In the summer of 2003 the Roma Press Center’s fact finding revealed that at one point non-Romani parents signed a petition in which they too claimed to be Romani. 24 See the minority-ombudsman’s annual parliamentary reports or an interview with Antal Heizler, President of the Office for National and Ethnic Minorities, Népszabadság (the leading Hungarian daily), 2002.07.24. 25 The President did not predict that more then 7 out of the 17 local self-governments running in the 2002 elections in Budapest (and some 30 out of the 48 registered nationally) would be “authentic Romanian.” Out of the 13 local Romanian minority self-governments operating between 1998 and 2002, he estimated that only three have “real Romanian blood” overruling murphy’s law on the free choice of identity 127

Romanians Living Outside Romania26 found it worrisome that the 2002 local elections brought an increasing number of candidates for Romanian minority self-governments, while the number of those identifying themselves as Romanian in the national census is decreasing. In their view, the answer lies in the fact that “Gypsies” and Hungarian immigrants who moved from Romania are running as Romanians.27 In order to demonstrate the fallacies of the legal framework, some Roma politicians publicly decided to run under different labels (in most of the reported 17 cases, Slovakian). Also, there are several municipalities where (according to the national census) nobody identified herself as a member of any minority group, yet numerous minority candidates were registered.28 Following the 2010 elections, several new members of both the Romanian and Ukrainian minority self government were accused of not being actual members of the minority community by other members of the newly elected self government. A faction of the National Ukrainan Self-government failed to stand up during the Ukrainian national anthem, and claiming that they are Hungarian, requested that no Ukrainian be spoken during official sessions, because they do not understand it.29 In a 2010 libel case, acquitting the defendant, the editor-in-chief of a minority newspaper who called newly elected members of the Romanian minority self-government “ethno-business doers and no members of the Romanian minority community in Hungary”, a court decision formally admitted the existence of ethno-business in minority self-government elections.30 The examples of loopholes in the legal regime sometimes result in complete absurdity. In order to express their admiration of German football for example, a small village’s entire football-team registered as German minority-candidates for the election.31 On another occasion, in 2010 the mayor of a marginalized village at the edge of bankruptcy, unable to finance its public school, requested all 13 students to declare themselves running in their veins. See the summary of an interview with Kreszta Trajan, Népszabadság, 2002.08.21. 26 See the statement of Doru Vasile Ionescu in Népszabadság, 2002.08.15. 27 In 2005 the law was amended, introducing a self-assessment based registration requirement for the elections, but, according to analysts and the minority rights ombudsman, no significant changes followed in electoral behaviour and results. See his report: http://www.kisebbsegiombudsman.hu/data/files/187663711.pdf. 28 See Népszabadság, 2002.08.15. 29 See for example http://index.hu/belfold/2011/02/05/megalakult_a_szerb_es_ukran _kisebbsegi_onkormanyzat/., or http://nol.hu/belfold/kakukktojasok__balhe_a_roman _kisebbsegnel. 30 http://www.emasa.hu/print.php?id=6880. 31 Interview with Mr. Heizler, Id. 128 andrás l. pap

Roma and request minority education, which provides extra funds for the school. No Roma live in the village.32 Ethno-corruption is prevalent at many other facets of collective rights. In 2010 the parliamentary commissioner for minority rights (a specialised ombudsman) published a lengthy report showing how members of the majority benefited from a government program designed to employ members of the Roma minority community.33 Similar cases can be cited from several jurisdictions.34 Even where ethno-racial classifications are legally defined and are up to extensive judicial interpretation, such as the US for example (for a detailed case study see below). For example, in 1984, in a Stockton, California city council recall election, Mark Stebbins, a light brown haired, white skinned, blue eyed candidate publicly identified himself as “black” and ran as a black candidate.35 Also, in 1988, two Irish-American firemen were dismissed from the Boston Fire Department after finding out that they had been hired as black applicants.36 “In November, 1990 the San Francisco Civil Service Commission ruled that one firefighter was an Italian-American masquerading as a Mexican-American and thus, ineligible for an affirmative action program… Some San Francisco Hispanic firefighters have now proposed the creation of a 12 member panel of Hispanic firefighters to rule on ethnicity. They also argued that people of Spanish decent should be disqualified as Hispanics for purposes of affirmative action… ”37 In his dissent to (the affirmative action case of) Metro Broadcasting, Inc. v. Federal

32 Jozsef Nagy: Angyalok kertje, Népszabadság, 2010 July 7. http://nol.hu/lap/ gazdasag/20100707-angyalok_kertje. 33 http://kisebbsegiombudsman.hu/hir-526-rovid-osszegzes-nemzeti-es-etnikai.html. 34 The partly concurring and partly dissenting opinion of Judge Mijović, joined by Judge Hajiyev Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) case of the European Court of Human Rights holds “Power-sharing arrangements at the State level, particularly those concerning the structure of the House of Peoples and the State Presidency, provide that only those who declare affiliation with one of the three main ethnic groups are entitled to hold a position in these two State organs. It must be added that, in the context of Bosnia and Herzegovina, ethnic affiliation is not to be taken as a legal category, since it depends exclusively on one’s self-classification, which represents stricto sensu a subjective criterion. It actually means that everyone has a right to declare (or not) his or her affiliation with one ethnic group. It is not obligatory to do so. There is neither a legal obligation to declare one’s ethnic affiliation, nor objective parameters for establishing such affiliation. Affiliation becomes an important issue only if an individual wishes to become involved in politics. A declaration of ethnic affiliation is thus not an objective and legal category, but a subjective and political one.” 35 Gotanda, op. cit., 29. 36 See Ronald Rotunda, Modern Constitutional Law, Cases and Notes, American Casebook Series, West Publishing Co., 1993, p. 544. 37 Ibid. overruling murphy’s law on the free choice of identity 129

Communications Commission,38 Justice Kennedy refers to the Storer Broadcasting case,39 where the firm benefited from selling a station to the Liberman family, who qualified as Hispanic because of having traced their ancestry to Jews being expelled from the Spanish Kingdom in 1492. “If you assume 20 years to a generation, there were over 24 generations from 1492 to the Storer case. That means that Mr. Liberman was as closely related to 16,777,216 ancestors.”40 Similarly, media coverage’s mention for example, blond, blue-eyed 5 year old children being registered to prestigious kinder- gartens (guided by affirmative quotas) under “non-white” application schemes, and so forth….41 Of course, the similarities are outnumbered by the differences between the Hungarian and the American cases: in the latter jurisdiction procedures and substantive legal measures are available to overrule misusing ethnic identification as a source for preferential treatment. As argued above: in order to design a theoretically coherent and practically sustainable minority rights regime, some form of classifications and qualifications need to be included in the legal system.

2. Identifying with What? Conceptualizing Minorities

Having started with the conceptualization of the right to choose a minority identity, it is now inevitable to turn to the analysis of what kind of minority would be the object of this choice. Can we even think about a right to choose a racial minority identity, or does this right pertain only to national minorities? More importantly, what kinds of minorities are there? The following pages will focus on the conceptualization of the term “minority”. The term implies that the group in question is in an inferior position is the given society: numerically and/or otherwise. And for some reason, the very characteristics that form these groups are considered precious, sensitive or valuable and are distinguished from other

38 497 US 547, (1990). 39 “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). I agree 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. U.S. v. Storer Broadcasting Co., 351 U.S. 192 (1956). 40 Rotunda, op. cit. p. 544. 41 Ibid. 130 andrás l. pap characteristics by the very protection and recognition of this minority status: a legal and political status that is given them. Findings of the previous section allow us to conclude that some identities, personality traits or characteristics that the political class, the legislator deems valuable and worthy of recognition and protection are externally, others are subjectively defined. The question of which groups are worthy of this special recognition and protection will be a political question and always depend on the given political community: be it the international community of states drafting human rights or minority rights treaties or national legislators enacting domestic laws. Since religious and linguistic groups are easily identifiable by the very claims they make most of all for participation in social life, my analysis will be limited to groups that are defined by ancestry, physical appearance, that in other words fall under the auspices of the national-ethnic-racial minority triad, which I will try to deconstruct in the following pages. I will provide two sets of analysis: one pertaining to the conceptualization of the minority communities, and the other focusing on defining membership criteria for the group. I will argue that the classic national-ethnic-racial minority typology is unhelpful, and I offer a more complex set of criteria for classifying policies, one which reflects on the aforementioned complexity of group affiliation, and recognizes that the two sets of classifications, that is group formation and group membership, are intertwined.

(i) What Makes a Minority? In 1987 the Secretariat of the UN issued a compilation of proposals for the official definition of minorities.42 All we can abstract from the thick volume is that international documents operate with a three-element set of characteristics for minorities: ethnicity, religion and language (including and adding maybe culture), with the occasional additional elements of individual declaration and consciousness of belonging replacing sui generis pre-established communal membership as the basis and source of rights and protective entitlements. “F. Capotorti, the Special Rapporteur of the Sub-Commission of the Commission of Human Rights … defines the concept of minority as a group as follows: 1. Which is numerically inferior to the rest of the population of a state and in a non-dominant position; 2. whose members .. have ethnic, religious or linguistic characteristic which differ from the majority by virtue of language, ethnic group or

42 UN Working Doc. E/CN.4/1987/WG.5/WP1. For more see, Girasoli, op. cit. p. 33. overruling murphy’s law on the free choice of identity 131 religion; 3. Which exhibits, even implicitly, a sentiment of solidarity for the purpose of preserving their culture, traditions, religion or language.”43 As mentioned above, the concept of a minority involves an inferior position in the given society. It is important to note that there is a difference in the sociological and legal understanding of the word. In the sociological, political, and also, common sense understanding44 a minority is a group that does not make up a socially or politically dominant majority of the total population of a given society. Thus, a sociological and political minority is not necessarily a numerical minority—it may include any group that is inferior or subordinate with respect to a dominant group in terms of social status, education, employment, wealth and political power. The term is comfortably used by including people with disabilities, “economic minorities” (working poor or unemployed), “age minorities” (who are younger or older than a typical working age) and sexual minorities. In this understanding the term minority should not necessarily refer to a numerical status: given the structural disadvantages they face, women are habitually referred to as minorities, despite the fact that there are slightly more women than men in most societies.45 Drawing on the parallels of anti-apartheid and anti-(racial)discrimination international norms, in apartheid South-Africa, despite its demographic superiority, the black community could obviously have been included in the general racial minority discourse. While the socially disadvantaged position is also not unproblematic to define, there is a widespread consensus that in the legal discourse of minority rights, the numerical aspect in addition to the other kind of inferiority is an essential requirement.46 In addition to being in a socially and (or) numerically inferior position there are other group characteristics, which are essential to the minority status. As argued above, the group characteristics that are deemed worthy of special protection and recognition will vary depending on the history,

43 UN Doc. E/CN.4/Sub.2/1977/385 rev. 1, p. 102, See Nicola Girasoli, National Minorities—Who are they?, Akadémiai Kiadó, Budapest, 199536. Also see The Legal Protection Accorded to Minority Groups in Europe, Netherlands Yearbook of International Law, 1992. Vol. 23, pp. 67–104. 44 See for example http://en.wikipedia.org/wiki/Minority_group. 45 See for example Hacker, Helen Mayer. 1951. Women as a minority group. Social Forces, 30, 1951, pp. 60–69. or Eichler, Margrit: The Double Standard: A Feminist Critique of Feminist Social Science, New York: St. Martin’s Press, 1980. pp. 94–95. 46 See Kymlicka arguing against Iris Marion Young and claiming that if women were included in the minority rights discourse it would simply make the concept of collective rights unsustainable, as some 80 per cent of the population could belong one of the minority groups. See Will Kymlicka, Multicultural Citizenship. A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995): 131–151. 132 andrás l. pap political climate etc. of the given societies, as well as the history, origins of the groups, and the nature of the claims they make. One commonly believed although obviously false assumption is that immutability or the lack of choice concerning identities or group characteristics is a decisive factor in qualifying as a protected minority. Just because a person or a group could change her/its religion (as a marker or even in some cases a constitutive element of national minority identity) does not make it less worthy of protection. Similarly, Laurence Tribe argues that if a medical treatment was developed which could change skin pigmentation, thus allowing blacks to turn white, racial discrimination would nevertheless not become acceptable.47 The fundamental question is what are the moral and international or domestic legal standards for recognising or constituting minorities? In other words, which are the personal or group characteristics that constitute a basis for recognition and protection? And who is to decide? Does it fall within the competence of domestic politics or are there international standards and requirements?

(ii) Typologies for Minorities Usually typologies help understand the internal logic and substance of concepts and institutions. Traditionally,48 international law applies a threefold definition, distinguishing between national, ethnic and racial minorities. In all cases, despite the fact that the discourse on minority rights is essentially law-based, legislators and drafters of international documents refrain from defining these concepts and we have to settle with the following vague descriptions: (a) Race is a social construct (in the biological sense the entire humanity constitutes one single race) without a theoretically or politically uniform definition for races as well as membership within the racial groups. Race-based international and domestic legal instruments identify race with physical appearance and, following a perception, external identification based anti-discrimination logic, prohibit discrimination, maltreatment, violence, etc. on racial grounds. (b) Ethnicity is an even vaguer concept. First, it is a synonym for race, referring to physical appearance. For example, the Grand Chamber of

47 See Laurence Tribe, The Puzzling Persistence of Process-Based Constitutional Theory. 89 Yale L.J. 1067, 1073–1074 (1980). 48 The racial category was dropped rather early on at UN level, while the OSCE and the CoE focus on national minorities, the UN rather on ethnic, religious and linguistic minorities. overruling murphy’s law on the free choice of identity 133

the European Court of Human Rights, ruling against the Czech Republic in the segregation case of D.H. and Others v. the Czech Republic in January 2007,49 spoke about racial discrimination against the Roma minority, a group habitually referred to as an ethnic minority.50 We can thus argue that of we want grasp the substance of these definitions, in the racial and ethnic minority concept there is a common element: the protection from maltreatment (discrimination, hate crimes, hate speech, physical violence). It is the expression of the anti-discrimination principle in the broad sense, and the protected group is defined by the external perception of either biologically determined characteristics or cultural attributes. Ethnic minorities are, however, a Janus-faced group, they may have claims (and protections) that national minorities would make. The international legal terminology habitually differentiates between the two groups on the grounds that ethnic minorities are different from national minorities in the sense that they do not have nation states as national homelands.51 (c) National minorities are groups that, based on their claims for collective rights bypass the anti-discriminatory logic and seek recognition of cultural and political rights: autonomy or the toleration of various cultural practices that differ from the majority’s, and which often

49 Application No. 57328/00. 50 According to the European Court of Human Rights “Ethnicity and race are related concepts. Whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies on the basis of morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked in particular by common nationality, religious faith, shared language, or cultural and traditional origins and backgrounds. Discrimination on account of a person’s ethnic origin is a form of racial discrimination” Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06, 43. Also, the Rwanda Tribunal in the case Kayishema came to the conclusion that Tutsi formed an ethnic group because the perpetrators of genocide committed against them shared that belief thanked to the government issued identity cards describing them as such. Prosecutor v. Kayishema and Ruzindana, Judgment, 21 May 1999, para. 98. In international law the classic wisdom in this question came from the Permanent Court of International Justice stated in the Case of Greco-Bulgarian “Communities”. “The existence of communities is a question of fact; it is not a question of law.” (Permanent Court of International Justice, Advisory Opinion, Greco-Bulgarian “Communities” Ser. B. No.17, p.16) Later on the Court added that a minority community is: “a group of persons living in a given country or locality, having a race, religion, language and traditions of their own, and united by the identity of such race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, securing the instruction and upbringing of their children in accordance with the spirit and traditions of their race and mutually assisting one another.”(Ibid. p. 26). 51 See for example Hurst Hannum, International Law. In: Encyclopedia of Nationalism, Academic Press, 2001, pp. 405–419. 134 andrás l. pap

require formal exceptions from generally applicable norms and regulations. In this case we are thus dealing with claims for preferential treatment.52 The first stage of international minority rights protection, the League of Nations-era centred around national minorities.53 The universal human rights scheme under the aegis of the United Nations emphasizes the protection of racial minorities, while being ambivalent about national (ethno- cultural) minorities (especially if they are not indigenous) as far as binding international treaties go, and creates a special cluster of rights provided for aboriginal people, clearly distinguishing it as an exception from general rules on self-determination and other sovereignty-like claims.54

(iii) Membership Criteria in Minority Groups As argued above, for ethno-racial minority rights/claims following the anti-discrimination principle, subjective elements for identification with the protected group are irrelevant, and external perceptions serve as the basis for classification. Policies implementing this anti-discrimination principle may rely on a number of markers: skin colour, citizenship, place of birth, country of origin, language (mother tongue, language used), name, colour, customs (like diet or clothing), religion, parents’ origin, eat- ing habits, etc. Defining membership criteria comes up in a completely different way when preferential treatment or ethno-cultural group rights create a group with its members seeking different kinds of preferences

52 Will Kymlicka provides a somewhat reformulated account for the national-ethnic dichotomy: “Cultural minorities can be divided into two kinds, … nations and ethnicities. A nation is “a historical community, more or less institutionally complete, occupying a given territory or homeland, sharing a distinct language or culture”. An ethnic group, on the other hand, is a group with common cultural origins, but whose members do not constitute an institutionally complete society concentrated in one territory. For Kymlicka there are two kinds of multicultural societies, multinational societies and polyethnic societies, and many contemporary societies are both.” Iris Marion Young: A multicultural continuum: A critique of Will Kymlicka’s ethnic-nation dichotomy, Constellations Volume 4. no 1. Blackwell, Oxford, 1997, p 49. 53 It should be noted that while using universal language, not only did the League- structure fail to establish a universal standard for minority protection or definition, it was actually predicated on the concept of underprivileged minorities, which in most cases was actually not the case. For example, some minorities constituted majorities in the former “oppressive” empires (such as the Hungarians for instance) or the ones that were economically, socially, politically or for other reasons more developed then the majority (like the Germans in Bohemia). 54 See for example Kymlicka, Will: The Shifting International Context: From Post-war Universal Human Rights to post-Cold War Minority Rights: In. Multicultural Odysseys, Navigating the New International Politics of Diversity, Oxford, 2007, pp. 27–55. overruling murphy’s law on the free choice of identity 135 and privileges. In this case, the legal frameworks may establish a set of objective criteria that needs to be met besides subjective identification with the group. The following policy options can be distinguished: (a) the indigenous or aboriginal model, used for example in North- and Latin- merica, Australia and New Zealand; (b) European models for national minorities; (c), what Kymlicka calls generic minority rights, applicable for all groups,55 and (d) Rare, unique and atypical hybrid models for rigid classifications.

(a) The Indigenous/Aboriginal Model In the North-American, Australian and New Zealander indigenous or aboriginal model we see rigid membership requirements for the indigenous communities, where the state either provides for strict administrative definitions using some kind of an objective criteria, or it officially endorses tribal norms. In these cases the individual’s freedom to choose her identity only comes up in the context of leaving the group and excluding herself from the system of preferences. Regarding membership issues, international bodies or state authorities restrain their involvement to rare and complex cases where tribe or group membership questions arise due to peculiar interplays between indigenous/tribal and state law (often involving conflicts between internal restrictions and essential constitutional principles.) The Kitok56 and Lovelace-cases are well known examples, but there are many others. To turn to India, in the Arumugam v. S. Rajgopal57 case the issue was whether a member of the Adi Dravida caste and a Hindu converted to Christianity and reconverted to Hinduism could again become a member of the caste. The Supreme Court held that although usually conversion entails exclusion from this set of preferences, as caste is predominantly a feature of Hindu society, if the plaintiff is accepted and recognized by other caste members as a fully reinte- grated member, he may be considered so by the Court as well.58

55 Id. 56 Ivan Kitok v. Sweden, Communication No. 197/1985, CPR/C/33/D/197/1985 (1988). 57 AIR 1976 SC 939. 58 The Court also noted that not all castes set forth Hindu religion membership requirements. In these cases conversion will not necessarily lead to membership loss. According to the Court therefore “the correct test to be applied in such cases is to determine what are the social and political consequences of such conversion and that must be decided in a common sense practical way rather then on theoretical or theocratic grounds.” Singh, p. 831. A similar membership case was the N.E. Horo v. Jahanara Jaipal Singh (AIR 1972 SC 1840) where the issue was raised out of a rejection of the nomination papers of the respondent by the 136 andrás l. pap

Another interesting case concerns mixed marriages. Sometimes marrying into a group will enable spouses to be eligible for certain preferences provided for the group, but even more important are rules concerning children from mixed marriages.59

(b) – (c) The European National Minority Model The European model for national minorities usually refrains from creating strict administrative definitions for membership. In most cases a formal- ized declaration suffices, with occasional additional objective requirements, such as proven ancestry (by some sort of official documents) or the proven knowledge of the minority language. Curiously, states are more reluctant to define membership criteria in domestic minority groups than in the titular majority population, a practice often followed in legislation implementing ethnicized concepts for external dual citizenship or status law-like Diaspora provisions.60 The vaguer the requirements, as seen from the admittedly extreme Hungarian example, the risk for misusing the law increases.

Returning Officer on the ground that she was not a member of the Scheduled Tribe any- more, and was therefore not eligible to contest from the parliamentary constituency. The Court held that she actually acquired membership in the tribe upon her marriage with her deceased husband.See Singh p. 832. 59 Consider for example the Committee on the Elimination of Discrimination Against Women’s concerns raised against Canada: “17. The Committee is concerned that the Convention has not been fully incorporated into domestic law and that discriminatory legislation still exists. In particular, the Committee is concerned at the fact that the Indian Act continues to discriminate between descendants of Indian women who married non- Indian men and descendants of Indian men who married non-Indian women with respect to their equal right to transmit Indian status to their children and grandchildren. … 18. The Committee recommends that the State party ensure the full incorporation of all substantive provisions of the Convention into domestic law. The Committee recommends that the State party take immediate action to amend the Indian Act to eliminate the continuing discrimination against women with respect to the transmission of Indian status, and in particular to ensure that aboriginal women enjoy the same rights as men to transmit status to children and grandchildren, regardless of whether they have married out or of the sex of their aboriginal ancestors. It also recommends that the State party find measures to ensure that section 67 of the Canadian Human Rights Act is interpreted and applied in a way that provides full protection for aboriginal women against discrimination and full redress for any human rights violations.” Compilation of General Comments & Concluding Observations Relevant to the Rights of Indigenous Women Adopted by the Committee on the Elimination of Discrimination Against Women (CEDAW) 1993–2010, http://www .forestpeoples.org/sites/fpp/files/publication/2011/06/cedaw-compilationfinaleng.pdf. 60 Examples can be brought from a number of 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. overruling murphy’s law on the free choice of identity 137

It needs to be added that group membership also comes up in the context of drafting affirmative action and ethnicity-based social inclu sion policies. These frameworks usually incorporate perception, self- declaration and anonymized data. Also, a special form of opting in to groups concerns mixed partnerships or marriages. For example non-Roma partners or spouses of Roma are usually considered members of the minority community, especially when membership is intertwined with discrimination and marginalization. Furthermore, as mentioned above, in all of these cases privacy concerns are often raised. It is important to reiterate that (i) in the ethno-racial anti-discrimination context, one can argue that when establishing racial motivation and assessing perception, personal sensitive data are not used at all, thus processing these data in criminal or administrative procedures is undoubtedly permitted. (ii) in order to substantially meet international minority rights obligations, laws can require either a declaration or registration for voluntarily making use of collective rights.61 The authorization to collect ethnic data, which, is intrinsically connected to the free choice of identity, is corroborated by various international documents, such as Patrick Simon’s study on the relationship between ethnic statistics and data protection, published by the European Commission against Racism and Intolerance (ECRI).62 The report underlines the vital importance of collecting anonymous ethnic data63 – something that has been emphasized by the ECRI in a 1996 recommendation.64 The study cites the European Commission’s report on the implementation of equal opportunity principles,65 which affirms that the enforcement of non-discrimination unavoidably presupposes the compilation and use, among other categories of information, of statistics of reliable ethnic data. Neither will the EU’s Data Protection Directive be contravened by the collection and processing of data, even sensitive data, if it serves the cause of implementing anti-discrimination measures. Since the racial and

61 As Gábor Kardos points out in this volume, in the Rights of Minorities in Upper Silesia (Minority Schools) the Permanent Court of Justice accepted that a declaration on behalf of a minority pupil on his origin or mother tongue required by law as a precondition to be admitted to a minority language school is not violating equal treatment (Permanent Court of International Justice, Judgment, Rights of Minorities in Upper Silesia (Minority Schools), Ser. A. No. 15, pp. 30–33) Consequently, members of the group should give evidences of their subjective view on their identity, if they would like to enjoy minority protection. 62 “Ethnic” statistics and data protection in the Council of Europe Countries. 63 pp. 3 and 7. 64 General Policy Recommendation No. 1, CRI (96) 43 rev. 65 COM(2006) 643 of 30/10/2006. See also the European Parliament’s report in September of the same year on the transposition of the Racial Directive. 138 andrás l. pap employment directives instated in community law the concept of “indirect discrimination” (exemplified by an apparently neutral measure that nevertheless incommensurately disadvantages a group marked by the protected attribute), the collection of statistical data in this context has become a logical and unavoidable necessity.66 Let us also remember that the Preambles to the racial and employment Directives make express mention of data collection for statistical purposes as a permissible tool of fighting discrimination.67

(d) Hybrid Models for Rigid Classifications There are unique historical and contemporary examples for strict legislative regulation of ethno-racial group-membership. In the cases presented below, group definitions are provided by individual affiliation rules. The common element in these models is that because of the importance of the legal status that is attached to ethno-racial group membership, there is a pressing political need to out rule the permeation of group membership. Usually the rationale behind these strict rules is to limit membership within the nation-constituting majority and not the framing of minority policies. In the following, I will provide two detailed case studies for this model: the historical model for defining whiteness in the United States and defining Jewry in Israel. In the latter case study the definitional questions concern the majority in Israel, but its inclusion can be justified by two reasons: (i) Jews are minorities in many countries, and intricate legal and political debates surround the question whether they are racial, ethnic, religious or even national minorities.68 (ii) Also, as we have seen,

66 Simon ibid. (2007, pp. 68–69). 67 Preamble to Council Directive 2000/43/EC of 29 June 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.” 68 For example in Hungary in Jews were recognised as a national minority eligible for parliamentary representation by Act XVII of 1990, and after the law was repealed and the new minority law was passed, an initiative was launched by representatives of one of the overruling murphy’s law on the free choice of identity 139 states are just as reluctant to provide legal definitions for the titular majority, as often they refrain from providing definitions and affiliation requirements for the minority communities. And lastly, membership criteria for the majority may be essential if free choice of identity was to become an actual, fully-fledged legal right, since it is to this group, where members of minorities presume to have a right to assimilate to, when using their right to opt out from (the no longer) their minority identity. The reason for the lengthy presentation of these cases lies in the fact that they provide vivid demonstrations of how the political and legal conceptualization of ethno-racial and/or national group membership is embedded in the given social and historical context, the situational inter- play between minorities and the majority. The peculiarity of the cases stems from the fact that outside the narrowly defined aboriginal context, such blunt rulings on specific substantive group membership criteria are rarely provided by judicial or legislative authorities. (1) Race and Whiteness in America The peculiarity of the American case lies in the fact that due to it being corollary regarding personal status race, was not only seen as a presup- posed juridical concept, but was rebutted, shaped and defined by extensive litigation. Unlike in the continent therefore, American jurisprudence has a long history of formulating the legal construction of race. The cases arouse of the fact that by a 1790 Act of Congress, citizenship was reserved for “white persons” only. Thus, litigating race-based naturalization refusal, the questioning the authorities’ classifications of the petitioners as ‘not white’ was the first notion towards the juridical grasping of the minority-concept. “From the first prerequisite case in 1878 until racial restrictions were removed in 1952,69 fifty-two racial prerequisite cases70 were reported.”71 Prerequisite-litigation led to a case-to-case development, for example deciding whether applicants from Hawaii, China, Japan, Burma, Mexico,

Jewish communities for recognition as a national or ethnic (they never specified) minority community. The case even reached the Constitutional Court decision No 977/H/2005. AB határozat. 69 Naturalization was limited to African-Americans and “Whites” until 1940. At that time, Nazi Germany was the only other nation that limited naturalization on the basis of race., Carrie Lynn Okizaki: “What are you?:” Hapa-girl and multicultural identity, University of Colorado Law Review, Spring 2000, p. 478. 70 That is cases on naturalization perquisites. 71 See López, Ian F: White by Law, The Legal construction of Race, New York University Press, 1996. 140 andrás l. pap

Armenia, etc. were “white” or not. The need to define race by the instrument of law, thus rooted in the institutionalized practice of race-based discrimination between “legally white” and other persons. In these cases two established conceptual rules of hypodescent to approach racial classification evolved:72 the rule of recognition, that is relying on the visible characteristics of non-white ancestry; and the rule of descent. Judicial practice was nevertheless quite inconsistent. In 1878, in the first prerequisite case73 the (circuit) court held that Chinese could not be white – as according to the ordinary understanding held throughout the country, in accordance with “the well settled meaning in common popular speech.”74 A few decades later, in Ozawa v. US,75 on the other hand, when a light- skinned Japanese claimed for naturalization, the Court held that it is not only the skin-color, but the scientific categorization is also relevant; and found that Japanese are to be classified as members of the “Mongolian” race, thus they cannot be Caucasian. In the same year, however, when Bhagat Singh Thind,76 a “high caste Hindu of full Indian blood”77 applied for citizenship on the grounds that as a “Caucasian”, he was found to qualify as “white person” under federal naturalization laws. Still, the Supreme Court refused to equate “white person” with “Caucasian” as understood by contemporary anthropology. The Court held that “‘common understanding’ would exclude a person, who looked like claimant saying that ‘it may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today’…”78 Prior to 1922, thus “two competing doctrines characterized the racial prerequisite cases: the common knowledge test and the scientific evidence inquiry.…Ozawa and Thind … represented the ultimate triumph of the common-knowledge test in judicial racial determination … as scientific evidence suggested that individuals with brown or even black skin color who were anthropologically Caucasian would count as whites.

72 See Neil Gotanda: A critique of “our constitution is color-blind”, Stanford Law Review, November 1991, vol. 44, No. 1, pp. 1–69. 73 Re Ah Yup, for more see Appendix II. 74 Okizaki, p. 478. 75 Ozawa v. US, 260 US 178 (1922). 76 US v. Thind, 261 US 204 (1922). 77 Gotanda, op. cit., 29. 78 Ibid. overruling murphy’s law on the free choice of identity 141

Such outcome would have undermined and delegitimated the carefully constructed system of racial hierarchy that dictated social relations.”79 The common-knowledge test meant nothing else, but a performative whiteness, determined and evaluated by the judges. When setting criteria for “performative whiteness,” both the degree of cultural assimilation, and value system adaptation (such as practicing Christianity, for example)80 of the applicants, as well as the initial Europeanity of the kin-group was weighed.81 However, neither of these judicially developed conceptual rules of hypodescent proved efficient for the increasing number of mixed-race children, whose number increased over time. As early as 1662, for example a Virginia statute attempted to draw legal boundaries around the concept of race, setting the mother’s race as decisively determining the child’s.82 Later this approach also turned out unsatisfactory, since it was impossible to tell from which (maternal or paternal) line the child received his/her “category.” Following this then, the blood-algebraical methods of calculation reigned, at first with “adopting one-fourth, one-sixteenth, and one- thirty-second formulations as bright lines for establishing race.”83 However, as more and more biracial children were born, and more of them could claim themselves “white”, this led to the formulation of even stricter hypodescent philosophies, and the “one drop rule” (the possession of which will make the person black) was adopted: maintaining the social reality of

79 See John Tehranian, Performing whiteness: Naturalization litigation and the construction of racial identity in America, Yale Law Journal, January, 2000, Vol. 109, No. 4, p. 822. 80 See for example, US v. Cartozian, where Christianity (and the applicants relation to European aristocracy) was considered a sufficient (from Kurds or Arabs distinguishing) performative whiteness criteria. 81 Tehranian argues in the performative approach to defining race, “the potential for immigrants to assimilate within mainstream Anglo-American culture was put on trial. Successful litigants demonstrated evidence of whiteness in their character, religious practices and beliefs, class orientation, language, ability to intermarry, and a host of other traits that had nothing to do with intrinsic racial grouping. Thus, a dramaturgy of whiteness emerged, in response to the interests of society as defined by the class in power – an “evolutionary functionalism”, whereby courts played an instrumental role in limiting naturalization to those new immigrant groups whom judges saw as most fit to carry on the tradition of the “White Republic.” The courts thereby sent a clear message to immigrants: the rights enjoyed by white males could only be obtained through assimilatory behaviour. White privilege became a quid pro quo for white performance.” The underlying idea is clear: whiteness, e.g. formal acceptance in the mainstream Anglo-Saxon culture is not a “naturally determined, exogenous variable in the equation. Instead it is an outcome, a reward dependent on performance and assimilation.”. Ibid. p. 836. 82 See Okizaki, op. cit. 83 Ibid., p. 473. 142 andrás l. pap white superiority through the fiction of two distinct (definable) races.84 Thus the doctrine of seeing race, racial identity as an immutable fact developed.85 It is also worth mentioning that although in 1870 Congress actually gave “persons of African nativity” equal naturalization-rights, due to the discriminative and segregating policies, all but one of the prerequisite cases’ applicants were claiming white racial identity.86 The relevance of these cases in not purely historical. We see several contemporary litigations along similar lines. In 1987 for example, the US Supreme Court actually had to discuss questions whether or not Arabs

84 It is important to note that we see just the opposite in the above described cases concerning strict norms on tribal memebrship (effecting members, mostly women marrying outside the tribe) which may lead to the gradual disappearance of the tribe. 85 Gotunda quotes Justice Cardozo in Morrison v. California (291 US 82 (1933) and Justice Steward’s dissent in Fullilove v. Klutznik (448 US 448 (1980) holding that “The color of a person’s skin and the country of his origin are immutable facts.” Also, alternative systems of purely academic classifications, such as the “mulattos”, the “named fractions,” Also alternative systems of purely academic classifications, such as the “mulattos”, the “named fractions,” (that is, assigning labels according to the fractional composition of ancestry), “majoritarian”, and “social continuum” were also developed, without incorporating however, any legally observable principles or guidelines. Race therefore, remained a more or less consistent practice of classification in a socially determined and determina- tive way. It is interesting to see, that even in the time when a) race was a clear division line in terms of rights and personal status; and b) personal documents contained such data – the legislated legal classification was far from transparent, therefore it was the Court and the administrative practice that needed to evolve the rule of recognition. See Gotanda, op. cit. p. 24. 86 Tehranian even mentions a contemporary survival of the immigration and naturalization performative racial criteria progeny. Although with the McCarran-Walter (Immigration and Nationality) Act of 1952, Congress finally abandoned the race-based system of naturalization in existence since 1790. Thus, after 1952, members of any ethnicity and race could become citizens; “yet the quota system based on national origins, which limited annual immigration from each nationality to two percent of the respective nationality’s share of the United States population in 1890, remained intact. It was not until 1965 that Congress finally did away with the quota system–a system that placed heavy restrictions on immigrants from anywhere in the world besides Western Europe. However, despite these reforms, a performative/white bias continues to exist in the immigration system. First of all, the new system’s per-country allocations continue to limit immigration from historically excluded countries, effectively limiting immigration by individuals of certain nonwhite races. … For example, the final report of the Commission on Immigration Reform in 1997 called for the “Americanization” of new immigrants through a “process of integration by which immigrants become part of our communities and by which our communities and the nation learn from and adapt to their presence.” In particular, the report emphasized the importance of these new immigrant groups to conform to white, Christian, Western European norms, especially in their adoption of English as their primary language. Here, the old quid pro quo present in the racial-prerequisite cases of the early half of the century is repeated: If you can assimilate yourself into the White Republic, you will gain the privileges of whiteness…The rhetoric of isolationists and other advocates of tighter borders has even made this quid pro quo explicit. White performance is still a condition of white privilege.” op.cit, p. 842. overruling murphy’s law on the free choice of identity 143 qualify as whites. In Saint Francis College v. Al-Khazraji,87 an Iraqi-born American professor sued its college for racial discrimination when denying tenure. The college argued that since Arabs are “Caucasians”, between whites hardly any racial discrimination can take place. The Court held that persons of Arabian ancestry can indeed be protected from racial discrimination. A few years later, in Sandhu v. Lockheed Missiles & Space Co.,88 the Lockheed Missiles Space Company almost succeeded in avoiding an anti-discrimination lawsuit by claiming that the plaintiff’s being an Indian male made him technically Caucasian, thus he should not be eligible to sue.89, 90 Another case revealed the ambiguities of the legal status of race in an issue regarding the Jewry.91 The case rose out of the desecration of the congregation’s synagogue, and raised the question of whether Jews constituted a racial group. The two courts below the Supreme Court held that lacking a distinct race or ethnic group, no racial prejudice may be established. The Supreme Court reversed. On the other hand, in United Jewish Organizations v. Carey,92 in the context of gerrymandering, the Court held

87 481 U.S. 604 (1987). 88 26 Cal. App. 4th 846, 850 (Cal. Ct. App. 1994). The issue before the court was whether Dale Sandhu, an “East Indian” from Punjab, India could sue under the Fair Employment and Housing Act for race-based employment discrimination. Lockheed argued that Sandhu was Caucasian and therefore could not bring suit on a race theory. The Court rejected such a narrow definition of race and held that a cognizable claim for race discrimination may be brought on the basis of Sandhu’s allegations. The Court concluded that Sandhu’s allegation that he was subject to a discriminatory animus based on his membership in a group which is perceived as distinct when measured against other Lockheed employees, and which is not based on his birthplace alone, was sufficient to make out a cognizable claim for racial discrimination. 89 Note that Indians were considered non-whites, and as a consequence of that denied naturalization (reserved for whites only) in earlier decisions. 90 Defendants in Ortiz v. Bank of America ((E.D.Cal. 1982) 547 F.Supp. 550.) argued similarly, claiming that ‘whites’ may not claim discrimination by other “whites,” in the case, where a woman of Puerto Rican descent alleged that she was denied promotions and ter- minated from her employment because of her “national origin and accent.” The rationale was echoed in Baruah v. Young (D.Md. 1982, 536 F.Supp. 356), decided in the same year. There the plaintiff, a native of India and a nontenured associate professor at the University of Maryland, alleged employment discrimination based on national origin and race (as well as age) after the school hired a “white American national” for his position,. The court held that being “non-white and a native of India, may entitle him to recover upon proof of discrimination on either [race or national origin].” 91 Shaare Tefila Congregation v. Cobb, 481 US 615 (1987). 92 430 U.S. 144 (1977). 144 andrás l. pap that Hasidic Jews enjoy no constitutional right to separate community recognition for the purposes of redistricting.93 The lesson learnt here is intriguing: strict classifications that may be inclusive in one historic moment may provide precedent for exclusionary measures in another context. (2) Jews in Israel Israel’s curiously hybrid legal system melding together secular and (fundamentalist) religious constitutional elements into an ethnic democracy is one of the only modern states which define its national constituencies, and the majority nation on rigid, ethnic grounds. Turning the state of Israel into the home of Jews by virtue of their Jewishness, and bearing in mind its Jewish demographic edge, Israel is one of the unique exceptions among countries that absorb immigrants in the sense that its endorsement only applies to a specific ethnic group.94 As a matter of fact, reflecting on the horrors of the Nazi regime, the Jewish state defines its constituency more or less in accordance with the broader definition of the Nuremberg Laws “using affirmative action (or corrective discrimination) on behalf of the world Jewry after the Holocaust. … intended to grant citizenship to almost everyone who suffered persecution as a Jew…”95 According to the law on the establishment of the State, its founders proclaimed “…the renewal of the Jewish State in the Land of Israel, which would open wide the gates of the homeland to every Jew…”. The Law of Return (1950)96 grants every Jew, wherever he may be, the right to come to

93 To attain a nonwhite majority of 65% in a voting district in which also a Hasidic Jewish community was located, through a race-based redistricting plan the Jewish community was divided and split between two senatorial districts. Petitioners, on behalf of the Hasidic community alleged that the plan violated their rights for equal treatment. The Court of Appeals classified petitioners as white voters, and held that no claim of the plan canceling out the voting strength of whites as a racial group can be sustained. 94 Yfaat Weiss: The Golem and its creator, or how the Jewish nation-state became mul- tiethnic. In. Daniel Levy and Yfaat Weiss: Challenging ethnic citizenship. German and Israeli Perspectives on Immigration, Berghahn, New York, 2002. p. 85. 95 Baruch Kimmerling: Nationalism, identity, and citizenship. An epilogue to the Yehoshua-Shammas debate. In. Daniel Levy and Yfaat Weiss: Challenging ethnic citizenship. German and Israeli Perspectives on Immigration, Berghahn, New York, 2002. p. 190. 96 Law of Return, 5710–1950, Passed by the Knesset July 5th, 1950. See: http://www.ilrg .com/nations/il/; From the ‘Lectric Law Library’s stacks Israel’s Law Of Return Giving Every Jew The Right To Automatically Acquire Citizenship. overruling murphy’s law on the free choice of identity 145

Israel as an oleh (a Jew immigrating to Israel) and become an Israeli citizen.97 In Israel, official documents,98 such as identity cards also contain the holder’s affiliation with one of the “ethnic communities” (Jewish, Moslem, Christian or Druze.)99 Alongside the rights and obligations incumbent on all citizens, the members of the different communities (there is no separation of state and religion in these regards) are subject to those applying to their specific groups (for marriage and divorce, for instance, they appear before their own courts).100 Under the Law of Return’s preferential naturalization conditions, thus only Jews are favoured, since Israeli nationality is automatically accorded to them on request and if the authorities recognize their Jewish status.101 The Israeli public discourse is very aware of how crucial this issue is, especially since

97 “1. Every Jew has the right to come to this country as an oleh. 2. (a) aliyah shall be by oleh’s visa. (Aliyah means immigration of Jews, and oleh, plural: olim, means a Jew immigrating, into Israel.) (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712–1952, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion. (Amendment No. 2), 5730–1970, Passed by the Knesset March 10th, 1970) 4B. For the purposes of this Law, “Jew” means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion. 3A. (a) A person shall not be registered as a Jew by ethnic affiliation or religion if a notification under this Law or another entry in the Registry or a public document indicates that he is not a Jew, so long as the said notification, entry or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a competent court or tribunal has not otherwise determined.” See www.jajz-ed.org.il. Of course, even in Israel “ethnic Jewry” is not the only way of acquiring naturalization and membership in the Israeli nation, since (regardless of race, religion, creed, sex or political belief) citizenship may be acquired by: a) birth; b) naturalization; c) residence; and d) the Law of Return. See: http://www.lectlaw.com 98 The Registration of Population Ordinance of 1949 provides for establishing a National Register for inhabitants who shall be registered according to: “nationality, ethnic group community and religion”, Ibid. 99 The population registry law, 5725–1965 holds: “3A. (a) A person shall not be registered as a Jew by ethnic affiliation or religion if a notification under this Law or another entry in the Registry or a public document indicates that he is not a Jew, so long as the said notification, entry or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a competent court or tribunal has not otherwise determined.” The outcome is that should the applicant fail to demonstrate credibly her Jewishness, she will be registered after the passport she holds. 100 See for example the Rabbinical Court’s Jurisdiction (Marriage and Divorce) Law 1953 Enactment: “Matters of marriage and divorce of Jews in Israel, being nationals or residents of Israel, shall be under the exclusive jurisdiction of the Rabbinical Courts and marriages and divorces of Jews shall be performed in Israel in accordance with Jewish Law (Halakha).”, Ibid. 101 Also, they receive special assistance helping to settle in Israel. 146 andrás l. pap another important question lies behind it: the relationship between secular and religious state powers and functions. The issue was a source of severe political controversies102 as well as highly debated Supreme Court cases. The applicant of the first remarkable Supreme Court case on the issue was Oswald Rufeisen, a Polish Jew, who converted to Christianity during World War II, and became a monk named Brother Daniel.103 Born in Poland in 1922 to Jewish parents and educated in Jewish values, in his ado- lescent years Rufeisen was an active member of a Zionist youth organization and with the outbreak of the war was even imprisoned by the Gestapo. Having managed to escape and procuring certificates testifying him being a German Christian, he became the secretary and translator at the German police and helped informing inhabitants before ghetto deportations. In advance to converting to Christian faith and joining the Carmelite order, Rufeisen also fought as a partisan, and was therefore decorated by the Russians. After having moved to a Carmelite monastery in Israel, he waived his Polish citizenship. His application for an immigrant’s certificate and registration as a Jew in his identity card was however rejected by the Minister of the Interior on the basis of the Government Ordinance of 20/7/58, which set forth that only a person who declares in good faith that he is Jewish and does not belong to another faith may be registered as Jewish. Subsequently (by a 4:1 verdict) his petition to the Supreme Court in 1962 was also rejected.104 Consulted by the Court, the Chief Rabbi of Israel confirmed that Brother Daniel must be considered Jewish. Nonetheless the Court refused to accord Jewish nationality to any individual who had been born Jewish but who had voluntarily converted to another religion. This decision was based not on any legal criterion but (see for the performative aspect of Jewishness) on public opinion, subsequently to

102 For example, in 1958 the National Religious Party resigned from the government when it was not willing to support is demands not to accept declarations regarding ethnicity by new immigrants automatically but rather to check their statements. From 1972 onwards, the Agudat Israel Party and Orthodox rabbis (in Israel and the Diaspora) have been insisting that the term “in accordance with Halacha” be added after the word “conversion” in the Law of Return. With society being deeply split between fundamentalists and seculars as it is, the amendment had numerously been promised to be implemented (first in 1977 by Prime Minister Menachem Begin), yet it never was actually introduced. 103 His life was the basis of Lyudmila Ulitskaya’s 2006 novel, Daniel Stein, Interpreter. 104 Holding that “The space reserved for ethnic group under section 4(1) of the Population Registration Ordinance 1949/5709 shall remain empty. Nor is there any anomaly in this since not all applicants for an Identity card are able to complete this section, for example, someone who has no religion.” For more, see www.jajz-ed.org.il/50/act/shvut/10.html. overruling murphy’s law on the free choice of identity 147 become law by the 1970 amendment to the Law of Return. In the words of Judge Berensohn: “An apostate Jew cannot be considered Jewish in the sense understood by the Knesset in the Law of Return and in the popular acceptation of today.”105 In Judge Berensohn’s view, no matter how proud the applicant is of his Jewish affiliations, an apostate has dissociated himself from the religion, the people and the community of Israel. The same person cannot be both Jewish and Christian. There was another significant Supreme Court (as High Court of Justice) case106 on the issue.107 The petitioner, Binyamin Shalit, a Jew born in Haifa, married a non-Jewish Scots woman in Edinburgh. He brought his wife back to Haifa, where two children were born to them – a son in 1964 and a daughter in 1967. When the petitioner, who at the time of the proceedings was an officer serving in the Israel Navy, came to register his children in accordance with the demands of the Registration of Inhabitants Ordinance and the Population Registry Law (both of which require that the particulars with regard to religion and ethnic affiliation be given), he declared that his children were without religion but Jewish by ethnic affiliation. The registration officer, however, wrote “no registration” against the latter item, in accordance with directives issued by the Minister of Interior to all registration officers in 1960. The judgment was delivered by Justice Cohn, who pointed out that “a registration officer may not correct an entry, or fill in an omission, in the register in respect to ethnic affiliation, religion of personal status, save with the consent of the person to whom the entry relates.” For this reason the administrative decision is overruled. Justice Silberg explained the difference between the present case and the Rufeisen case, which dealt with the extreme example of a Jew who had converted to Christianity but still wished to be regarded as Jewish for purposes of the Law of the Return. The Law uses the ‘ordinary man’s concept of a “Jew”’ – which could certainly not be equated with a convert to Catholic monasticism—thus this approach will be preferred over the Halachic rule of “once a Jew always a Jew.” In the present case, however, there was no question of interpreting the term “Jew” according to any

105 Ibid. 106 Binyamin Shalit, Petitioner, v. 1. Minister of Interior, 2. Haifa Registration Officer, Respondents (H.C. 58/58). Judgment given on January 23, 1970. 107 Law of Return: Backgrounder High Court ruling in ‘Who is a Jew?’ case; The opinions of the nine Justices of the Supreme Court are summarized here by The Jerusalem Post Law Editor Doris Lankin, see: http://www.jajz-ed.org.il/50/act/shvut/20.html, citation-marks omitted. 148 andrás l. pap secular law, since the Population Registry Law does not contain the word “Jew” at all. But it does talk of “ethnic group” and thus raises the question of whether a person can be said to be Jewish from an ethnic viewpoint even though his mother is not Jewish. If, in answering this question, no general, effective definition for “Jewish” can be found anywhere else except in the Halacha, the Jewish law, then there would be no alternative but to adopt the halachic test, even though the Registration Law is a secular one. The consequences of adopting the petitioner’s definition of “Jewishness,” continued Justice Silberg, would be clear and catastrophic. For anyone who argues that a person can be Jewish ethnically without being Jewish by religion must inevitably be forced to the conclusion that Christians and Moslems, if they feel a close affinity with Israeli-Jewish culture and values, can also demand to be registered as ethnically Jewish. “The effect of this on the Jews of the Diaspora would be equally traumatic. If the High Court of Justice in Israel were to rule that a Christian or Moslem could still belong to the Jewish community, this would weaken the defenses against assimilation set up by the Jewish communities abroad and destroy their communal structure.”108 Another front in this battlefield is the question of conversion- recognition.109 Shoshana Miller converted to Judaism in the United States within the framework of the Jewish Reform Movement. She had taken a conversion course under the supervision of a rabbi, in which she studied Jewish religious commandments, the philosophy and history of the Jewish People, as well as the Hebrew language, and she also underwent

108 Ibid. As a conclusion, Justice Silberg responded to the petitioner’s question as to how it was possible that the son of a Jewish mother who joins the Fatah and aspires to destroy Israel, should be deemed to be ethnically, Jewish, while the son of a non-Jewish mother, who sheds his blood for Israel and is prepared to sacrifice his life for his country, should be considered a stranger and a gentile. He said that the Fatah son of the Jewish mother is a bad and wicked Jew, of whom there are many in the circles of the Jewish New Left, whereas the petitioner’s children are good, charming non-Jews who because of their parents’ obstinate aversion to religion have been denied an entrance to the Jewish nation. “Jewishness,” he continued, is not a prize, like an honorary doctorate, to be conferred on someone for his efforts on behalf of the Jewish people. On the contrary, “Jewishness” is a religious, legal description bestowed only under certain specific conditions, which the petitioner’s children unfortunately have not met. If the petitioners had not been so fanati- cally atheistic, he continued, they could have arranged for their children to be converted. 109 In practice, certain population categories are specifically affected by these contradictions: namely, immigrants who are recognized as Jewish by the Registry Office and not by the Halacha – in particular, immigrants who have a Jewish father but a non-Jewish mother, and immigrants who have converted to Judaism, particularly outside Israel, by synagogues not recognized by the Chief Rabbinate of Israel (Reform and Conservative Synagogues, for instance). All these are eligible for citizenship as Jews under the Law of Return but cannot contract a religious marriage in Israel. overruling murphy’s law on the free choice of identity 149 immersion in a ritual bath. At the conclusion of the whole process, she received a conversion certificate, upon which when arriving to Israel in October, 1985 and was given a certificate under the Law of Return of 1950 as an olah. She then went to the Ministry of Interior to receive her identity card; introduced herself as Jewish, presented her conversion certificate, but to her surprise was refused registration.110 She was referred to the Rabbinical Court to receive confirmation of her conversion and was in passing informed that she might either be registered as a Christian, or that the registration of her religion will remain blank. She was later also informed that the respondents were prepared to register her, as “Jewish (Converted)” – referring to both the national group and religion. The High Court of Justice held that neither the minister of interior nor any registration officer had the power to make additions to the particulars specified in the Population Registry Law.111

110 Asher Felix Landau, The Shoshana Miller Case – Unity of the Jewish People is paramount, The Jerusalem Post Law Report, See www.jajz-org.il/50/act/shvut/21html. 111 Several similar cases followed the Miller-suit. In a 1995 decision the Israeli High Court of Justice gave de facto recognition to Reform and Conservative conversions performed in Israel for the purposes of civil issues (i.e. registration), restricting thereby religious community (orthodox rabbinate) jurisdiction to personal status issues. (Such as marriage or divorce.) Civil issues, held the Court, are in the exclusive competence of the secular parliament, the Knesset. See High Court of Justice rules on Registration of Converts, November 15, 1995, www.jajz-org.il/50/act/shvut/21html. Another controversial area is that of the Ethiopian Jewry, which has won its fight to be recognized as Jews for aliyah purposes. But the “Falas Mura”, Ehiopian Jewish converts to Christianity, have not. The Ethiopian community in Israel remains divided as to whether they should be admitted. In January 1996, the Knesset Absorption Committee recommended that the Government encourage relevant organizations to bring them back to Judaism and then allow them to immigrate. The problem is that some of them reject the assertion that they are Christians and are offended by demands that they convert. Another, more difficult obstacle, is that the Ethiopian government does consider them Christians and deported several persons in 1993 for teaching the Falas Mura about Judaism. See Falas Mura: Still Waiting, Israel Yearbook and Almanac, 1994, See www.jajz-org.il/50/act/shvut/23html. bid. The conversion cases are still fiercely debated. See for example, Ethan Bronner: Israel Puts Off Crisis Over Conversion Law, The New York Times, July 23, 2010. As a recent development, in October 2011, Judge Gideon Ginat of the Tel Aviv District Court ruled that award-winner Israeli author Yoram Kaniuk could register his official religious status as “without religion.” The 81 years old plaintiff, a veteran of the 1948 War of Independence asked the court to order the Interior Ministry to allow him “to be liberated from the Jewish religion” by changing his “religion” entry in the Population Registry from “Jewish” to “without religion.” The ministry had refused his earlier request. In his petition, Kaniuk explained that he had no wish to be part of a “Jewish Iran” or to belong to “what is today called the religion of Israel.” He sought to equate his standing to that of his grandson, born in 2010, who was registered as “without religion” at the Population Registry. Originally classified as a Christian American, the infant was born in Israel but was defined by the Interior Ministry as an American Christian because her own mother was born in the United States and is a Christian. After some discussion, Population Registry officials agreed to change the baby’s 150 andrás l. pap

(iv) Conclusion: Recognising Minorities As a conclusion to the above, instead of a semantic analysis of the types of minorities, following Kymlicka’s approach,112 I offer to use a content-based distinction of the various minority protection mechanisms. The reason for this lies in the fact that even though the antidiscrimination vs. preferential treatment binary seems helpful at first sight, and it can be quite useful in political debates, it is just as simplifying as the empty national-ethnic- racial distinction. The achievement of equality may also require preferential treatment or positive action, depending on whether we endorse a formal or a material equality-concept. The very idea of minority rights includes adjusting society’s perception of equality by including certain groups as eligible claimants for equal treatment. Even if in theory the existence of a minority should not depend on the State’s decision, in practice this process of broadening of the agents of ethno-cultural justice and equality will always include a political decision and a value judgement. Thus, the process of recognizing minorities as minorities, as groups worthy of sui generis recognition (that other groups do not have) is highly politicized. status. When Kaniuk requested the same change be made to his own religious status, officials said he needed to obtain court approval for the amendment. After the ruling, he said that “This is a ruling of historic proportions … The court granted legitimacy to every person to live by their conscience in this land, in ruling that human dignity and freedom means a person can determine their own identity and definition. In this way I can be without religion but Jewish by nationality.” See http://www.haaretz.com/print-edition/news/ israel-court-grants-author-s-request-to-register-without-religion-1.387571. 112 “According to Kymlicka, justice for national minorities requires self-government rights of the national minority to govern their own affairs within their own territory, alongside and distinct from the larger society… Polyethnic rights, on the other hand give special recognition to cultural minorities in order to compensate for the disadvantages they would otherwise have in political participation and economic opportunity in the larger society. The objective of polyethnic rights is thus to promote the integration of ethnic minorities into the larger society, whereas self-government rights of national minorities have a sepa- ratist tendency. …. The distinction between national minority and ethnic minority turns out to be a distinction between a (n immigrant – added by ALP) cultural group that wishes to and has the right to be a separate and distinct society, on the one hand, and a cultural minority that wishes to or is expected to integrate into a larger nation.” Iris Marion Young: A multicultural continuum: A critique of Will Kymlicka’s ethnic-nation dichotomy, Constellations Volume 4. no 1. Blackwell, Oxford, 1997, p. 49–51. “This sort of linguistic and institutional integration does not require complete cultural assimilation, and immigrants in many Western democracies are allowed and indeed encouraged to maintain some of their ethnocultural practices and identities. And they are increasingly given various rights and exemptions – what I called “polyethnic” rights, but which might better be called “accommodation rights.” – to enable the maintenance of these practices even as they integrate into common institutions.” Will Kymlicka: Do we need a liberal theory of minority rights? Reply to Carens, Young, Parekh and Frost, p. 73. overruling murphy’s law on the free choice of identity 151

The political element in the success of certain groups’ recognition as minorities can best be demonstrated with the dynamic interpretation of the scope of the Framework Convention for the Protection of National Minorities. For example, at the time of ratification, the German minority in South Jutland were identified as the only recognized national minority subject to the Framework Convention in Denmark. In 2000, the Advisory Committee urged the Danish government to reconsider the scope of application of the Framework Convention, in order to maybe include Far-Oese, Greenlanders and the Roma. The process of politicization is vividly demonstrated by the American jurisprudence. For example, in 1974, in Morton v. Mancari,113 the US Supreme Court held that hiring preferences within the Bureau of Indian Affairs did not constitute racial discrimination, since the purpose of the preference was not racially motivated but by the desire to give “Indians a greater participation in their own self-government; to further the Government’s trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.” The goal of the hiring preference was to make the Bureau more responsive to the interests of the people it was serving, American Indians. This, the court said, showed a clear recognition that Indians had a unique legal status, thus giving this hiring preference more justification. The Court said, “The preference, as applied, is granted to Indians not as a discrete racial group, but rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.” On the same token, in 2000, in Rice v. Cayetano,114 overruling two lower court judgments, the Supreme Court held that the state could not restrict eligibility to vote in elections for the Board of Trustees of the Office of Hawaiian Affairs to persons of Native Hawaiian descent, since Hawaiians enjoy no tribal status.115

113 417 U.S. 535 (1974). 114 528 U.S. 495 (2000). 115 For example, the 1993 Hungarian Minority Act defines national and ethnic minorities as groups which have been present in the territory of Hungary for over 100 years and “(§ 1.) constitute a numerical minority within the population of the country, whose members hold Hungarian citizenship and differ from the rest of the population in terms of their own tongue, cultures and traditions, and who prove to be aware of the cohesion, national or ethnic, which is to aim at preserving all these and at articulating and safeguarding the interests of their respective historically developed communities.” According to the Act, these minorities are: Bulgarian, Roma (Gypsy), Greek, Croat, Polish, German, Armenian, Romanian, Ruthenian, Serb, Slovak, Slovene, and Ukrainian; and in order to register a new minority group, a popular initiative signed by 1000 citizens has to be submitted to the Speaker of the Parliament. Without going into an in-depth analysis of the Hungarian 152 andrás l. pap

It can thus be seen that the reception of groups’ claims for protection, recognition and institutionalizing these through the inclusion in the privileged club of minorities will depend on how compatible these claims are with the majority culture, how long is the group’s common history with the majority, whether there are historical or contemporary political sensi- tivities involved, etc. Due to several centuries of peaceful coexistence and the generally “non-harmful” nature of the Amish’s religion, their claim to depart from generally applicable rules on public schooling, the US Supreme Court allowed for exceptions based on the freedom of religion.116 Bans on visible and politically loaded expressions of Islamic religion such as headscarf on the other hand have been on the other hand repeatedly upheld by various judicial organs including the European Court of Human Rights.117 In Central-Eastern Europe headscarves worn by Roma women trigger no public response, but in the UK, in similar cases involving tur- bans worn by Sikhs, legislative and judicial tolerance includes exemptions from wearing a helmet even while riding a motorbike or working on a construction site (with the additional rule that liability for injuries is restricted to those that would have been sustained if the he had been wearing a safety helmet.) It is safe to presume that the fact that in the UK Sikhs are a “harmless” group, with no apparent or manifest social, cultural or political conflicts with the majority society. Also, on the other hand, less visible and politically sensitive Islamic religious claims pertaining to slaughtering (and requiring exemptions from generally applicable norms on food processing) are usually accommodated. Within these debates whether statutory model, two controversies—procedural as well as material—need to be pointed out. Both material requirements (100-year presence and 1000 signatures as a special popular initiative) for qualifying as an ethnic or national minority seem problematic. The Act, besides defining the two group constituting requirements, also contains an enumeration of the thirteen minority groups that are recognized by the Act, which means that the Parliament will actually need to pass a formal amendment to these provisions if a new group would qualify. This framework raises a number of questions. For example, the House (being sovereign), is not obliged to vote affirmatively on expanding the number of recognized minorities, even if they met the above criteria. Several Parliamentary and Constitutional Court decisions have been passed on petitions of various ethno-national groups, like the Jews, Aegean Macedonians, Russians, the Bunyevac, or the Huns seeking recognition. Another set of issues concern the question of who is to verify or question whether the 100-year requirement has been fulfilled, and when is the clock supposed to start ticking. When will the Chinese minority (a considerable population since the political transition) be entitled to seek recognition? What about the Palestinians, who may claim some 600 hundred years of presence if “Ismaelite” merchants are considered? 116 Wisconsin v. Yoder, 406 U.S. 205 (1972). 117 See for example Leyla Şahin v. Turkey (Application no. 44774/98) or Dahlab v. Switzerland (Appl. Nr. 42393/98.) overruling murphy’s law on the free choice of identity 153 the Sikhs in the UK, or German citizens with Turkish decent or Maghreb immigrants in France are racial, national or ethnic minorities is irrelevant. The question is what legal instruments can be called for in advocacy and along which lines are policies drafted. Thus, a useful inquiry is not semantic, but one focusing on the morphology of claims and the socio- legal climate. For example based on the claims they make, Kymlicka distinguishes between several ethno-cultural groups in the West:118 (i) national minorities, complete and functioning societies in historic national homelands which are either substate nations or indigenous peoples; (ii) immigrants, who do not want to engage in competing nation- building strategies, but want to negotiate the terms of integration (food, customs, holidays); (iii) voluntarily isolationist ethno-religious groups, which are unconcerned about marginalization, and seek exemption from certain laws; (v) and racial caste groups and Metics.119 Consequently minority rights claims may vary from immigrant multiculturalism, through multination federalism, Metic inclusion, or religion-based exemptions from general laws. Following this line of thought, I argued for a more complex set of criteria for distinguishing between minority groups, taking into consideration at least (i) the origin of the group; (ii) the basis for group-formation; and (iii) the aspirations, needs, and demands of the group towards the majority. Let us not forget, minority rights may be (a) dignity-based identity- claims; (b) equality-based (synchronic or diachronic) justice claims, or even (c) reciprocate disaspora claims. Protective measures for racial, ethnic or national minorities, i.e. minority rights in the broad sense can therefore be targeting a number of different things, such as:120 socio-economic equality, de facto freedom of religion, the protection of potential pogrom victims and the prevention of brutal ethnic conflicts, decreasing cultural conflicts between majority and genuine minority or immigrant groups, combating racial segregation or apartheid, or race-based affirmative measures of compensatory,

118 Kymlicka, Will: Western Political Theory and Ethnic Relations in Eastern Europe. In: Will Kymlicka and Magda Opalski (eds.), Can Liberal Pluralism be Exported?, Oxford University Press, 2001. pp. 13–107. 119 He admits though that some gropus like the Roma in Europe or African Americans are peculiar and atypical. 120 For more, see for example András Bragyova: Are There Any Minority Rights? Archiv für Rechts- und Sozialphilosophie, 80/1994. or András Sajó: Protecting Nation States and National Minorities: A Modest Case for Nationalism in Eastern Europe. Roundtable (Chicago) Special Issue, 1993. 154 andrás l. pap remedial or transitional or justice. In line with this, minority law, the law of balancing obligations and freedoms pertaining to assimilation and dis- similation may therefore take several forms: from affirmative action and social protection measures through declarations of religious and political freedom to setting forth cultural or political autonomy, or controlling political extremists. The context-dependent meaning of minority-protection may refer to a widely diverse set of policies, such as equal protection (non- discrimination); participatory identity politics (the political participation of identity-based groups in political decision-making); cultural identity politics (the recognition of identity-based groups in cultural decision- making by the state); the protection of historically rooted identity-based sensitivity (the criminalization of hate-speech, holocaust-denial, etc.); affirmative action; special constitutional constructions form-fitted for the needs of indigenous populations; policies recognizing claims which mirror the state’s ethnic kin’s Diaspora claims abroad; right to traditional, pre- colonization life; or simply measures designed to maintain international security. I have argued that the socio-political climate and realities will play a pivotal role in which minorities are recognized and policies are framed. It is a prevailing fact that there are always going to be political arguments that emphasize the social and political costs of policies. No wonder that in some societies aboriginal people’s claims for land rights and traditional life (mostly in areas where majority industrial societies have no interest in), or indigenous national minorities’ claims for cultural or territorial autonomy may have a more positive reception than relatively newly arrived ethno-religious immigrant group’s demands that may seem oddly egregious or abusive. I have also argued that when following a legal approach and using a legal language talking about defining membership in minority communities or establishing definitions for groups, it is the legal (and political) consequence of these definitions that matters. Thus, when it comes to tax-payer funded preferential treatment, the goals (why the given community is chosen to be targeted) and means (what procedures are adequate to reach these goals) need to be scrutinized. If on the other hand, for example, the aim is to set up a well-functioning anti-discrimination framework, the free choice of identity and its data protection guarantees are simply irreconcilable with this goal. No wonder that Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, for example, uses the national, ethnic, racial concepts overruling murphy’s law on the free choice of identity 155 as one.121 This is why “working definitions for minorities” may build on “cultural closeness” in naturalization legislation, or the perception of the perpetrator in hate crime policies, etc. I have also made that argument that the free choice of identity is a theoretically deeply problematic concept, if seen as a legal right, because the limits of its exercise are inherently difficult to curb. Again, Article 3 of the FCNM avoids using the term entirely. What it, at best, should mean is that everyone is free to choose between the identities that are objectively available for her: meaning that she may be eligible for a particular treatment when interacting with the state (private matters should not concern the state, unless one applies for preferential treatment.) In sum, we need to bear in mind Kymlicka (2007) calling the coherence between the target groups and the content of the policies a necessity. Also, if we want to establish morally binding and theoretically solid arguments for accommodating vastly differing claims by minority groups, and argue for universal human rights standards, we need to compartmentalize these scenarios. Otherwise we will be lost in the cacophony of claims.

121 “In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” International Convention on the Elimination of All Forms of Racial Discrimination Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX)of 21 December 1965.

PART TWO

LINGUISTIC MINORITIES, SOCIO-ECONOMIC PARTICIPATION AND IDENTITY

MLE AS AN ECONOMIC EQUALISER IN INDIA AND NEPAL: MOTHER TONGUE BASED MULTILINGUAL EDUCATION FIGHTS POVERTY THROUGH CAPABILITY DEVELOPMENT AND IDENTITY SUPPORT1

Ajit Mohanty and Tove Skutnabb-Kangas

1. Poverty as Capability Deprivation

Eminent welfare economist and Nobel laureate Amartya Sen conceptual- izes poverty as ‘capability deprivation’ and ‘unfreedom’ (1985; Dreze & Sen 2002). Capability, in his view (Dreze & Sen 2002), “refers to the ultimate combinations of functionings from which a person can choose” (35) and freedom is “the range of options a person has in deciding what kind of life to lead” (35–36). Thus, curtailment of capabilities and lack of real social opportunity, rather than the conventional indicators such as low income or impoverishment of life conditions, are relevant for understanding the nature and causes of poverty. Sen explores the cyclic nature of the relationship between social discrimination, lack of opportunities, lack of freedom, capability deprivation and poverty, stressing that “the crucial role of social opportunities is to expand the realm of human agency and freedom, both as an end in itself and as a means of further expansion of freedom” (Dreze & Sen 2002, p. 6). The emphasis on ‘capability’ has been seen as a powerful interdisciplinary approach to deal with the questions of poverty and the well-being of marginalized communities (Robeyns 2006). Robeyns (2006) suggests that, in dealing with the problems of such communities, it is necessary to identify both capability inputs, and obstacles to the realization of capabilities. Formal education, which plays a crucial enabling role in Sen’s view of economic development, can be seen as a major capability input. Illiteracy is ‘unfreedom’ and a major obstacle that imposes severe limitations to economic opportunities. Besides directly enhancing economic opportunities through easier access to jobs and income, school education adds to social and cultural freedom and empowers individuals for adequate

1 This paper draws heavily on some of our earlier papers, especially Mohanty 2008, Skutnabb-Kangas 2010, Skutnabb-Kangas & Dunbar 2010, Skutnabb-Kangas & Mohanty 2009, Nurmela, Awasthi & Skutnabb-Kangas 2010. 160 ajit mohanty & tove skutnabb-kangas participation in the exercise of political rights. Inequality of opportunity is related to distributional aspects of freedom – inequalities in respect of freedom, participation and development. This is particularly crucial for many societies in South Asia, such as India and Nepal, where social divisions, based on such distinctions as caste, class, culture, language, and religion, are pervasive. Dreze and Sen (2002) speak of the substantial problem of ‘voicelessness’ of the disadvantaged groups in India, particularly the scheduled tribes,2 arising out of the large-scale oracy/”illiteracy”3 and

2 The indigenous or the aboriginal communities in India are officially called ‘tribes’ (ādivāsi) and are listed as ‘scheduled tribes’ which are identified on the basis of ‘distinct culture and language’, ‘geographical isolation’, ‘primitive traits’, ‘economic backwardness’, and ‘limited contact with the outgroups’ and also, sometimes, on political considerations. Anthropological Survey of India, in its People of India … project (Singh 2002), has identified 635 tribal communities of which 573 are so far officially notified as Scheduled Tribes. In this paper the term ‘tribe’ (rather than ‘Indigenous peoples’) is used in its formal/official sense. 3 “Everybody should be defined either positively, in terms of what they are and know: ‘literate’ versus ‘orate’, or BOTH should be defined negatively, in terms of what they are NOT and do NOT know: ‘inorate’ versus ‘illiterate’. It is unfair to define one group positively in terms of what they are/know (‘literate’) but define the other group negatively, in terms of what they are NOT/do NOT know (‘illiterate’). This hierarchises people. More accurate definitions might be: ORACY: High levels of spoken language proficiency; to be a competent speaker or storyteller. An orate is an individual who communicates through listening and speaking but not reading and writing; orates often have superb memory strategies in comparison with persons considered literate because orates carry their entire “library” in their heads. Orature is oral literature (Skutnabb-Kangas & McCarty 2008: 11). The paradigms in literacy research also makes this clear: Literacy can be defined as the ability to read and write. Yet this definition masks two different paradigms informing literacy research and practice. Autonomous views characterise literacy as abstract, neutral, and independent from the social context and language users (Ong, 1982). Ideological views characterize literacy as socially and historically situated, fluid, multiple, and power-linked. Educationally, an autono mous view emphasizes discrete language skills, often taught through direct instruction and scripted phonics programs. An ideological view binds reading and writing to oracy, emphasizing the development of different literacies (and multiliteracies) for different purposes through meaningful social interaction and critical examination of authentic texts (Skutnabb-Kangas & McCarty 2008: 3–4). One might ask why we need to define these concepts The concepts we use are almost never neutral. In contested arenas such as bilingual education, words and concepts frame and construct the phenomena under discussion, making some persons and groups visible, others invisible; some the unmarked norm, others marked and negative. Choice of language can minoritise or distort some individuals, groups, phenomena, and relations while majoritising and glorify- ing others. Concepts also can be defined in ways that either hide or expose, and ratio- nalize or question power relations (Skutnabb-Kangas and McCarty 2008: 3). It is clear that the concept ‘literate’ participates in making ITMs and their cultures ‘invisible’, ‘marked’ and ‘negative’; it ‘minoritises’ them, and hides and rationalizes power relations instead of exposing and questioning them” (Nurmela et al. 2010: xx). mle as an economic equaliser in india and nepal 161 lack of education, both of which impede economic development. But the concept of capability deprivation is equally important in all parts of the world; most education of Indigenous, tribal and minority (both national and immigrant/refugee minorities) children (hereafter ITM children) accomplishes, namely violation of their education rights. Formal education4 is seen as the most crucial input necessary for development out of poverty. Lack of (formal) education for the disadvantaged in India, according to Dreze and Sen (2002), is not due to parental indiffer- ence to the opportunities and possibilities that this education opens up. Neither is it due to the purported large-scale participation of children in the labor force (a claim which they show to be unsubstantiated). They attribute large-scale non-attendance and school dropout5 to lack of interest (of parents as well as children) in the kind of schooling offered to them (which they view as inconsequential). It is also due to a host of ‘discouragement effects’ because of alienating curricula, inactive classrooms, indifferent teachers, and social discrimination in the classroom (ibid: 158). Dreze and Sen (2002) do not specify the roots of the discouragement effects. But linguistic and cultural discrimination and disadvantages, arising out of prevalent inequalities due to such discriminatory treatments are central to the vicious circle of illiteracy, educational failure, lack of freedom, capability deprivation and poverty. This article focuses on the relationship between the languages of ITMs, mainly tribal peoples and their poverty, generally, and in particular in India and to some extent Nepal. It shows how multiple layers of discrimination – in Indian constitution and governance, through low instrumental vitality of tribal languages, exclusion and non-accommodation of ITM mother tongues in education, and inequalities in the relationship between power and languages – severely restrict their freedom of choice and access

4 Many people see only formal education as education, and call people without it “uneducated”. Still, every society educates its people; in societies with no formal schools the whole society mostly participates; every adult and many older children are teachers who transmit the knowledge that children need to become mature, responsible adults of their society, with appropriate skills and values. In informal education the teacher/student ratio is much lower than in formal education; there is often instant feedback instead of delayed gratification which can be demotivating; children are often allowed to try out their knowledge and skills; they are praised when they show that they have learned new things; they can feel that their knowledge is useful for the community. Of course there are limitations too, but in general there is no reason to hierarchies formal and informal education the way it is done today by those with access to formal education. 5 The term ‘push-out’ (Mohanty 2000, Skutnabb-Kangas 2000) is more appropriate as it captures the essence of the phenomenon; children are pushed out by inappropriate organisation of schools, here mainly because of the wrong medium of education. 162 ajit mohanty & tove skutnabb-kangas to resources. This in turn leads to “illiteracy” or low levels of literacy, educational failure and capability deprivation. While formal education is the enabling factor for economic development, language is the enabling factor for access to quality education, and often to any school education.

2. The Wrong Medium of Education Implies a Violation of the Right to Education

Summarising the Introduction, then, “poverty is no longer to be viewed simply in terms of generating economic growth; expansion of human capabilities can be viewed as a more basic objective of development” (Misra & Mohanty 2000a: 263). Since the loci of poverty, and of intervention, are in Sen’s view, economic, social and psychological, and measures have to be taken in each of these areas, the central question in reducing poverty can be formulated as follows: “What is the most critical (and cost- effective) input to change the conditions of poverty, or rather, to expand human capabilities?” (Misra & Mohanty 2000a: 265). There is “a general consensus among the economists, psychologists and other social scientists that education is perhaps the most crucial input” (ibid.). Thus if poverty is understood as “both a set of contextual conditions as well as certain processes which together give rise to typical performance of the poor and the disadvantaged” in school, and if of “all different aspects of such performance, cognitive and intellectual functions have been held in high priority as these happen to be closely associated with upward socio-economic mobility of the poor” (Misra & Mohanty 2000b: 135–136), then we have to look for the type of division of labour between both/ all languages in education that guarantees the best possible development of these “cognitive and intellectual functions” which enhance children’s “human capabilities” (Skutnabb-Kangas & Dunbar 2010: 68–69). Much of today’s Indigenous and minority education not only violates the right to education and prevents the maintenance and development of the world’s languages but may also participate in crimes against humanity and even linguistic genocide, as these are defined in various United Nations and international law documents. The main educational reason for all this, including the world’s “illiteracy”, is the choice of the wrong medium of education. Dominant-language-only education is “widely attested as the least effective educationally for minority language students” (May & Hill, 2003: 14). It is organized against solid research evidence about how best to reach high levels of bilingualism or multilingualism and mle as an economic equaliser in india and nepal 163 how to enable the ITM children to achieve academically in school. In many countries, such as in Nepal and India, a large proportion of ITM children joining school are pushed out during the early years of primary education. Submersion education through the medium of dominant languages is subtractive; it happens at the cost of ITM children learning the mother tongues, rather than additively, learning a dominant language and other languages in addition to the mother tongue(s). Submersion education of ITM children today is not enhancing but rather curtailing the necessary cognitive and intellectual functions (e.g. Skutnabb- Kangas 1984, 2000, Skutnabb-Kangas & Mohanty 2009, Skutnabb-Kangas & Dunbar 2010). Thus it deprives children of the choices and freedom that are associated with the necessary capabilities. Today’s ITM education represents capability deprivation,6 including identity deprivation. And imagining that those organising submersion education do not know it is naïve. Blaming parents or blaming teachers and demanding more high-stakes testing (as in connection with the USA’s No Child Left Behind) solves no problems, as long as the economic, social and political problems of unequal distribution of power and resources are not tackled. Former director of research in the International Monetary Fund, Raghuram G. Rajan, having stated that the percentage of USA youth now finishing secondary education is lower today than in 1970, includes in his latest book Fault Line (2010), in his suggestions for more and better education, also better food for poor children. As Wilkinson and Pickett (2010) show in their book on why more inequality is bad for everyone, including the rich, USA and Britain belong to the absolutely most inequal ones of the rich countries – and their educational achievement is consistently among the lowest ones (see, e.g. their Figures 2.6, p. 23, and 8.1, page 106). Knowing that low levels of teacher training in countries like India and Nepal is often blamed for children’s low achievement, it is sobering to relativise it. Of course, high quality teacher training is “a good thing” for children’s educational results, but, as Stephen Krashen states for the USA, The heavy focus on measuring teacher quality can give the false impression that teacher quality is everything. Study after study, however, has shown that poverty is a stronger factor than teacher quality in predicting achievement.

6 Capability deprivation dovetails neatly with Phillipson’s (2010: 214) interpretation, following Harvey, of continental Europeans who replace their national language by English in their research publication or teaching as not experiencing ‘domain loss’, the conventional liberal term, but rather linguistic capital dispossession. 164 ajit mohanty & tove skutnabb-kangas

The best teachers in the world will have limited impact when children are undernourished, have high levels of lead in their bodies, live in noisy and dangerous environments, get too little sleep, and have no access to reading material (Krashen 2010). There is no reason to believe that educational authorities would be in any way “nicer” than other policy makers. In that sense, it is the parents who should make demands, and choose the type of education that promotes their children’s interests. But in terms of “choosing” the kind of education that, based on research results, would be the best for ITM children, namely mother-tongue-based multilingual education (MLE), most parents have no choice! For a choice to exist, – alternatives need to exist. MLE does not exist today for most ITM children – they HAVE to accept dominant-language-medium submersion education. – parents need to have solid, research-based knowledge about the long- term consequences of their choices. Most parents in the world do not have this.7 – parents need to know that all languages are fit for education, and that either/or is a false ideology. Children can learn BOTH their own language AND one or several dominant languages well if the education is organised to make this possible. The United Nation’s 2004 Human Development Report (http://hdr.undp .org/en/reports/) linked cultural liberty to language rights and human development. It argued that there is no more powerful means of ‘encouraging’ individuals to assimilate to a dominant culture than having the economic, social and political returns stacked against their mother tongue. Such assimilation is not freely chosen if the choice is between one’s mother tongue and one’s future. In fact, the term “choice” itself “is a misnomer. The whole logic of choice is predicated on the fact that human beings are rational seekers of self- interest and base their decisions on rational calculation and free will” (Kabel 2010). People are supposed to weigh different alternative strategies and choose the one that maximises their benefits and profit. One type of ‘proof’ of the absence of a link between language and identity presented

7 In both India and Nepal we are involved in “grassroots” information distribution about the need of and benefits from MLE – see Mohanty, Panda & Skutnabb-Kangas 2009, Skutnabb-Kangas 2009. mle as an economic equaliser in india and nepal 165 by myth-makers who criticize what they call essentialism builds on rational-choice theory: If the link between identity and language were strong, the benefits of maintaining a mother tongue would weigh more than the benefits of shifting to a dominant language. The ‘exponentially increasing phenomenon of language shift’ can only be explained by ‘the absence of a link between identity and particular languages’, Stephen May writes (2005: 328–329). Ahmed Kabel calls rational-choice theory sacred liberal dogma. The fact of the matter is that parents ‘make choices’ with regard to languages under enormous structural constraints. Some of these constraints may be too flagrantly palpable to simply ignore: violence, dispossession, threat to life … while others may be beyond the conscious awareness of the actors themselves. Also, given the overwhelming amount indoctrination and propaganda as well the systemic violence that they are subjected to, parents can hardly be said to be meaningfully ‘choosing’ (Kabel 2010). The structural constraints limiting parents’ agency8 may include education that promotes linguistic genocide. The United Nations International Convention on the Prevention and Punishment of the Crime of Genocide (E793, 1948) has five definitions of genocide. At least two of them, possibly three, are relevant for ITM education: Article II(e): ‘forcibly transferring children of the group to another group’; and Article II(b): ‘causing serious bodily or mental harm to members of the group’; (emphasis added). Can most Indigenous and minority education in the world be claimed to participate in committing linguistic and cultural genocide, according to the genocide definitions in the UN Genocide Convention? Can it be seen as a crime against humanity? Robert Dunbar (human rights lawyer) and Tove Skutnabb-Kangas have asked this question in several publications. An Expert paper written for the United Nations Permanent Forum on Indigenous Issues (Magga et al. 2005), looked at violations of the (human) right to education. The Expert paper contains sociological and legal argumentation which shows that to educate Indigenous/tribal and minority (ITM) children through a dominant language in a submersion or even early-exit transitional programme violates the human right to education. This right is encoded in many international human rights documents, also

8 See Ahearn 2010: 28–33 for a reflective discussion on agency and structural constraints. 166 ajit mohanty & tove skutnabb-kangas in the UN Convention on the Rights of the Child (Art. 29). The Convention has been ratified by ALL other UN member states except two: Somalia and the USA… Subtractive dominant-language medium education for ITM children – prevents access to education, because of the linguistic, pedagogical and psychological barriers it creates. Thus it violates the right to education; – often curtails the development of the children’s capabilities, and perpetuates thus poverty (see economics Nobel laureate Amartya Sen); – is organized against solid research evidence about how best to reach high levels of bilingualism or multilingualism and how to enable these children to achieve academically in school.

In the second Expert paper, Dunbar & Skutnabb-Kangas (2008) again considered the possibility that such subtractive educational policies, implemented in the full knowledge of their devastating effects on those who suffer them, may constitute international crimes, including genocide, within the meaning of the United Nations’ 1948 Convention on the Preven tion and Punishment of the Crime of Genocide (the “Genocide Convention”) and other international documents. That States persist in such subtractive policies, given such knowledge, can, it is concluded, from an educational and sociological point of view be described as a form of linguistic and cultural genocide. Dominant-language medium education for ITM children can cause serious physical and mental harm. Subtractive dominant-language medium education for ITM children can have harmful consequences socially, psychologically, economically, and politically;

– very serious mental harm: social dislocation, psychological, cognitive, linguistic and educational harm, and, partially through this, also economic, social and political marginalization; – often also serious physical harm, e.g. in residential schools, and as a long-term result of marginalisation – e.g. alcoholism, suicides, incest, violence, illnesses, short life-span. The paper contains legal argumentation which shows that forcibly (i.e. when alternatives do not exist) educating ITM children in a dominant language in submersion and even early-exit transitional programmes is at least sociologically and educationally genocide. We need some more court cases to ascertain the precise interpretations of some concepts in the Genocide Convention’s definitions. In any case this education might be mle as an economic equaliser in india and nepal 167 legally labeled a crime against humanity. The conclusion in the second Expert paper is: The various forms of subtractive education to which indigenous children have been and continue to be subject results in very serious and often permanent harmful mental and physical consequences. It is now at odds with and in clear violation of a range of human rights standards, and in our view amount to ongoing violations of fundamental rights. It is at odds with contemporary standards of minority protection. In our view, the concept of “crime against humanity” is less restrictive [than genocide], and can also be applied to these forms of education. In our view, the destructive consequences of subtractive education, not only for indigenous languages and cultures but also in terms of the lives of indigenous people/s, are now clear. The concept of “crimes against humanity” provides a good basis for an evolution that will ultimately lead to the stigmatisation through law of subtractive educational practices and policies. In a new book (2010; downloadable on the internet), Skutnabb-Kangas and Dunbar consider the extent to which the various forms of submersion education practiced both earlier and today by States could be considered to give rise to international criminal responsibility, exploring the application of the legal concepts of genocide, and of crimes against humanity. The term ‘crime against humanity’, first used in the modern context in respect of the massacres of Ottoman Turkey’s Armenians of 1915, was translated into international legal principle in 1945, Although long associated with armed conflict, it is now accepted that they can also be perpetrated in times of peace, and can now be seen as part of customary international law. Although the concept is “sweeping”, it has a number of common features. First, they are “particularly odious offences in that they constitute a serious attack on human dignity or a grave humiliation or degradation of one or more persons”. Second, they are not isolated or sporadic events, but “are part of a widespread or systematic practice of atrocities that either form part of government policy or are tolerated, condoned, or acquiesced in by a government”. Third, such crimes can be perpetrated in time of war or in peace. Fourth, they are committed against civilians or, under customary international law, enemy combatants in armed conflicts (Cassese, 2008, 98–101). The most complete description of what constitute “crimes against humanity” is now set out in the Rome Statute of the International Criminal Court of 17 July, 1998 (the “ICC Statute”) (http://untreaty.un.org/cod/icc/statute/romefra.htm). In the Skutnabb- Kangas and Dunbar (2010) book (which the very short description above is based on), they note the existence of a range of barriers to the application of either concept to forms of submersion education, in the absence of 168 ajit mohanty & tove skutnabb-kangas concrete court cases that could clarify some of the concepts. But they also note, particularly in relation to the concept of crimes against humanity, that the law is not particularly clear and is constantly evolving, which may make the application of at least some concepts of international criminal law to submersion education possible as the law develops.

3. Consequences of Subtractive Dominant Language Medium Education: Identity Strategies

In many countries around the world children from ITM groups are forced to go to schools, which do not use their mother tongues (see Skutnabb- Kangas, 2000 for a discussion of the global scenario). In addition to violating the right to education, as described in section 2, such forced submersion education in a dominant language has a subtractive effect on their mother tongues while the development of proficiency in the language of schooling can be slow and may remain limited. Due to the inadequate development of L1 and L2 and limited bilingual proficiency, children fail to benefit from the usual cognitive and metacognitive advantages associated with bi-/multilingualism (see Mohanty 1994 on these). Problems of non- comprehension in the classrooms cumulate to school failure and large scale ‘push-out’. Forced imposition of dominant languages also has adverse impact of cultural pride and identity. In effect, it prevents access to education, because of the linguistic, pedagogical, cognitive (CALP-related9) and psychological barriers that it creates. Education, which imposes a dominant language on ITM children, is clearly associated with loss of mother tongues and it amounts to forcible assimilation of minorities to the dominant language and culture. Thus it often curtails the development of the children’s capabilities, and perpetuates thus poverty. An analysis of the use of languages in Indian education (Mohanty 2006) – as media of instruction (MOI) and as school subjects – shows that minority languages are weakened and endangered by their exclusion and non-accommodation in school education and literacy programs. The exclusion takes place despite a clear constitutional provision that the state and the local authorities shall endeavour to “provide adequate

9 See Jim Cummins’ home page at http://www.iteachilearn.com/cummins/ for the two important concepts BICS (Basic Interpersonal Communicative Skills) and CALP (Cognitive-Academic Language Proficiency). mle as an economic equaliser in india and nepal 169 facilities for instruction in the mother tongue at primary stage of education to children belonging to minority groups” (Article 350A, Constitution of India). Exclusion of mother tongues in formal education follows from the perception of powerlessness and low vitality ascribed to minor, minority, and tribal languages compared to the dominant majority languages such as English. In fact, English happens to be the most preferred MOI in India and has a significant presence in school curricula all over the country. The role of English in triggering a power game and a hierarchical peck- ing order of languages has been discussed elsewhere (see Mohanty 2004, 2006). Preference for English medium education has relegated Hindi and other major regional and constitutional languages to lesser positions in education (Kurien 2004), considerably weakening them in all spheres of the Indian society. These major regional languages, in turn, tend to push the tribal, minor, and minority languages out of favour. They are imposed on ITM speakers particularly in domains of education and official use. The prominent role of English in education can be viewed as a key factor in such outcomes in respect of the minor and dominated languages. The Sixth All India Educational Survey of the National Council of Educational Research and Training (NCERT) shows that out of 41 languages used in schools (both as MOI and as subjects) only 13 are tribal languages10 (Gupta 1999, in Statement 11.2 in Gupta 1999). Except for one (Nicobaree), these tribal languages are from North Eastern States, which have a much higher concentration of tribal population compared to the rest of India. It should also be noted that the literacy figures for the Scheduled Tribe (ST) groups are also much higher in the NE States, and these states record a better rate of economic development than the other states. Further, out of the 13 tribal languages in schools, only three to four are used regularly as MOI (Jhingran 2005); the rest are languages taught as school subjects or used as MOI in some special programs, but not on a regular basis. Thus, less than 1% of the tribal children get an opportu nity for education through the medium of their mother tongues. This neglect of tribal MTs is quite striking since a very large number of classrooms throughout the country have sizable proportions of tribal children. In twenty states for which DISE (District Information System for Educa tion – a database of the Ministry of Human Resource Development,

10 The Anthropological Survey of India (ASI), in its People of India project (POI) (Singh 2002), listed 623 tribal communities out of which about 573 are notified or scheduled for official recognition. The tribal groups speak 218 languages out of which 159 are exclusive to them; 54 languages are used by the tribals for inter-group communication (Singh 2002). 170 ajit mohanty & tove skutnabb-kangas

Government of India) is available, there are 103,609 Primary Schools (grades I to V) with more than 50%, 76,458 schools with more than 75% and 58,343 schools with more than 90% ST children (Jhingran 2005). All of these are taught in a submersion program, through the medium of majority languages. The DISE does not even have any information on the first language of the ST or other children whose home language is different from the school language. As we have pointed out, exclusion of mother tongues from early education has serious consequences for tribal children in India. This is reflected in poor educational performance of the tribal groups – the low literacy and high “push out” rates – and, consequently, in capability deprivation and poverty (see Mohanty, 2008, for some selected indicators of poor educational development of the scheduled tribes in India). From the beginning of schooling, tribal children take at least two to three years to learn (something of) the language of the teaching and the textbooks (Mohanty 2000). This effectively means that their learning of school content and concepts become quite slow from the very beginning of schooling. A study (Jhingran, 2005) in four states – Assam, Gujarat, Orissa, and Madhya Pradesh – showed some striking problems of non-comprehension for the tribal and other children schooled in second language submersion programs. It revealed that children had little or no comprehension of the teacher’s language, even after about six months in Grade I. The Grade I children showed no recognition of alphabets, except when the characters were arranged in sequence (showing rote memorization). Since children had no understanding of the language of teaching (L2), there was very little conversation or oral work in the classroom; teachers emphasized passive participation, such as copying alphabets and numbers from black- board or textbooks. Interestingly, the study found the situation to be a little better when there was a tribal teacher who knew the mother tongue (L1) of the children and could ‘unofficially’ lapse into L1 in certain circumstances, particularly when the children had problems with L2. The academic achievement of these children in submersion schooling in a dominant language (L2) was found to be lagging behind even in Grade V:

[They] read with a lot of effort, mostly word by word …. Their oral skills in the second language are poor and they are definitely more comfortable speaking in their mother tongue. Such children cannot frame sentences correctly and have a very limited vocabulary. While they can partially comprehend text (of grade 2/3 level), they were unable to formulate answers to mle as an economic equaliser in india and nepal 171

simple questions in the standard language. In most schools, the tribal language-speaking children could not score a single mark in the reading comprehension test (Jhingran 2005:50). Other studies also show similar findings in respect of the tribal children in India in submersion education (Mohanty, Mishra, Reddy & Ramesh 2009). For example, a national assessment of learning achievement of students at the end of Class V, conducted by NCERT in 2004 with a country-wide sample of 88,271 children (Singh, Jain, Gautam, & Kumar 2004), showed that the ST students scored significantly lower than the other students in tests of learning achievement in Mathematics, Environmental Studies, Language, Reading Comprehension, and Grammar and Usage. With very low levels of classroom achievement, it is not surprising that over 50% of the tribal children entering Grade I are pushed out by Grade V and over 80% by Grade X. This means that only 20 out of 100 tribal children joining school survive, to appear at high school examinations, which only about 8 pass. Thus, the system of submersion education in a dominant language leads to 92% being pushed out earlier or failing high school leaving exams. In higher and technical education, the representation of the STs is dis- mally low, despite programs, which reserve places for students belonging to the Scheduled Tribes or Scheduled Castes. The proportions of STs in higher and technical education during the years 2000 to 2002 varied from 2.97 to 4.64 per cent, far below their 8.2% share of the population (Mohanty 2008). These figures have not shown any appreciable increase in recent years. Educational failure and the consequent lack of access to higher education limit the upward socio-economic mobility of tribal groups in India. There is a linguistic double divide, between English and regional majority/dominant languages (vernaculars), and between the vernaculars and ITM languages (Mohanty 2010). This hierarchical power structure of languages leads to deprivation and impoverishment of languages, threats of language shift, and endangerment and identity crises for the ITM language speakers. This is certainly true of all South Asian countries, which are typically characterized by multilingual social realities and monolingual state practices (see also Benson & Kosonen 2010, and articles in Tsui & Tollefson 2007). Linguistic minorities and speakers of dominated and indigenous languages in these societies seem to be adopting various strategies of negotiation and assertion of their identities. Collective identity strategies have led, in some cases, to language movements, and to the assertive maintenance and revitalization of languages (such as Bodo 172 ajit mohanty & tove skutnabb-kangas and Santali). In most cases, passive acceptance of the status quo by the speakers of indigenous languages in India has also resulted in the acceptance of the dominance of majorised languages, and a dissociation between instrumental and integrative11 functions of language (Mohanty 2004). Such dissociation is evident from their endorsement of the major languages for both the children’s education and for use in economically significant domains (instrumental functions), and of the use of the groups’ own native languages for in-group identity and culture (integrative/ expressive functions). Such divergent identity strategies can be seen as leading to instances of “linguistic identity without language” and “language without identity”. An example of the former is the case of monolingual Konds who use the Oriya language only but call themselves Kui

11 Two kinds of interest in LHRs can be distinguished, according to Ruth Rubio-Marín (Professor of Constitutional Law in Seville, Spain). One is “the expressive interest in language as a marker of identity”, the other an “instrumental interest in language as a means of communication” (Rubio-Marín 2003: 56); these correspond fairly closely to what we (Skutnabb-Kangas & Phillipson, e.g. 1994) have called “necessary” and “enrichmentori- ented” rights. The expressive (or non-instrumental) language claims aim at ensuring a person’s capacity to enjoy a secure linguistic environment in her/ his mother tongue and a linguistic group’s fair chance of cultural self-reproduction (Rubio-Marín 2003: 56). It is only these rights that Rubio-Marín calls “language rights in a strict sense” (2003: 56), i.e. these could be seen as linguistic human rights (LHRs). The formulation above beautifully integrates the individual rights of ITMs with their collective rights. It is mainly these expressive rights, or lack of them, that are exemplified in the quotes. Educational language rights, on the other hand, seem superficially to be more about instrumental rights. These instrumental language claims aim at ensuring that language is not an obstacle to the effective enjoyment of rights with a linguistic dimension, to the meaningful participation in public institutions and democratic process, and to the enjoyment of social and economic opportunities that require linguistic skills (ibid.). But the educational goals presented in Section 4.1, as well as the educational linguistic rights discussed in Chapter 2, show clearly that good ITM education has both expressive and instrumental goals. Unfortunately these insights are adversely affected when some instrumentalists claim that those interested in the expressive aspects exclude the more instrumental communication-oriented aspects (for instance unequal class- or gender- based access to formal language or to international languages). The debates in 2003 numbers of the Journal of Language, Identity and Education are an example of this old division based on outmoded ideas being reinvented again. The same debates have been fought already in the 1960s and 1970s, both over integration of minorities (are they more interested in their languages, or in jobs) and over indigenous claims (are they more interested in identity, language and traditions, or in autonomy/land rights). Most groups are mostly interested in both types of rights, expressive and instrumental, and often one is a prerequisite for the other, with both being alternately causal AND dependent variables. Many of us work with both aspects, and see them as complementary, not mutually exclusive. mle as an economic equaliser in india and nepal 173 people, i.e. they have Kui linguistic identity12). An example of the latter is those many upper-class English-educated Bhojpuri speakers who do not identify with Bhojpuri.13 Use of indigenous and vernacular languages is often associated with shame and denial of proficiency in these languages. A third strategy of the ITM groups is one of individual level assimilation into the dominant language (and culture) and ‘invisibilisation’ of their indigenous languages, accepting language shift and dominance by the major languages. Many ITM communities have succumbed to the pressure from the dominant languages. They accept the progressive loss of their mother tongues as a fait accompli. As a result, intergenerational transmission of many ITM languages is no longer evident. This has led to loss of many ITM languages in India. UNESCO’s Atlas of World’s Languages in Danger lists 197 languages for India in the endangered language category, the highest number in the world. Over 80% of these are tribal languages. These are some indications of how the hierarchical linguistic structure and the double divide in Indian society are variously negotiated through complex social-psychological processes, affecting the future of languages (Mohanty 1991, 2004). However, assertive maintenance and revitalisation strategies have led to recognition of some languages (such as the Constitutional recognition of Bodo and Santhali as ‘Official Languages’) and significant development of these languages. The Bodo language, for example, has shown a phenomenal development in recent years, with its use in all levels of formal education, from primary to doctoral level programs, and large-scale use in media and other socio-economic domains. Since the granting of autonomous status to the Bodo community and constitutional recognition of Bodo language, there has been a growing number of newspapers, magazines, printed texts and literary productions, television stations, films and various other commercial applications in Bodo. In contrast, passive acceptance and ‘invisibilisation’/ assimilation strategies have led to progressive marginalisation, impoverishment and loss of most of the ITM languages in India. Studies of multilingual socialisation in

12 Kui is the indigenous language of the Kond tribe in Kandhamal District of Orissa. In parts of the district, there has been a shift of Kui in favour of Oriya, the state dominant language. The Oriya monolingual Konds in these parts of Kandhamal still identify with Kui language calling themselves ‘Kui people’. 13 Upper class Bhojpuri speakers often assume a superordinate identity as Hindi speakers. Srivastava (1989) also noted that migrant Bhojpuri workers in Maharashtra show a language shift towards Hindi. 174 ajit mohanty & tove skutnabb-kangas

India (Bujorborua 2006; Mohanty et al. 1999) show that children in India develop an early awareness of the double divide and the social norms of preference among the languages in the hierarchy. For example, in discussing the stages of multilingual socialisation, Mohanty et al. (1999) show that 7- to 9-year-old children in India have a clear awareness of the higher social status of English vis-à-vis their own mother tongues, and that schools do contribute to the development of such early awareness. Bujorborua’s (2006) study of multilingual socialisation of Assamese children shows that children develop an early preference for using English, over Assamese. She also shows that parental language socialisation strategies target transmission of the socio-linguistic hierarchy of languages and the preference for English over Assamese, Hindi and other languages. These studies show how the relationship between language and power and the hierarchy of preferences for languages are socially constructed and legitimated through the processes of language socialisation. Analysis of the acculturation strategies and negotiation of identities in situations of contact between Bodo and Assamese in Kokrajhar, Assam, and between Kui and Oriya in Orissa (Mohanty & Saikia 2007, Mohanty, 2007) shows why some marginalised linguistic groups resort to assertive maintenance, while others show passive acceptance (and assimilate). Analysis of attitudes towards maintenance of one’s own group’s language and culture, intergroup relations, subjective ethnolinguistic vitality and social identity of the linguistic groups in contact shows that stable bilingualism in language contact is associated with social integration. In situations of contact between two linguistic groups, one of which is highly dominant and the other marginalised, perception of own-group vitality by the dominated group may be so low that they view their own powerlessness as legitimate and do not “experience” any discrimination. How ever, when the dominated group experiences discrimination it tends to show separation and rejection strategies of acculturation; this leads to tension in intergroup relationship. Field studies of collective action by Bodo and Kui speakers in India show that dissociation of integrative and instrumental dimensions in language maintenance attitudes are associated with a passive identity strategy. The Kui speakers view their language as vital for maintenance of their cultural and linguistic identity. At the same time, they do not perceive any value in their language for their socio-economic mobility. Analysis of the history of the Bodo language movement, on the other hand, shows that, prior to the emergence of organised social movement against the dominance of Assamese language mle as an economic equaliser in india and nepal 175 over Bodo, individual identity strategies led to perception of intergroup boundaries to be permeable and tendency to assimilate into the dominant group. However, as the language movement got organised with emergence of committed leadership, intergroup boundaries came to be perceived as impermeable and collective identity strategies resulted in increasing rejection of the tendency to assimilate. Thus, permeability of intergroup boundary is not an objective condition; with increasing salience of social identity, boundaries are perceived as impermeable. Further, when a community views its own ethnolinguistic vitality as very low it tends to assimilate leading to language shift. And when the perceived ethnolinguistic vitality is high (as with the Bodo), the community tends to assert its ethnolinguistic distinctiveness engaging in language maintenance strategies. In contrast, some groups such as the Konds may have a level of intermediate range of perceived vitality viewing their language as socially significant for their identity but not having any instrumental value. In such cases, the community and its language remain marginalised and the language tends to be pushed to limited domains of home and in-group communication. Thus, the findings support a double threshold hypothesis of ethnolinguistic vitality, which predicts language shift below the lower threshold, marginalised maintenance below the higher threshold and collective action beyond the higher threshold. With increasing salience of group identity and favorable conditions for collective action (e.g. leadership), collective identity strategies (e.g. social movement participation) are preferred over individual strategies (such as assimilation). These studies of the social psychological aspects of languages in contact show that dominance of some languages and discrimination against others lead to social tension, impoverishment and loss of languages. Thus, imposition of dominant languages in education and other socio-economic domains has adverse impact on ITM languages and leads to poverty and loss of linguistic diversity.

4. MLE as Economic Equalizer

Every two to three weeks, the last speaker of a language is dying in some corner of the world, according to UNESCO. Loss of linguistic diversity and linguistic genocide are grim realities to which most of us seem to have closed our eyes, ears and minds. Submersion education may lead to the extinction of Indigenous/tribal/local languages, thus contributing to the disappearance of the world’s linguistic diversity. It is important for the 176 ajit mohanty & tove skutnabb-kangas future of the planet to maintain all the languages in the world: much of the most sophisticated knowledge about how to live sustainably, in balance with the ecosystem, is encoded in them, and disappears if the languages (are made to) disappear. Is this loss of language inevitable, as commonly believed? Or, are there alternatives? Is it unavoidable that the less powerful ITM language speakers continue to be deprived of any opportunity to develop their capability through severally imposed systems of subtractive education in a dominant language, which perpetuates the existing inequalities, pushes them into a vicious circle of poverty and accelerate the loss of linguistic and cultural diversity? In India, children from among the speakers of 159 ITM languages constituting over 8% of the population are led to large-scale educational failure. This is because 99% of such children do not understand the dominant language of the schools, the teachers and the textbooks when they enter school depriving the tribal children of opportunity for development out of poverty. National assessment of children’s classroom achievement (Singh, Jain, Gautam and Kumar 2004) at the end of the primary level education (Grade V) shows that the tribal children as a group are the lowest performers. Several studies (Jhingran, 2005; Mohanty, 2000, 2009) show that it takes at least two to three years for the average tribal child to understand the language of the teacher and the classroom; most of such children face the problem of non-comprehension during the primary school years and are rendered incapable with very limited academic success and very low rate of entry (only 2 to 4%) into enabling levels of higher and technical education, despite a policy of reservation of 8% of the intake for the tribal groups. In Nepal a large proportion of ITM children enrolled in school are ‘pushed out’ during early years of primary education, a majority in Grades 1 and 2 (Skutnabb-Kangas & Mohanty, 2009). A number of studies in India (see Mohanty, 2010; Mohanty, Mishra, Reddy and Ramesh, 2009) show that, compared to other disadvantaged groups who do not face the problem of mismatch between home language and school language, tribal children facing a language barrier in schools due to education in a dominant language have poorer school attendance, lower classroom achievement, and higher ‘push out’ rates and school failure. Clearly, the language disadvantage of tribal children in forced submersion schools is a major factor in large-scale school failure and high exclusion rates, contributing to their capability deprivation and poverty (see Mohanty 2008b, and 2010 for elaborate discussion). In contrast, new experimental programs of mother based multilingual education (MLE), using the MT as the language of early literacy and school mle as an economic equaliser in india and nepal 177 learning makes a difference for the ITM children in India and Nepal as in many other parts of the world. School participation through the home language gives a sense of cultural identity and belongingness, which acts as a strong motivating force, keeping the children actively engaged in their schools. An example: Panchu, a Kui speaking Kond tribal child, in Class 2 of an experimental MLE school (MLE Plus Program) in Sapeli, Kandhamal District of Orissa, India, is dragged by a hyena on his way to school in September 2009. He fights bravely and is rescued by other school-going children, badly bruised.14 He gets back home after nearly two week’s hospitalization. Still recovering from the injury, he defies all predictions, and comes back to school. He is in Class 4 now (September 2011) and finds his school experience quite interesting and attractive. Panchu’s story is striking because most tribal children in submersion classrooms do show a very high inclination to remain absent from school with any slight excuse and maximum “drop out” happens during the first two years of schooling. The language disadvantage of tribal children in dominant language schools has major “discouragement effects”, which, as Jean Dreze and Amartya Sen (2002) point out, tends to keep them out of school. This realisation led to efforts in India and Nepal to try out various models of mother tongue-based education for Indigenous and tribal children (Mohanty 1989, 2006). The early attempts were transitional programs of bilingual education aiming at a smooth transition from the tribal MT to the dominant language of schooling. These early programs lacked any theoretical framework and were dropped without much success. Only recently, some states have started structured programs of mother tongue-based MLE for tribal MT children. Mother tongue-based MLE started in Andhra Pradesh in the year 2004 in eight tribal MTs for children in 240 schools and in Orissa in 2006 in ten tribal MTs in 195 schools (see Mohanty at al. 2009: 278–291 and Nag & Manoharan 2009, for details of these programs15). These programs use MT as the only language of teaching and early literacy instruction for the first three years in primary level schooling. The state majority language (L2), Telugu in Andhra Pradesh and Oriya in Orissa, is introduced as a language subject for the development of oral communicative skills in the second year

14 Panchu’s story appears in Swara (Issue 2, 2010), the newsletter (edited by Minati Panda) of the National Multilingual Education Resource Consortium (www.nmrc-jnu.org). 15 The MLE programs in both the states are now being upscaled to a larger number of schools and to other tribal MTs, and new states such as Chhattisgarh and Jharkhand are planning MLE programs. 178 ajit mohanty & tove skutnabb-kangas and for reading and writing skills in the third year of schooling. The state language (Telugu/Oriya) is used as a language of teaching along with the MT from the fourth year. The program envisages the MLE children joining “regular” school programs in the majority language of the states (Telugu/ Oriya) from the sixth year of schooling. In these programs, the tribal languages are written in the script16 of the dominant state language with some modifications wherever necessary. The teachers in the MLE programs are from the tribal language community and speak the target tribal language. The programs follow the common school curricula of the states but attempt to integrate the indigenous knowledge system of the tribal language community in developing the textbooks and other curricular materials. A special intervention program in Orissa, called MLE Plus (MLE+) (Panda & Mohanty 2009) is implemented in eight of the government MLE schools in two tribal languages – Kui and Saora. This program has a special focus on cultural pedagogy and emphasizes culture- and community- based approaches to children’s collaborative classroom learning and development of cultural identity. Several evaluations of the MLE and MLE+ programs have shown positive effects on children’s classroom achievement, school attendance and participation, parental satisfaction and community involvement (Mohanty et al. 2009: 278–291; Panda & Mohanty 2009). Evidently, the experimental MLE programs in India provide better quality education for the tribal children compared to the traditional programs of submersion education in the state majority language, which is not their MT. In Nepal,17 the 2001 census recorded 92 languages, while the Ethnologue, 16th edition, claims 124 living languages and Yonjan-Tamang (2006) claims over 143 languages. 19 languages are estimated as being on the verge of extinction (Yadava & Grove 2008). Most languages have fairly few speakers; fewer than 20 have more than 100,000. The literacy rate in the 2001 census was 54%: 65% for males, 42% for females. With 2005–2007 data, the literacy rate for adults (15 years and older) was 56.5% (70.3 for

16 Tribal languages in India do not have any exclusive script system and are usually written in the script of either the dominant regional language or another major language. But in recent years some tribal languages, such as Santali, have developed their own writing system. 17 The Nepali section is largely based on Nurmela, Awasthi & Skutnabb-Kangas 2010, and, to some extent also on Skutnabb-Kangas & Mohanty 2009. Thanks to Iina Nurmela and Lava Deo Awasthi! mle as an economic equaliser in india and nepal 179 males, 43.6 for females; for youth between 15 and 24 it was 79.3% (85.3 for males, 73.0 for females) (Global Education Digest 2009, Table 15, p. 192). Nepali is the main language of teaching. About 50.1% of Nepal’s school-age population speaks a language other than Nepali as a mother tongue. Teaching Indigenous, tribal and minority (ITM) children through the medium of a language that they do not understand obviously contributes to the low literacy rates. One of the major causes of children’s “dropout”, class repetition and failure is attributed to the use of Nepali (or English), instead of children’s mother tongues in early grades of school education. According to a study carried out by EDSC (1997: 95) on the National Achievement Level of Grade 3 Students “the parents of the top 10 schools’ students were from the Nepali mother tongue group whereas the parents of the bottom 10 schools’ students came from non-Nepali speaking group”. This shows the disadvantage the non-Nepali speaking children are facing in schools of Nepal (ibid.). As the statistics show, sooner or later ITM children get frustrated and stop coming to school, i.e. the structure of the education with a non-comprehensible MOI pushes them out. The National Language Policy Recommendation Commission in Nepal pointed to this problem as early as 1994 (Yadava & Grove 2008: 24). The children enrolled at primary level tend to “drop out” from the schools. In some cases, the students leave the school and enrol again. For these students it takes nine to twelve years to complete the primary education. This is an indication of a great educational loss. “The majority of the school dropouts are found in grade (1–2)”, Yadava and Grove state (p. 24). Lava Deo Awasthi stated (2004: 286) in his PhD study Exploring Monolingual School Practices in Multilingual Nepal: The existing medium of instruction (MOI) practices do not allow NNS [= non-Nepali-speaking] children to receive education through their mother tongues […]. Teaching in schools operates in Nepali despite the fact that a majority of school children in non-Nepali speaking areas speak other language(s) than Nepali. […] My evidence suggests that the Nepali-only practice in classrooms has devastating effects on NNS children’s school performance and on their self-esteems. But listing push-out, repetition and failure rates in early grades do not describe the extent of harm that has been done to Indigenous children: the lack of appreciation of the Indigenous culture and language by the dominant society has led to feelings of inferiority, humiliation and self-hate when speaking one’s native language (Hough, Thapa Magar & Yonjan-Tamang 2009: 147). The situation is thus similar to India’s ITM children. Similar harm was described in detail in Mauritius, at an 180 ajit mohanty & tove skutnabb-kangas

International Hearing on the Harm done in Schools by the Suppression of the Mother Tongue, 20–24 October 2009 (See the Report, Findings and Recommendations , at http://www.lalitmauritius.org, 27 Oct 2009, Documents). The existence of immense diversity of languages and cultures in Nepal proves that multilingualism thrived in the past, prior to the spread of the monolingual ideologies, promoted by the Nepali state under the influence of the British Empire in India. The systematic destruction of local languages through glorification of one dominant language can be attributed to the work of the Macaulay Minutes of 1835 in India at the regional level. In Nepal, this led to the Wood Commission Report of 1956. The Macaulay Minutes of the British India and the Wood Commission of Nepal had the same mission to accomplish: the spread of English in India and the spread of Nepali in Nepal (see Phillipson, 1992, 2010; Prasad, 2001; Awasthi, 2004). Just as English proved to be a means of anglicising India and creating linguistic power hierarchies, so did Nepali for the spread of mainstream language and culture across Nepal. The power of Nepali contributed significantly to invisibilising the language resources of the Indigenous/tribal peoples and minority groups (ITMs), and made them inconvertible to other resources, including political power (see Skutnabb- Kangas, 2000, Chapter 6, Globalisation, Power and Control). The insurgency that Nepal faced for more than a decade in the past can also be interpreted claiming that the linguistic power hierarchies resulting from the monolingual orientations might have contributed to the loss of cultural cohesion and have increased social and economic cleavages, leading to majority/minority splits, social tensions and class conflicts in the country (see Raj, 2004). Nepal’s new governments since 2006 seem to have shown awareness of the need and interest in improving the mother-tongue-based MLE. Government’s changed policy intentions on MLE were already very visible in 2006 but the implementation arrangements were not given due consideration in the Interim Constitution (2007). However, the political changes that took place in the country reiterated the need for providing mother tongue medium (MTM) education for children in the early grades of their primary education. Both the Interim Constitution 2006 and the National Curriculum Framework (NCF, 2007) ensure the right of every child to have their education through the medium of their mother tongue during the first grades of their school years. The attitudinal changes can also be seen in relation to Nepal’s international commitments. In addition to many of the more general UN human mle as an economic equaliser in india and nepal 181 rights instruments, Nepal’s government has ratified or voted for two major UN instruments regarding the rights of Indigenous peoples. International Labour Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries (see http://www.ilo.org/ilolex/cgi-lex/ convde.pl?C169) was ratified by Nepal in September 2007, and it entered into force one year later. The Convention, as a treaty, creates binding legal obligations for those States that ratify it. Thus far, only 22 states have done so, and Nepal is the first state in Asia to have done this. Nepal also voted in favour of the adoption of the United Nations’ General Assembly Declaration on the Rights of Indigenous Peoples (UNDRIP) of 13 September 2007 (http:// daccess-ods.un.org/TMP/8251378.html). As a General Assembly declaration, UNDRIP does not, strictly speaking, create binding legal obligations, but the moral obligations are still major. Both give ITM children a right to mother tongue medium education, especially when interpreted together with other instruments, and comments to these. A recent small-scale Multilingual Education Programme (2006–2009) in Nepal is similar to the Orissa programme in India. The programme was to achieve five interconnected objectives: 1. Creating a conducive policy environment for MLE; 2. Developing an institutional structure that will facilitate a bottom-up implementation of sustainable MLE and coordinate MLE activities; 3. Strengthening the capacity at central, district and community levels to implement MLE; 4. Creating and establishing models of learning environments that facilitate the non-Nepali speaking students’ learning and prepare them to continue their education after the primary level; 5. Establishing models of creating support networks of schools implementing MLE. The MLE programme included a small-scale intervention to build models of MLE in primary schools. Seven schools in six districts (out of 75 districts and 32,000 schools in the whole country) began work with MLE in 2007, using eight ITM languages as media of instruction (MOIs) in the first three grades. The approach was bottom-up and Indigenous knowledge of elders was used as a basis for textbooks which were developed in cooperation with elders, children, parents and teachers (see Hough, Thapa Magar & Yonjan-Tamang 2009, Yonjan-Tamang, Hough & Nurmela, 2009). In an effort to suggest a model for nation-wide implementation, the pilot experience was cascaded by the pilot school communities themselves into 182 ajit mohanty & tove skutnabb-kangas two more schools in each district in 2009. The number of schools currently implementing MTM based education is very small. However, it has opened ways for the expansion and consolidation of MLE interventions, building on the lessons learnt and gains made so far. Similar results to India are already visible, with children who like coming to school, parents who can cooperate with teachers, lower push-out rates, etc. There are many challenges, though; advocacy, attitudes, teacher training, complex decen- tralisation and coordination processes, financial hurdles, methodology in linguistically diverse villages, etc. (see Acharya 2009, Bajracharya et al. 2008, Nurmela, Awasthi & Skutnabb-Kangas 2010, Taylor 2010). Lava Deo Awasthi, the father of the Nepali MLE programme (who has himself been through many of the hurdles, not being a native Nepali speaker, “dropping out” of school in grade 6 and rejoining after a 3-year break, etc, was in September 2010 appointed Director General of the Nepali Department of Education (DoE). On his first day in the new position, he asked the directors of the various agencies under DoE to urgently make concrete plans on how to achieve the goal of every Nepalese child having their primary education through the medium of their mother tongues before 2015.

5. Concluding Remarks

In face of today’s widespread mutual contact of bi/multilingual individuals and communities, languages could to be maintained. Languages can complement each other, with a smooth functional allocation into different domains of use – there is no need for any either/or thinking. We are ourselves examples of this. Ajit Mohanty uses his mother tongue, Oriya, in his home, English in his work place, Hindi in the market place and for viewing television programs, Bengali for communication with his domestic help (and for others who speak the language), Sanskrit for his religious activities, and some Kui with the tribal informants for his research with the (Kond) tribal community. Languages complement each other in his life as they do in those of other Indians, without any mutual conflict. This, as well as fluidity of perceived boundaries between languages, is also associated with the multiplicity of linguistic identities which forms a part of early multilingual socialization (Mohanty, Panda & Mishra 1999) in India. Tove Skutnabb-Kangas uses one of her two mother tongues, Swedish, at home in addition to English, with her British husband who understands mle as an economic equaliser in india and nepal 183 both. She uses her other mother tongue, Finnish, with all Finnish-speakers, including her daughters and grandson (unless there are people present who don’t understand Finnish). She uses English as her main working language (but writes daily in four languages), Danish with Danish neighbours and other Danish speakers, Norwegian in Norway, often with Saami in Norway for whom it is a second language, German with people in Germany who do not understand English (e.g. most Kurds). Sometimes she uses four “languages” in the same sentence at home, meaning the fluidity of boundaries (also between identities) is similar to Ajit’s. Of course we are also aware of Ellen Bialystoks’ research which shows that using several (or even two) languages daily may postpone Alzheimer’s with 5–6 years, a consolation at our age. But high levels of multilingualism are mainly necessary for all the other reasons that we have detailed in this article.

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ENGLISH AS PANDEMIC?

Robert Phillipson*

I am convinced that real progress in India can only be made through our own languages and not through a foreign language. I am anxious to prevent a new caste system being perpetuated in India – an English-knowing caste separated from the mass of our public. (…) I cannot conceive of English being the principal medium of education in India in the future. That medium has to be Hindi or some other regional language. Only then can we remain in touch with our masses and help in uniform growth. Jawarhalal Nehru, 1956, cited in Gopal 1980, p. 525 The more ecological space we leave for other species, the more economic space we leave for the marginalized sectors of society – peasants, women and children – and for future generations to meet their needs. Biodiversity is therefore not just an indicator of sustainability, it is also an indicator of justice. Vandana Shiva 2000, p. 127

These two distinctive voices from India articulate the need to pursue solutions that lead to greater political, social and ecological justice. Nehru expresses concern about the role of English in a modernizing state, and the need to counteract its hierarchical, hegemonic effects. Shiva does not connect biodiversity to the languages of the marginalized, but the dispossessed that she refers to function in ancestral languages. The expansion of English both within states and in international affairs raises crucial questions: does its use in a wide range of contexts entail harmful consequences for other languages and their speakers? Is the adoption of English (like other dominant languages) reinforcing the marginalization of minorities, the speakers of less powerful languages? English tends to be marketed and seen as a panacea, but to assume that its use serves all equally well is simply false. Should it rather be seen as a pandemic? The article analyses the factors that have led to the rise of English historically, its consolidation in regional alliances, and its prevalence in education. It presents the key features of linguistic imperialism and relates them to ongoing developments

* Copenhagen Business School; www.cbs.dk/staff/phillipson. 190 robert phillipson in several parts of the world. Some of these are reinforcing the dominance of English, others counteracting it. The empirical evidence for or against English can be analysed in any given context. Examples are given of how multilingual diversity can be strengthened when English is seen as neither a panacea nor a pandemic. Biodiversity, cultural and linguistic diversity are inter-connected, hence social justice is also a question of linguistic justice, including the right to maintain one’s language and learn in it (Skutnabb-Kangas 2000, Skutnabb- Kangas and Dunbar 2010). However, although politicians like Nehru demonstrate awareness of the risk of linguistic hierarchies being in conflict with social justice, they still tend to think only in terms of the “big” languages and to ignore minority languages. Linguistic hegemonies tend to be naturalized as acceptable and inevitable, but they need to be resisted and counteracted, just like other forms of social injustice. Multiple identity categories are the norm in the contemporary world, whether in academia, commerce, politics, entertainment, or leisure activities on the internet. People in many pre-industrial communities have fluid and multiple linguistic and social identities. Identity variables influence the individual’s socio-economic position, status, and lifestyle. The variables interlock with minoritization and hierarchization processes that structure society by means of class, gender, ethnicity (earlier ‘race’), caste, religion, and language. This is true in countries of both North and South. But perhaps English is a special case in the modern world? Surely there can’t be a problem in more people becoming proficient in English? An informed answer is: definitely not, but on one condition. Proficiency in English must constitute an expansion of the repertoire of the individual or the group for whom it is not the first language. However, this is by no means what always happens. The learning of English in education systems serves to increase the socio-economic advantages of some and to diminish them for others. For monolingual speakers of English, this is a question of the interlocking of class and language in education, processes that include some and exclude others. In most postcolonial countries in Asia and Africa, education through the medium of English serves the purpose of elite formation. It benefits the few and excludes the majority: while English opens doors for some, it closes them for many others.

The Historical Record

Many native speakers of English are unaware of the status advantages that they enjoy from the accident of their birth and primary linguistic english as pandemic? 191 socialisation. They are probably ignorant of the fact that the current predominance of English is in no way accidental. It relates to an attempt over 600 years to render the UK monolingual, to the export of a monolingual ideology to the Americas by the British, in parallel with their competitors, the French, Spaniards and Portuguese – and in tandem with the projec- tion elsewhere of certain languages as being God-given: Sanskrit in India, Arabic in the Islamic world, and Dutch in Boer South Africa. Text on the coins and dollar bills of the USA is a constant reminder that ‘In God we trust’. The worldwide pre-eminence of English was greatly facilitated by the British empire with the language accompanying the gospels of Mammon and Christianity. George Washington saw the United States as a “rising empire” (Roberts 2008, p. 68). There have been blueprints for USA control of North and South America since the Monroe Doctrine of 1823, and for global domina- tion for over a century. President Harry Truman was open about US goals in 1947: “The whole world should adopt the American system. The American system can survive in America only if it becomes a world system” (cited in Pieterse 2004, p. 131). “[G]lobal power is disproportionately wielded by a ruling class that remains tied to the national interests of the United States” (Smith 2003, p. xvi). The need for new markets due to capital over-accumulation has been a primary concern of US foreign policy. Finance is transferred seamlessly, with no controls since the 1970s. Neoconservative agendas have openly aimed at imposing American empire globally (www.americanempireproject.com, www.tomdispatch .com). There are continuous US military activities worldwide. The shock doctrines of CIA torture and neoliberal economics spread from the USA to Latin America, Asia, Africa, and Europe, with disastrous consequences for the majority of people in the countries affected (Klein 2008). The current financial, economic, military and environmental fiascos reveal the fragility and unsustainability of our contemporary world disorder. The colonisers of North America and India felt they had a divine right to promote their beliefs and language. By the mid-19th century English was being projected as A strong, a harmonious, a noble language… Before another century has gone by it will, at the present rate of increase, be spoken by hundreds of millions… That language is rapidly becoming the great medium of civilization, the language of law and literature to the Hindoo, of commerce to the African, of religion to the scattered islands of the Pacific. (Edwin Guest, 1838, quoted in Crowley 1989, pp. 71–72). In territories where Europeans settled, indigenous peoples experienced physical genocide, and survivors were subjected to westernised education 192 robert phillipson policies and linguicide: “we have room for but one language here, and that is the English language” (USA President Theodore Roosevelt, 1919). How English functions in any given context can be investigated empiri- cally. The forces behind “global” English can be identified, and the consequences for speakers from different language backgrounds documented. In both North and South countries there is iniquitous inequality between the social classes. Proficiency in English represents linguistic capital that can be converted into political and economic capital. The typical dilemma for a former colony such as Nigeria or Pakistan is between on the one hand considering English as a useful bond with the international community, and necessary for national unity internally, and on the other recognizing that English is a bridgehead serving Western commercial and political interests, and that these are serviced by a complicit local elite. The integration of the linguistic dimension with cultural and economic globalisation is revealingly explored in Naz Rassool’s Global issues in language, education and development (2007). The case study of Pakistan, written jointly with Sabiha Mansoor (ibid., pp. 218–241), which confirms Tariq Rahman’s analyses of language policies in Pakistan (1998), shows that the use of English as the sole medium of higher education (for only 2.63% of the population) ensures the cultural alienation of the elite from the rest of the population. “A narrow monolingual nationalism [a reference to Urdu, RP], an under-resourced educational system as well as unequal access to English as international lingua franca, therefore, is counter-productive to national growth.” (ibid., p. 240). The situation is comparable in many postcolonial states. Policies in such countries have been linked by a range of connecting threads with former colonial powers. There are many hidden agendas connecting Western interests with complicit military and political elites in South countries. For instance, the long-standing, covert support for Islamism in Pakistan as well as in Arab countries by British secret services is revealed in Secret affairs. Britain’s collusion with radical Islam (Curtis 2010). What Jawarhalal Nehru, the first Prime Minister of independent India, did not wish to see emerge, a new caste system based on language, now exists in India, Pakistan, Bangladesh, and many African countries. The linguistic imperialism of the colonial age morphed into neo-colonial relations that perpetuate linguistic hierarchies. Linguistic capital accumulation follows a similar logic to financial and economic capital accumulation through processes that require constant expansion and the concomitant dispossession of others. The mechanisms which have led to a consolidation of English linguistic imperialism and neoimperialism, their structures english as pandemic? 193 and ideologies, need identification if they are to be effectively resisted (Phillipson 2009, 131–138). Like all imperialisms, linguistic imperialism is contested. Relations between the USA and UK have always been close, in the financial, economic and military fields, facilitated by the cultural affinity of a common language. All Western European countries have been strongly influenced by economic, cultural and educational McDonaldization (Ritzer 2011) and USA-funded cultural cold war activities (Saunders 1999, Wagnleitner 1994). In recent decades a neoimperial world order which is largely constituted through English has been established. The policies followed by right-wing political leaders like Berlusconi of Italy, Sarkozy of France, and Fogh Rasmussen of Denmark (now Secretary-General of NATO) represented blind acceptance of US global leadership.

Assessing Ongoing Processes of Change

A central issue is whether the impact of corporate globalization means that English can be considered as having shifted from serving Anglo- American interests into a more equitable instrument of communication for a diversity of users. Or do US military dominance worldwide and the neoliberal economy constitute a new form of empire that consolidates a single imperial language? Such questions need answering in connection with intensive ongoing regional integration in trading bocks such as the European Union (EU), the Association of Southeast Asian Nations (ASEAN), and the African Union (AU). These conglomerates have very different language policies: the EU operates with 23 official languages; ASEAN functions exclusively in English; the AU uses English, French, Portuguese, and some Arabic. The language policies of these supranational bodies confirm that languages of European origin dominate worldwide. What the three organizations have in common is that the market forces behind English give it de facto a privileged position. This gives proficient users of English a strategic advantage, through converting linguistic capital into structural power. The widespread perceived need to acquire English converts into space on school time-tables and a demand for English learning products that the British and American English teaching businesses profit from. Frantic efforts are made worldwide, from Chile to China, from Catalonia to Korea, from Turkey to Thailand, to improve English learning. Since socio-economic foundations are laid in school and higher education, analysis of educational language policy, as well as of the funding 194 robert phillipson policies of the World Bank and of former colonial powers, including the USA, is particularly relevant for clarifying the issues. Language dominance interlocks with a structure of imperialism in culture, education, the media, communication, the economy, politics, and military activities, and can be seen as linguistic imperialism (Phillipson 1992, 2009) entailing the following: • in essence it is about exploitation, injustice, inequality, and hierarchy that privileges those able to use the dominant language • it is structural: more material resources and infrastructure are accorded to the dominant language than to others • it is ideological: beliefs, attitudes, and imagery glorify the dominant language, stigmatize others, and rationalise the linguistic hierarchy • the dominance is hegemonic, it is internalised and naturalised as being ‘normal’ • this entails unequal rights for speakers of different languages • language use is often subtractive, proficiency in the imperial language and in learning it in education involving its consolidation at the expense of other languages • it is a form of linguicism, a favouring of one language over others in ways that parallel societal structuring through racism, sexism and class: linguicism serves to privilege users of the standard forms of the dominant language, which represent convertible linguistic capital • there are constitutive push and pull factors, supply and demand mutually reinforcing each other • linguistic imperialism is invariably contested and resisted. There is empirical evidence of English functioning as a panacea for the few but as a pandemic for others in countless contexts. I will restrict myself to a few examples of current socio-economic imperatives that are impacting on the global linguistic mosaic. In former colonies, English as the language of elite formation means that some in Africa and Asia have native speaker competence. The younger generation generally has less competence in ancestral languages. English-medium schooling that neglects mother tongues has resulted in the emergence of Afro-Saxons, with the result that some children have no language in common with their grandparents. Identification with ancestral languages and cultures is eliminated. In many former British colonies local languages were used for initial literacy purposes. In recent decades the education systems of these countries have been dependent on World Bank funding, and have experienced in, for instance, Sri Lanka, “coercion by the World Bank and other english as pandemic? 195 interested parties (such as the USA) to regress to English Only education in a multilingual country” (Perera and Canagarajah, 2010, p. 116). Education is subordinated to policies for servicing the global economy, marginalizes local languages and needs, and is determined by Western interests. This dovetails with the repressive policies of those in power in Sri Lanka vis-à- vis the Tamil minority. Some former colonies are implementing education through the sole medium of English to the entire population. A consequence of this in Singapore is that more than half the population now use English as the home language. Ancestral languages, in particular several variants of Chinese and several Indian languages, are non-existent or peripheral in the education system. These languages are therefore not being passed on from one generation to the next except for limited domestic purposes. The high level proficiency in English that many in Singapore achieve is only acquired in other postcolonial contexts by a tiny elite, with children often in private rather than public education. If the current vogue for education to focus mainly on English in basic education is implemented, it is likely to lead to more children leaving education with few if any qualifications unless a major effort is made to improve the quality of education and to upgrade the qualifications of teachers. Educational shortcomings, which are widespread, are compounded by the reality of most children having no opportunity or need to use English outside school. English-medium education will then fail them (Coleman 2011). Neoimperial linguistic discourse can be seen in British Council advocacy for English to be learned ever earlier worldwide, preferably as a medium of instruction. The British Council spearheads a massive operation to strengthen the use of British teaching materials and pedagogical know- how worldwide, from the kindergarten upwards. Global English Language Teaching is of major significance for the British economy (worth £1.3 billion plus a further £10 billion in education-related exports, Graddol 2006). A monolingual, monocultural pedagogy and consumerist worldview are marketed as globally relevant. English is projected not as a school subject but as a universal “basic skill”. This rhetoric, along with other OECD man- tras like “lifelong learning”, obscures the political and economic agendas that underpin educational change. There are strong similarities between the rationale for privileging English in colonial education 180 years ago, initially in India, and current marketing of British expertise (Graddol 2010, critiqued in Phillipson 2011b). Language policy scholars from the UK and USA tend to argue that the expansion of English serves all equally well. The fraudulence of terra 196 robert phillipson nullius, the myth of Europeans having the right to settle in territory worldwide and exterminate the local inhabitants, is being replaced by an equally fraudulent myth of English as a lingua nullius, as though it is a language detached from its Anglo-American roots, an instrument that is unconnected to the corporate economic, financial, military, and media interests that account for its expansion (Phillipson 2011c). The retention of English-medium higher education in former colonies (e.g. India, Kenya, Nigeria) has intensified the gaps between haves and have-nots. Few resources have gone into strengthening local languages as languages of learning, research, and the dissemination of modern knowledge: “the World Bank does not seem to regard the linguistic Africanisation of the whole of primary education as an effort that is worth its consideration. Its publication on strategies for stabilising and revitalising universities, for example makes absolutely no mention of the place of language at this tertiary level of African education” (Mazrui 1997, 39). When an elite class (Nehru’s caste) functions entirely through English in their professional lives, those who are not proficient in the language are cut off from sharing in the knowledge generated in higher education. For instance, improving the agricultural knowledge of people working on the land needs to take place in local languages. Nothing in civil society integrates the English-knowing haves and the have-nots who function in local languages. Such societies are not democratic. English-medium international schools around the world have increased in number from around 1,700 in 2001 to 5,270 in 2009. The sector is “now worth $18bn worldwide and set to double in value by 2020’ with expansion mainly in India, the Middle East, and Asia” (Hoare 2009). “International” schools are also present in all major cities in Europe. The “international” baccalaureate is fundamentally monolingual, plus some foreign language learning. Graduates are likely to identify with the global economy and international mobility, and to have weak roots in their cultures and languages of origin. Universities from the US, UK and Australia have become increasingly dependent on fee-paying students from Asian countries. They have also established campuses in many parts of the world (China, Malaysia, the Middle East, etc.) where the content of education, and the medium of instruction and examination, is identical with what is dispensed in the English-speaking home country. This money-making venture is fundamentally neoimperial, and ignores cultural and linguistic diversity. Evidence is already accumulating that graduates from such universities are not well qualified for exercising their professionalism in locally appropriate ways or languages. english as pandemic? 197

After the implosion of state communism in the Soviet world, English was explicitly marketed by British foreign secretaries, along with US and UK funding, as a panacea in combination with the so-called free market and democratisation. The market penetration of Western commerce has strengthened a consumerist Western ideology. In education Western publishers are largely replacing local publishers, a dubious development in some central European countries with a strong tradition of successful foreign language learning. Increasingly in universities worldwide the “productivity” of academics and their promotion prospects are influenced by whether they publish in English rather than a national language. In effect bibliometric quantifica- tion is supplanting quality, restricting academic freedom, and creating a false hierarchy: material published in English is assumed to be qualita- tively better. The immense volume of scientific publication in English serves to consolidate a hierarchy of languages. Work in other languages is marginalized when publishers of handbooks demand the exclusion of references to non-English sources, even when an entry refers to a Latin American or Spanish author (Mendieta, Phillipson and Skutnabb-Kangas 2006). Spanish-speaking academics need to publish in English (Mar-Molinero 2010). Scientific truths increasingly only exist if they are published in English. The monopolising tendencies of values and scientific “truth” due to the dominance of English in scholarship parallels developments in corporate, cultural and military globalization. The many examples and contexts summarized here reveal something of how the project of establishing English as a “global” language is being consolidated through processes of linguistic imperialism, in tandem with commercial and political interests. They paint a vivid picture of how socio- economic participation suits the interests of the few. The pressures to conform to this project are such that the expansion of English often occurs at the expense of the right to local cultural and linguistic identity.

European Developments

Many of these hegemonic processes are also taking place in the the European Union institutions and in communication between the EU system and member states and citizens. The EU treats 23 official and working languages on a basis of equality for restricted written and spoken purposes. Legal documents are produced in parallel in all these languages, and interpretation is provided between all the languages at some 198 robert phillipson gatherings, and less comprehensive interpretation ad hoc. In the internal affairs of EU institutions there is a hierarchy of languages. English has now supplanted French as primus inter pares: this is clearly visible on the Commission website and in many of its functions. The management of multilingualism in supranational affairs and in the interaction between EU institutions and member states is complex (see Kjær and Adamo 2011, Phillipson 2011a), and the EU itself lacks convincing political legitimation (Kraus 2011). The EU is inconsistent in many of its language management practices. The interface between the EU system, member states, and citizens, is unclear and permeable, and leaves many language policy challenges exposed to market forces. Overall language policy has not been thoroughly investigated, in part because the issues are politically sensitive. Speakers of languages other than English are minoritized in terms of power, access, and influence. Insiders to the EU system are convinced that languages such as Danish, Dutch and Latvian are treated as second-class languages. The following set of examples demonstrates that many EU activities are in fact reinforcing English linguistic imperialism. The Bologna process of creating a single higher education and research area in Europe brings together the Ministers for Education of 47 European countries, and has formal links with the Council of Europe. The European Commission also influences the integration and reform of universities, and creates the impression on its website that it is the driving force behind the Bologna process. It funds studies that figure prominently at the bi-annual meeting of Ministers. The communiqués from these report on practicali- ties, the successes and failures of synchronization, but never refer to language policy. Implicitly this means that “internationalization” can be seen as equating with “English-medium higher education” (Phillipson 2006, de Wit 2011). Applications for EU research funding can be submitted in any official language, but in practice virtually everything is submitted in English of varying quality and impact. Scholars for whom English is not the primary professional language are marginalized de facto. The EU advocates a strengthening of language learning in education (mother tongue plus two foreign languages), but those responsible for EU work in this area are technocrats without the necessary professional expertise in language policy. Recommendations can be followed or ignored, and many of the EU’s own initiatives (its ‘Actions’) actually reinforce the hegemony of English. While EU policies are influential, member states share responsibility for the neglect of language policy issues. english as pandemic? 199

In continental Europe, the learning of foreign languages other than English – French, German, the Slavic languages and others – is on the retreat. Familiarity with foreign cultures is increasingly being filtered through English, which constrains diversity. The newcomer in school and at universities is Chinese, which represents a learning task of a very different kind. Whether Chinese linguistic imperialism, spearheaded by the mushrooming of Confucius Institutes in universities in the West, will emerge remains to be seen. Funding for European minority languages has been substantially reduced. Some regional minority languages have been awarded EU support, but this is now confined to languages that are official nationally (Irish) or regionally (Catalan, Welsh, etc.). The amounts involved are modest. What the EU’s language services do is to work in the 23 languages that have official status, with English now in place as the default language in many contexts.

Resistance

These glimpses of how multilingualism is managed within the EU system document that English is structurally and ideologically advantaged in many ways. These examples indicate that communication is often inequi- table and asymmetrical, and there is unequal investment in linguistic capital. Largely unquestioned ideologies, processes and structures serve to sustain and consolidate linguistic imperialism. It is also important to stress that I have nothing against anyone becoming maximally competent in English, far from it. This is logical given the global linguistic mosaic. The question is how this should be achieved, and in what sort of a balance with competence in other languages. This issue needs to be addressed at all levels of national education, in companies, in the media, in international organizations, and in the home. All of us who function multilingually in our domestic and professional lives know that it can be achieved when certain conditions are met. How one can counterbalance the pressures behind English will be exemplified at national, institutional, and inter-governmental levels. The governments of the Nordic countries have commissioned studies of how far an increased use of English is occurring at the expense of national languages. The evidence hitherto is that it is not, though there are risks. Nordic governments have promulgated a policy statement to which all five countries are committed, a Nordic Declaration of Language Policy 200 robert phillipson

(http://www.norden.org/da/publikationer/publikationer/2007-746). This aims to ensure that Nordic languages remain fully viable, that they function in parallel with English for certain purposes, that competence in other languages is promoted, that policies are evolved for achieving these goals, and that public awareness of language policy issues is raised. The document is published in Danish, English, Faeroese, Finnish, Greenlandic, Icelandic, Norwegian, Saami, and Swedish, and aims at strengthening all these languages. The rationale behind this strategy has been to ensure that English does not encroach on territory that has hitherto been occupied exclusively by national languages. It also aims at strengthening the use of the three Scandinavian languages in inter-Nordic activities. This has traditionally assumed use of a Scandinavian mother tongue and comprehension of the other two languages. It is surprising how few universities worldwide explicitly aim at their graduates being educated bi- or multilingually. The few that function bilingually – some in Europe, in Finland (Helsinki), Italy (Bolzano), Switzerland (Fribourg) and Luxembourg, some elsewhere, in Canada (Ottawa), South Africa (Stellenbosch) – have tended to offer a choice of languages rather than a combination, though this may be changing. In the Nordic countries, many university degrees are in effect bilingual (though not designated as such) in the sense that a lot of the course material is in English, whereas a national language remains the medium of instruction and examination. Since the reality is that virtually all countries worldwide are multilingual, and since bilingual education of various kinds is practised in schools in a number of countries, there is a strong case for university policies becoming more multilingual. For instance, a ‘European doctorate’ in addition to a national research degree is awarded on the strength of a PhD cycle entailing residence in two countries, and the use of at least two languages during the research and its evaluation. This is in force in several natural and social science collaborative schemes. This has the advantage of counteracting monolingualism in any form, and not least the monopolistic pressures behind English. Multilingualism at university level equips graduates for an internationalised world. Change towards multilingualism creates better conditions for minority languages, and the socio-economic prospects and identity of their speakers. The position of the Saami in the far north of Europe has changed dra- matically over the past 30 years. Even though the total number of Saami speakers is only 20,000, and there are ten variants of Saami, the language can be studied at seven universities in the Nordic countries. It is possible in some districts to have education through the medium of Saami at all english as pandemic? 201 levels from pre-school upwards. School education is bilingual or multilingual. The Saami University College conducts all teaching in Saami, with Nordic languages and English used for other purposes. The university conducts teaching and research that is locally connected and internationally oriented, with strong links to other indigenous institutions. The website is in Saami, Norwegian, and English. The Saami experience is of major relevance for demographically small languages that hitherto have been marginalized. Whereas such minorities were subjected to intensive assimilation pressure for long periods earlier, some governments have recognized that granting the right to education through the medium of the minority language is no threat to the status and viability of the main national language. English has a purely additive function in such contexts. Explicit language policies are increasingly being elaborated in universities in Finland and the Scandinavian countries for their various activities. For instance the University of Helsinki has a language policy published in two national languages (Finnish and Swedish) and in English that stresses the acquisition of a range of types of multilingual competence and provides an articulate rationale for doing so: http://www.helsinki.fi/inbrief/ strategy/HYn_kieliperiaatteet.pdf. This is a good instance of language policy issues being addressed constructively and responsibly by an institution, and raising awareness of the issues and challenges. Implementation should lead to strong commitment to both national languages and international languages, and to ensuring that English is used well, in ways that do not impact negatively on local cultural and linguistic needs. Greater European integration is leading to many EU citizens becoming multilingually competent, thanks to the education system, and to the use of several languages elsewhere. Laissez faire language policies run the risk of strengthening English at the expense of other languages, and confirming an implicit assumption that prestige functions necessarily take place in English. Passivity in this area could lead to an infection of a potentially pandemic type. Active policies are therefore needed to prevent this happening and to confirm the diversity of European linguistic identities. In a brief survey of the issues with concise exemplification, one inevitably has to make somewhat crude generalizations about processes and structures that reflect push and pull factors in neoimperialism and a diversity of adaptation processes that the term glocalization attempts to capture. Linguistic processes interlock with many other key features of contemporary developments. What we can conclude is that if we are to avoid the emergence of global linguistic apartheid, active language policy 202 robert phillipson measures to sustain diversity and increase social justice are needed. There are serious risks of the complexity of EU integration processes obscuring the fact that English should never be seen as a panacea, and that language policies need to be continuously monitored so as to ensure that English is not permitted to evolve in pandemic ways. The same applies a fortiori in postcolonial states in Africa and Asia. To conclude, English is not a panacea anywhere. The central tension in language policy in many parts of the world is between the maintenance of linguistic diversity and the pressures behind the dominance of English. How this tension will play out in future is unpredictable. English functions as a pandemic in countless contexts worldwide, but it need not do so and can be counteracted, as the above examples indicate (see also Skutnabb- Kangas and Phillipson 2010, Skutnabb-Kangas et al, eds., 2009). Ensuring the implementation of language rights and language duties (for instance in higher education and the corporate world) is an important contribution towards ensuring greater social justice. This applies to minority rights within a state and to national languages that risk marginalization in regional fora as well as in the home market unless measures to counterbalance the use of English are undertaken. Vandana Shiva (2008, p. 473) articulates a message of hope, inspired by grassroots efforts to ensure the perpetuation of diversity: Continuous globalizing efforts may threaten democracy, the vibrancy and diversity of life forms, and ecological well-being in general. However, the human spirit, inspired by justice and environmental protection, can never be fully repressed. Despite the brutal violence of globalization, we have hope because we build alternatives in partnership with nature and people.

References

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Robert Dunbar1

Much of the growing literature on the economic participation of minorities, and much of the attention of treaty bodies which are increasingly considering this issue, has been directed at barriers to participation of members of minorities in the economy and matters such as access to housing. This is both understandable and appropriate: economic and social exclusion constitutes a very serious barrier to the integration of minorities, it limits life chances of members of minorities, and as a result it is often the root cause of social instability and unrest. Exclusion is often due both to widespread acts of explicit discrimination and to more subtle but no less unacceptable forms of institutional discrimination and long term neglect. However, for some minorities, and particularly many autochthonous linguistic minorities, the question of economic participation raises a number of further and different complexities and challenges. In this paper, I shall be approaching this issue from the perspective of someone who works with some of the more threatened autochthonous minority linguistic and cultural communities in Europe, speakers of the Goidelic branch of the Celtic language family—Scottish Gaelic and Irish, in particular—and I shall use examples from the experience of these communities to illustrate these complexities. I do not suggest that this experience is necessarily representative of other autochthonous linguistic minorities of the sort protected by the European Charter for Regional or Minority Languages (the ‘Languages Charter’), although many of the themes dealt with in this paper will be familiar and of relevance to many other such language communities, and may well be relevant to a number of the so-called ‘new’ linguistic minorities who are concerned with maintenance of their language as a community language. The basic argument presented here is that our existing international instruments tend not to be particularly clear with regard to the impact of economic and broader

1 Senior Research Professor, Sabhal Mòr Ostaig/UHIMI. 206 robert dunbar social policy on the viability of minority langauge communities, and that relevant treaty bodies have generally not considered such impact to any considerable extent. However, there are provisions in several instruments that could be used to address these issues, and the treaty monitoring process could play a crucial part in doing so. It is essential, though, that the issues be brought to the attention of monitoring bodies created under the relevant instruments, and the minority language communities themselves have an important role in presenting information and arguments that will allow the monitoring bodies to deal with the questions which are thrown up at the interface between language policy on the one hand and socio-economic development policy on the other. Given the nature of the issues which will be raised, the discussion here is informed by the growing literature on language policy and planning, especially for minority languages, although many of the issues that will be raised here have been insufficiently explored in that literature, as well.2

Economic Integration and Minority Language Maintenance: Historical Trajectories

For many minority language communities in Europe, the forms that economic integration into the national—and international—economy have taken have generally had a negative impact on the vitality of their language, though it must also be noted that they have not necessarily had a negative impact on the material well-being of individual members of these speech communities. From a linguistic perspective, these forms of economic integration could be described as ‘subtractive’ integration, and

2 In 1996, an issue of the journal International Journal of the Sociology of Language (volume 121, number 1) was dedicated to issues relating to economic development and minority language communities. The Language and Politics Symposium on the Gaeltacht and Scotstacht, held annually from 2001 to 2010 at Queen’s University Belfast, a constituent project of the British Arts and Humanities Research Centre for Irish and Scottish Studies, has done much to promote discussion of the relationship between economic development and minority language policy, and the proceedings of the sixth annual symposium focused on these issues: see John M. Kirk and Dónall P. Ó Baoill, eds (2009), Language and Economic Development: Northern Ireland, the Republic of Ireland and Scotland, (Belfast: Cló Ollscoil na Banríona), which contained several important contributions. Another notable recent contribution is Douglas Chalmers and Mike Danson (2006), ‘Language and economic development—complementary or antagonistic’, in Wilson McLeod, ed., Revitalising Gaelic in Scotland: Policy, Planning and Public Discourse, (Edinburgh: Dunedin Academic Press), pp. 239–56. linguistically sensitive approaches to participation 207 the Goidelic languages provide a good example of how processes of economic integration have had negative linguistic impacts. Owing to a variety of historical forces, by the second half of the nineteenth century, the Irish and Gaelic speech communities had receded to areas of the rural hinterland, particularly on the western seaboard of Ireland and Scotland.3 These are often described as the ‘heartlands’ of these autochthonous languages.4 Similar patterns have emerged for other Celtic speech communities, including the Welsh speech community of Wales and the Breton speech community of Brittany,5 and these patterns have certainly been experienced by other European autochthonous language communities (as well as many minority, autochthonous and indigenous language communities elsewhere). Advances in communications technology, and especially rail and steamship transport, were increasingly integrating these regions into the national—and international—economy. The development of the modern administrative nation- state in nineteenth century United Kingdom, including the development in the 1870s of universal state-funded primary education, was generally accomplished exclusively through English, the de facto official language of the state. A number of patterns inimical to language maintenance were established during this period from which these districts have never fully emerged. Integration in a powerful and rapidly expanding capitalist economy during the industrial revolution bred increasing dependence in these

3 See, generally, Victor E. Durkacz (1983), The Decline of the Celtic languages : a Study of Linguistic and Cultural Conflict in Scotland, Wales and Ireland from the Reformation to the Twentieth Century, (Edinburgh: John Donald), and Martin J. Ball and Nicole Müller, eds. (2009), The Celtic Languages, 2nd ed., (Abingdon: Routledge), chapters 12 to 16. For Ireland, see Pádraig Ó Riagáin (1997), Language Policy and Social Reproduction: Ireland, 1893–1993, (Oxford: Clarendon), and John Walsh (2011), Contests and Contexts: The Irish Language and Ireland’s Socio-Economic Development, (Oxford: Peter Lang). For Scotland, see Charles W.J. Withers (1988), Gaelic Scotland: The Transformation of a Culture Region, (London: Routledge), and Charles W.J. Withers (1984), Gaelic in Scotland, 1698–1981: The Geographical History of a Language, (Edinburgh: John Donald). 4 In the terminology of the Languages Charter, these generally comprise part or all of the ‘territory of a regional or minority language’ (Art. 1, para. (b)): ‘The territory … where a regional or minority language is spoken to a significant extent, even if only by a minority, and which corresponds to its historical base’ (Explanatory Report to the Languages Charter (the ‘Explanatory Report’), para. 34). 5 For Welsh, see Geraint H. Jenkins, ed. (1998), Language and Community in the Nineteenth Century, (Caridff: University of Wales Press), Geraint H. Jenkins, ed. (2000), The Welsh Language and Its Social Domains, 1801–1911, (Cardiff: University of Wales Press), and John Aitchison and Harold Carter (2000), Language, Economy and Society: The Changing Fortunes of the Welsh Language in the Twentieth Century, (Cardiff: University of Wales Press). 208 robert dunbar rural areas on exports of a relatively small range of primary products: in the Gaelic-speaking Scottish Highlands, for example, these were cattle (used for the production of beef and leather), then later sheep (for the production of mutton and wool), to the harvesting of seaweed (for kelp production for use in the glass and fertiliser industries), to fishing. With increasing dependence on one or a few exports, each inevitable collapse of a market for such exports resulted in much greater hardship than would be the case in more diversified local economies. Such collapses tended to be even more devastating in the so-called ‘Celtic Fringe’ of Ireland and Scotland because of the persistence of essentially feudal land-ownership patterns: a tenantry, the product of feudalism, rather than a community of small-owners, was more easily removed, and had fewer incentives to stay.6 The process of outward migration and resulting depopulation was further facilitated from the late nineteenth century through state-supported acquisition by minority language speakers of the dominant language in the state school system. While the acquisition of the societally dominant language was important in ensuring that members of linguistic minorities could participate fully in society, the form which such acquisition took place itself had a negative impact on the retention of the minority language intergenerationally. For the Goidelic languages, the form chosen was particularly harmful to the languages: for at least two generations, the dominant language, English, was the sole medium of instruction in the classroom, and the minority language was largely excluded from the school. Unlike many contemporary minorities—and particular so-called ‘new’ minorities—Irish and Scottish Gaelic speakers faced relatively few obstacles to social and economic integration in the cities and towns to which they moved, and discrimination, though it existed, tended not to be long-term or particularly virulent.7 This ease of integration actually assisted relatively rapid language shift in urban settings. Not only was the language of instruction important; so was the content of the curriculum. Even today, primary and secondary education in the Scottish Gaelic

6 For the classic discussion of these processes, see James Hunter (2000), The Making of the Crofting Community, (Edinburgh: John Donald). 7 It must be remembered, though, that Irish-speakers were overwhelmingly Roman Catholics (as were many, though not all, Scottish Gaelic-speakers), and therefore did encounter prejudice on religious grounds. Also, in the nineteenth century in particular, negative stereotyping of speakers was commonplace (see, for example, Krisztina Fenyö (2000), Contempt, Sympathy and Romance : Lowland Perceptions of the Highlands and the Clearances During the Famine Years, 1845–1855, (East Linton: Tuckwell)), and the attitudes underlying such stereotyping have proved to be surprisingly persistent, and still occasion- ally emerge, for example, in the popular press in Scotland. linguistically sensitive approaches to participation 209

‘heartlands’ of the Western Isles is geared to equipping the best and bright- est students with skills that are of greatest use outside of the home communities, rather than those of local relevance. The curriculum is essentially the same as that found in the major urban areas, and little attention is given to local or regional history, to topics such as regional development (which could provide an impetus for young people to consider that alternative trajectories are available for them and their communities than the prevailing one of long-term marginalisation and decline), and to vocational and other forms of skills training that are of particular relevance to the local economy. Until the creation of the University of the Highlands and Islands in Scotland in 2011, students from the Gaelic ‘heartlands’ seeking a university education had to leave the region altogether, something that inevitably contributed to a ‘brain drain’. Of course, many of these forces are not unique to the minority language ‘heartlands’ considered here: the economic decline of traditional industries, the mechanisation of labour-intensive rural industries such as farming and fishing that have remained viable, the relative lack of tertiary level and university education locally, and consequent depopulation as a result of such processes, is a pattern that has been replicated throughout the developed world; it is the profound negative impact on the vitality of minroity languages that makes this particularly problematic where such processes take place in minority language communities. In the ‘heartlands’ themselves, population loss has been accompanied by creeping language shift.8 The transportation revolution not only eased movement of minority language speakers out of the ‘heartlands’; it eased penetration of the majority language in those areas. The public sector provided a beach-head: as noted, when state-supported public education came to the ‘Celtic Fringe’, it was through the medium of English, or, in Brittany, French; as the modern administrative state developed, state functionaries, particularly middle- and upper-level managers, administra- tors and other professionals tended to be unilingual majority language speakers. A clear linguistic hierarchy was established with the dominant language increasingly used for most higher linguistic domains and the minority language increasingly restricted to lower linguistic domains, such as in the home, with neighbours in the immediate community, and in other similar informal settings, but not in more formal and ‘prestigious’

8 Language shift is essentially the displacement of other languages—here, minority languages—by a more prestigious one in more and more domains (for ‘domains’, see footnote 9). 210 robert dunbar settings, particularly those involving agencies and actors with significant social standing and authority (such as the school).9 As parents increasingly chose not to pass on the minority language or as the young increasingly abandoned it—both as a result of prevailing linguistic hierarchies and ideologies that came with closer social, political and economic integration, the minority languages became increasingly unstable, even in lower domains. In a mixed linguistic setting in which more and more people were unilingual speakers of the dominant language, and in which virtually all speakers of the minority language were bilingual, and often had higher levels of competence in certain domains in the dominant language, language shift followed. In many ‘heartland’ areas, the phenomena of both population loss and language shift continue: the 2001 UK census, for example, showed both a significant loss of population and an even greater decline in numbers of Gaelic-speakers, especially amongst the young, in the Western Isles (or the Outer Hebrides, as the archipelago is known), the only remaining local government area in Scotland in which Gaelic-speakers make up a majority of the local population.10 These patterns are certainly not unique to Scottish Gaelic or to the Celtic languages more generally. From the 1950s, the Irish government, and from the 1960s, the UK government, has sought to respond to the economic crisis in these largely rural ‘heartland’ areas of the Irish (in Ireland, such areas are referred to as

9 The concept of ‘domains’ was originally developed by Joshua Fishman, who conceived of them as the social contexts in which language is used, as defined by three dimensions: the location in which discourse is taking place, the participants in the discourse, and the topic of the discourse. He identified the home, the church, the local neighbourhood, the school and the workplace as important domains, and he showed how language use can change in any particular domain where, for example, the participants change (e.g. the entry into the home of a non-speaker of the language of the home): see Joshua A. Fishman, Robert L. Cooper and Roxana Ma (1971), Bilingualism in the barrio, (Bloomington, In.: Research Center for the Language Sciences, Indiana University), and for a useful discussion of Fishman’s ideas, Bernard Spolsky (2004), Language Policy, (Cambridge: Cambridge University Press), chapter 4, pp. 39–56. The use of the dominant language in higher prestige social contexts, so-called H-domains, with the minority language restricted to lower prestige contexts, so-called L-domains, is a common characteristic of the minority language condition. 10 In 1981, there were 23,446 Gaelic speakers in the Western Isles, representing 76.3% of the local population, but by 2001, numbers of Gaelic speakers had fallen by almost 8,000, to 15,811, representing only 59.66% of the population. The percentage decline would have been sharper, except that the overall population of the Western Isles is declining quite sharply: between 1991 and 2001, there was a 10.5% loss in population, but a 19.6% decrease in the numbers of Gaelic speakers. See General Register Office for Scotland (2005), Cunntas- sluaigh na h-Alba 2001: aithisg Ghàidhlig / Scotland’s census 2001: Gaelic Report, (Edinburgh: General Register Office for Scotland). linguistically sensitive approaches to participation 211 the ‘Gaeltacht’) and of the Scottish Gaelic languages, through policy interventions that have been similar to those utilised in many other jurisdictions in which regional economic development policy has sought to respond to economic underdevelopment and resultant population loss. These have included subsidisation and other forms of protection for so-called rural industries (including agriculture and fisheries) and the provision of various incentives, including fiscal incentives, to attract investment in industry and, more recently, the service sector. The language policy rationale for such forms of economic intervention has been expressed in Ireland by the oft-quoted aphorism ‘no jobs, no people; no people, no Gaeltacht; no Gaeltacht, no language’.11 Usually, though, such initiatives have not considered the linguistic issues involved, and the con- verse of the aphorism—‘more jobs, more people; more people, a stronger Gaeltacht; a stonger Gaeltacht, a stronger language’—does not necessarily hold true, a point to which I shall return momentarily. The insufficient consideration of the linguistic effects of regional economic development policies, and the insufficient language planning that has gone into such socio-economic policy-making, has been evident even in Ireland— perhaps particularly in Ireland—where an economic development agency, Údarás na Gaeltachta, was set up to promote economic growth in the Gaeltacht. Part of the difficulties here has to do with administrative boundaries, which have not always coincided with those of the areas in which the minority language is strongest. In Ireland, the legally-defined borders of the Gaeltacht now include many districts in which Irish is not widely spoken.12 In Scotland, the relevant socio-economic development agency, Highlands and Islands Enterprise (HIE), is responsible for an area that would roughly have corresponded with the Gaelic-speaking area of Scotland in the eighteenth century, but because of the contraction of the language over the last two centuries, Gaelic is now spoken by less than 10% of the population of the area for which HIE is responsible, and the Gaelic ‘heartlands’ are now limited to its western periphery, with

11 Attributed to Mr. Tom O’Donnell, Minister for the Gaeltacht in the period 1973–5: see Pádraig Ó hAoláin (2011), ‘Sustaining Minority Language Communities: Yin and Yang Juncture for Irish!’, in John M. Kirk and Dónall P. Ó Baoill, eds., Sustaining Minority Language Communities: Northern Ireland, the Republic of Ireland, and Scotland, (Belfast: Cló Ollscoil na Banríona). 12 See, for example, Dónall Ó Riagáin (2011), ‘The Concept of Gaeltacht: Time to Revisit?’, in John M. Kirk and Dónall P. Ó Baoill, eds., Sustaining Minority Language Communities: Northern Ireland, the Republic of Ireland, and Scotland, (Belfast: Cló Ollscoil na Banríona). 212 robert dunbar percentages of speakers in most districts for which HIE is responsible, including in the highest growth areas, around the City of Inverness, being very small. In such circumstances, consideration of linguistic issues can be expected to be relatively more marginal in the overall promotional activities of the organisation. There has been considerable debate about the purely economic effects of the work of such agencies, particularly in diversifying local economies to reduce dependence on particular vulnerable sectors and in promoting growth, and in creating activity in the most vulnerable districts. However, serious questions have also been raised about the linguistic effects of such promotional activities, particularly in Ireland.13 For example, to the extent that employment has been created, it has often attracted non-Irish speakers into the Gaeltacht, something that, without appropriate language planning interventions to ensure better linguistic integration of such migrants, can adversely affect the linguistic balance in such areas. Even where such employment opportunities have drawn Irish speakers back to the heartlands, they have often married non- Irish-speaking spouses and have been raising children who often do not have the minority language. Furthermore, managerial level jobs have often been staffed by non-Irish speakers, something that limits the use of the minority langauge in the workplace (and, where Irish had previously or would otherwise be used, leads to a loss of use of Irish, at least to a certain extent, in such domains), and which reinforces patterns of English dominance.14 Finally, sometimes the industries themselves have relied on skills in the majority rather than the minority language: a good example is the English language call centres, where the employees speak English on the telephone throughout the working day, that were funded in 2004 by Údarás na Gaeltachta in two Gaeltacht areas;15 this is surely a perverse economic

13 See, for example, Pádraig Ó hAoláin (2009), ‘Economic Development through Language: The Gaeltacht Experience’, in in John M. Kirk and Dónall P. Ó Baoill, eds., Language and Economic Development: Northern Ireland, the Republic of Ireland, and Scotland, (Belfast: Cló Ollscoil na Banríona), and John Walsh (2006), ‘Language and Socio- economic Development: experiences from the Scottish Gàidhealtachd and the Irish Gaeltacht’, in Wilson McLeod, ed., Revitalising Gaelic in Scotland: Policy, Planning and Public Discourse, (Edinburgh: Dunedin Academic Press). 14 Ó hAoláin notes that, although the development agency itself carried out all its functions through Irish, and many permanent jobs in which Irish was an essential skill were created, ‘[t]he full potential of this emerging enhanced status of the language was, however, considerably diluted by the large number of English-speaking management, administrative and technical personnel recruited by grant-assisted enterprises throughout the Gaeltacht’: Ibid, p. 64. 15 See Walsh, supra, note 13, at 273. linguistically sensitive approaches to participation 213 development strategy for such areas, if another core policy goal of both the government and the funding agency itself is aimed at minority langauge maintenance and revitalisation.

Provisions of Relevance in International Instruments?

When we turn to relevant international instruments, it is not clear the extent to which they adequately address or even allow consideration of the delicate and rather complex issues involved. However, most of the major international instruments related to minority protection, including the Framework Convention for the Protection of National Minorities (the ‘Framework Convention’) and the Languages Charter, make reference to the concept of of cultural diversity and of cultural security, and to the extent that such concepts encompass linguistic diversity, which they surely do, given the many references in such instruments to language, then they should in principle be capable of interpretation, and should in practice be interpreted, in ways which facilitate the maintenance of cultural and therefore linguistic diversity and the provision of cultural and therefore linguistic security to minority language communities. If this is the case, then they should also allow consideration of the extent to which broader policy areas, including socio-economic development policy, contribute to the preservation and promotion of such linguistic diversity. Much, however, turns on how such general principles are translated into actual commitments, and therefore a consideration of relevant specific provisions in some of the more important international instruments is necessary.

Article 27 ICCPR It may be appropriate to begin with Article 27 of the International Covenant for Civil and Political Rights (the ‘ICCPR’), which, until the burst of minority standard-setting from the early 1990s, was the single most important treaty provision in relation to minorities in international law. At first glance, and from the perspective of this article, Article 27 does not appear to be particularly promising: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. And yet, in a series of views, the treaty body, the Human Rights Commit tee, has demonstrated the potential this provision has with regard to 214 robert dunbar scrutinising the impact of economic development policies and initiatives on minority communities. In communications dating back to Ominayak,16 and including the two Länsmann17 communications and Mahuika,18 the committee has indicated that where major economic development projects have the potential to threaten the economic viability of the minority communities affected, Article 27 is relevant: at very least, it requires the state to consult and to consider minority interests in the consideration of any such projects, and where they pose a serious threat, to change fundamentally or to cease such projects. In these cases, however, the Human Rights Committee was able to make such observations on the basis of the protection of the right of the minority groups concerned to their own culture, and on the determination that the economic activities of the minority that were being threatened had a strong cultural element to them. This developing jurisprudence, while important, is difficult to apply to most autochthonous linguistic minorities in Europe—and it is important to note that, in each case, the minority in question in these cases was an indigenous people—because while such minorities may, as in the case of the Celtic linguistic groups discussed earlier, be dependent on certain economic activities, seldom do those activities carry sufficient traditional cultural content to be covered by these developments in the Human Rights Committee’s jurisprudence. These cases do illustrate, however, the potential of existing treaty provisions which are, on their face, not obviously relevant to questions relating to the economic basis of minority groups to be applied in the protection of that economic basis.

The Right to Participation The right to participation, a right which is now generally found in relevant minority instruments, has a more obvious applicability than Article 27. Article 2, paragraph 2 of the 1992 UN General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (the ‘UNGA Minorities Declaration’)19 provides, for example,

16 Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication No. 167/1984, U.N. GAOR, 45th Sess. Supp. No. 40, vol. 2, at 1, U.N. Doc A/45/40, Annex 9(A) (1990). 17 Ilmari Länsmann v. Finland (Länsmann No. 1), Communication No. 511/1992, UN Doc. CCPR/C/52/D/511/1992, 26 October 1994, and Jouni Länsmann v. Finland ( Länsmann No. 2), Communication No. 671/1995, UN Doc. CCPR/C/58/D/671/1995, 30 October 1996. 18 Apirana Mahuika et al v. New Zealand, Communication No. 574/1993, U.N. Doc. CCPR/ C/70/D/547/1993 (2000), 20 October 2000. 19 A/RES/47/135, 18 December 1992. linguistically sensitive approaches to participation 215 that persons belonging to minorities ‘have the right to participate effectively in cultural, religious, social, economic and public life’, while Article 2, paragraph 3 provides that such persons ‘have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live … .’ Also relevant to this discussion is Article 4, paragraph 2, which provides that States ‘shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, … .’ (emphasis added). Crucially, Article 5, paragraph 1 provides that national policies and programmes ‘shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities’. These provisions, both separately and taken together, clearly create the scope for consideration of the impact of economic development on the maintenance of minority languages, and Article 4, paragraph 2, in particular, may imply the need to design socio-economic development strategies and initiatives in such a way as to be supportive of the maintenance of such languages. While the Declaration is also concerned with ensuring that individual members of minority communities are able to fully participate in the national economy—Article 4, paragraph 5, for example, provides that States ‘should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country’—even this provision can be interpreted as implying the need for economic development policies that are supportive of minority languages. For example, the Commentary of the Working Group on Minorities to the UNGA Minorites Declaration20 provides the following: Article 4.5 calls for the integration of everyone in the overall economic development of society as a whole, while ensuring that this integration takes place in ways which make it possible for persons belonging to minorities to preserve their own identity. The Commentary goes on to note, however, that ‘[t]he balancing act required by these two separate aims can be difficult’. With respect to the Framework Convention, Article 15, which also expresses a right to participation, is relevant; it provides that ‘[t]he Parties

20 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-seventh session, Working Group on Minorities, Eleventh session, 30 May-3 June 2005, E/CN.4/Sub.2/AC.5/2005/2, 4 April 2005. 216 robert dunbar shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them’ (emphasis added). Thusfar, the focus of the Advisory Committee in respect of economic participation of minorities has primarily been on the relative inequality in the enjoyment of economic benefits of members of minorities, and therefore on the creation of economic opportunities for members of minorities, as well as on addressing actual discrminatory practices against them. A recurrent problem is the lack of relevant statistics necessary to allow for an investigation of issues relating to economic participation of minorities in general and regionally-based differences in socio- economic conditions in particular.21 Still, the Advisory Committee has on several occasions found that certain minorities are found in regions where economic conditions are poor and unemployment rates are high, and have indicated the need for states to take measures to assist in the development of such disadvantaged regions; in doing so, the committee has also noted the importance of including the affected minorities in the prep- aration and the monitoring of implementation of such measures.22 This passage, from the third report of the Advisory Committee on Slovenia, is a particularly good example:

21 See, for example, Advisory Committee on the Framework Convention for the Protection of National Minorities Opinion on Norway, dated 12 September 2002, ACFC/ INF/OP/I(2003)003, para. 62; Opinion on Sweden, dated 25 August 2002, ACFC/INF/ OP/I(2003)006, para. 66. 22 See, for example: Second Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities on Bulgaria, adopted 18 March 2010, FCNM/II(2012)001, para. 198; Second Opinion on Croatia, adopted 1 October 2004, ACFC/ INF/OP/II(2004)002, paras. 150, 152; First Report on Estonia, para. 59; Opinion on Estonia, adopted on 14 September 2001, ACFC/INF/OP/I(2002)005, paras. 156–7, 160; Third Opinion on Estonia, adopted on 1 April, 2011, ACFC/OP/III(2011)004, para. 173; Opinion on Georgia, adopted on 19 March 2009, ACFC/OP/I(2009)001, paras. 157–8; Second Opinion on Lithuania, adopted on 28 February, 2008, ACFC/OP/II(2008)001, paras. 169, 171, 174; Third Opinion on Moldova, adopted on 26 June 2009, ACFC/OP/III(2009)003, paras. 153, 157; Opinion on Montenegro, adopted on 28 February 2008, ACFC/OP/I(2008)001, para. 106; Second Opinion on Russia, adopted on 11 May 2006, ACFC/OP/II(2006)004, para. 271; Opinion on Serbia and Montenegro, made public on 2 March 2004, ACFC/INF/ OP/I(2004)002, para. 113; Second Opinion on Serbia, adopted on 19 March 2009, ACFC/OP/ II(2009)001, para. 256–7, 259, 261; Third Opinion on the Slovak Republic, adopted on 28 May 2010, ACFC/OP/III(2010)004, paras. 173–4, 178; Second Opinion on Sweden, adopted on 8 November 2007, ACFC/OP/II(2007)006, para. 167; Opinion on Switzerland, dated 20 February 2003, ACFC/INF/OP/I(2003)007, para. 75; Second Opinion on Switzerland, adopted on 29 February 2008, ACFC/OP/II(2008)002, paras. 173–7; Opinion on Ukraine, dated 1 March 2002, ACFC/INF/OP/I(2002)010, para. 73; Second Opinion on Ukraine, adopted on 30 May 2008, ACFC/OP/II(2008)004, paras. 223–4, 227; and, the Second Opinion on Kosovo, adopted on 5 November 2009, ACFC/OP/II(2009)004, para. 261. linguistically sensitive approaches to participation 217

The Advisory Committee encourages the authorities to take fully into account the needs and concerns of persons belonging to national minorities when designing and implementing regional economic plans covering “ethnically-mixed areas”. They should also consider, in consultation with national minority representatives, possible incentives for young persons belonging to national minorities to stay in these regions and work for minority institutions.23 However, the Advisory Committee has not yet addressed, nor apparently has had occasion to address, the role of economic development in sustaining the linguistic identity of minority communities themselves, including such communities in the ‘heartlands’ of the minority language. In its 2008 Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life, and in Public Affairs,24 the Advisory Committee specifically addressed the participation of persons belonging to national minorities in socio-economic life in depressed regions, and in doing so, recognised that such areas often suffered from economic marginalisation. For example, the Committee noted that Persons belonging to national minorities often live in border areas and other regions at a distance from political and economic centres of activity. Hence they can be confronted with more difficult socio-economic situations than the majority population.25 They also noted that State Parties … should take specific measures to increase the opportunities for persons belonging to minorities living in peripheral and/or economically depressed areas, such as rural, isolated and border areas, war-damaged areas or regions affected by deindustrialisation, to participate in socio-economic life.26 They were not, however, particularly clear as to what those measures should be. Crucially, in the context of the discussion here, they did not address the question of whether the impact of such measures should be designed in such a manner as to ensure that the creation of economic activity and employment is done in a way that is consistent with the

23 Advisory Committee on the Framework Convention for the Protection of National Minorities, Third Opinion on Slovenia, adopted on 31 March 2011, ACFC/OP/III(2011)003, para. 136. 24 ACFC/31DOC(2008)001, 5 May 2008, adopted 27 February 2008. 25 Ibid, para. 42. 26 Ibid. 218 robert dunbar maintenance of the minority language and culture. Similarly, they noted the following: State Parties should ensure that economic rehabilitation programmes and regional development initiatives targeting depressed regions, including some inner city areas, are designed and implemented in a manner that also provides benefits to those in need among persons belonging to national minorities who live in such regions.27 Once again, however, they did not make reference to the importance of considering the linguistic and cultural impact of such programmes and initiatives on the national minorities in question. This does not mean, however, that Article 15 is not capable of being interpreted in a manner that will take into account the impact of measures aimed at promoting economic development and economic participation more generally on the vitality of the languages of national minorities. The onus here is probably on national minorities themselves, as well as on relevant NGOs which are typically involved in the monitoring process, to bring such matters to the attention of the Advisory Committee in their shadow reports in response to state reports under the Framework Convention.

Other Provisions of Relevance in the Framework Convention Another provision of the Framework Convention which is of relevance to these questions is Article 5, paragraph 1, which provides that ‘[the] Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’, a provision which is very similar to Article 4, paragraph 2 of the UNGA Minorities Declaration. Thusfar, the Advisory Committee has had occasion to refer to this provision in relation to economic development projects which may have an adverse impact on the cultural identity of a minority as a minority itself, and in this sense, the application of this principle by the Advisory Committee is in some respects reminiscent of the views of the Human Rights Committee in relation to the application of Article 27 of the ICCPR. In its initial report on Germany,28 the Advisory Committee commented on the relocation of certain villages in areas traditionally inhabited by ethnic Sorbs in order to

27 Ibid, para. 44. 28 Advisory Committee Opinion on Germany, ACFC/INF/OP/I (2002)08, 1 March 2002. linguistically sensitive approaches to participation 219 allow for mining activities to take place.29 The committee found that the resettlement and dispersal of the Sorb population which ensued ‘made it more difficult to preserve their traditional identity, and social pressure in favour of their assimilation increased’.30 In respect of the resettlement of one particular village, about one third of the population of which was Sorb, the committee made the following comments: The Advisory Committee recalls that Article 5 of the Framework Convention requires the Parties to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity. As the forced dissolution of municipalities in which members of national minorities traditionally reside is undeniably likely to make the preservation of their identity more difficult, it is essential, for such an action to be compatible with Article 5 of the Framework Convention, that it is taken only as a last resort, when there is no alternative. In the case of the municipality of Horno, where all the legal channels – national and international – have been exhausted, the Advisory Committee considers it to be indispensable that the German authorities make sure that the Sorbian inhabitants concerned can continue to enjoy the rights and facilities they have enjoyed thus far in the cultural and linguistic field. It is also essential that the Sorbian character and culture is clearly visible in the municipality of Forst where the majority of the inhabitants will be resettled. In order to avoid such situations in the future, the Advisory Committee expects that the German authorities will pay due heed to Article 5 of the Framework Convention when weighing any public interest against the legitimate aspirations of the Sorbian people to maintain their culture and preserve their identity.31 In its second report on Germany, the committee addressed this issue again, noting: The German authorities should, in cases where it is found necessary to pursue a public interest to relocate villages in this region, take due account of the interests of the Sorbian population, its right to maintain and develop its language, culture and identity and to preserve certain institutions such as schools developing Witaj projects. The authorities should also ensure that the concerned Sorbian population be fully integrated in the process of deci- sionmaking on possible further relocations.32

29 Interestingly, and perhaps significantly, the situation considered here had given rise to unsuccessful litigation under the European Convention on Human Rights, before the European Court of Human Rights: Noack and Others v. Germany (46346/99) (2000) EHRR, 4th Section. 30 Ibid, para. 29. 31 Ibid, para. 32. 32 Advisory Committee Second Opinion on Germany, ACFC/OP(II)(2006)001, 1 March 2006, para. 63. The issue was revisited in its third opinion: Advisory Committee Third Opinion on Germany, ACFC/OP/III(2010)003, 6 December 2010, paras. 81–4. 220 robert dunbar

The Advisory Committee has taken a similar approach with respect to the question of the protection of Sami land rights, particularly in the context of the importance of land and the traditional activities which it supports, such as reindeer herding, hunting and fishing, to Sami culture and identity.33 These Advisory Committee comments therefore indicate the general importance of considering the potential negative impact of economic development projects, even ones with the potential of creating economic activity and employment in relatively depressed regions, on the culture, identity—and by implication, the linguistic vitality—of minorities. Furthermore, surely the reference in Article 5, paragraph 1 to ‘conditions necessary’ for the maintenance and development of minorities and, in particular, the reference to ‘language’, would allow for broader consideration of the way in which the economic basis of those communities, particularly in ‘heartland’ areas, might be promoted in a manner which is consistent with the maintenance and, indeed, the promotion of the vitality of the minority language. Once again, what is clearly required in order to move things forward is, first, for representative organisations of the language communities involved to bring forward relevant information and arguments which make clear how these provisions could be applied pro- actively, in order to equip the treaty body with the necessary ammunition to make observations of relevance. While it is by no means certain that the Advisory Committee would necessarily follow such a lead, they have, as we have seen, been aware of the need for measures to support economically vulnerable regions and have demonstrated an awareness of the need to consider issues relating to cultural and linguistic maintenance in their supervisory role.

The Languages Charter Finally, reference must be made to the Languages Charter, which, unsurprisingly, given that the raison d’ etre of the charter is the protection and promotion of regional or minority languages, also has provisions of obvious relevance to the issues considered here. Certainly, the interest of the treaty body, the Committee of Experts, in the viability of language communities in ‘heartland’ communities is relatively clear. Take, for example,

33 See, for example, Advisory Committee Opinion on Finland, ACFC/INF/OP/I (2001)002, 22 September 2000, para. 22. linguistically sensitive approaches to participation 221 this observation in its evaluation of the United Kingdom’s initial Periodical Report: Representatives of Welsh speakers expressed their concern to the Committee of Experts at the underlying trend of decline in usage of the Welsh language in traditional communities (which they attributed to economic deteriora- tion, and the inability of local people to afford houses in these areas) and the fear that gains made elsewhere in sustaining Welsh as a living language might not offset this decline adequately.34 Of particular importance in the context of this discussion are provisions contained in Article 7, in Part II of the Languages Charter, which sets out broad objectives and principles on which the state parties’ ‘policies, legislation and practice’ should be based, and which, unlike the more detailed provisions of Part III of the charter, apply in respect of all of the State’s regional or minority languages. Article 7, paragraph 1 b, for example, makes reference to the obligation of states parties to respect ‘the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of the regional or minority language’. Where administrative boundaries of relevant regional economic development agencies, for example, do not coincide with those of the linguistic heartlands—as we have seen, this can be problematic in terms of the economic development programmes concerned and the integration of linguistic considerations in the planning process—this potential problem could be addressed under Article 7, paragraph 1 b. The Committee of Experts, the relevant treaty body created to monitor implementation of the treaty, has in the context of this paragraph noted the need for broader economic development policy (and other public policy) decisions to include consideration of the effects of such decisions. In its initial report on Germany, for example, the committee noted that the dissolution of an administrative division of a municipality in which the Sorbian language had a strong presence, to allow lignite mining to occur, seemed to indicate that respect for the geographical area of the minority language takes a secondary place to other interests. It noted that ‘appropriate and stong measures’ should be taken to compensate for the adverse impact on the Sorbian language which resulted from such changes, and it emphasised the importance

34 Report of the Committee of Experts on the Charter on the Application of the Charter in the United Kingdom, ECRML (2004) 1, 24 March 2004, para. 18. 222 robert dunbar of ensuring that adequate provision is made in decisions such as this for including consideration of the interests of regional and minority languages and their communities of speakers in economic decision making.35 Article 7, paragraph 1 c, which requires states parties to recognise ‘the need for resolute action to promote regional or minority languages in order to safeguard them’, is once again of obvious potential, if sufficient information and good arguments are laid before the treaty body, and that body, the Committee of Experts, has here, too, shown its willingness to consider the impact of broader policy areas on language maintenance. In its fourth report on Switzerland, for example, the committee considered the Yenish language, a language spoken by travelling people. Evidence provided to the committee indicated that the use of the language was linked to the traditional nomadic way of life of the Yenish people, which requires the ability for groups of speakers to assemble at stopover facilities. The committee noted that such facilities were not provided in some cantons, in spite of the fact that they ‘represented the most important precondition for the maintenance and transmission of Yenish’. As a result, the committee encouraged the authorities to consider the provision of such facilites and to come to ‘flexible solutions’ to the problem.36 Another provision of obvious potential relevance to the issues considered here is Article 13, in Part III of the Languages Charter, on ‘Economic and Social Life’; unlike Article 7, however, the provisions of Article 13 only apply in respect of those regional or minority languages designated by the State Party for Part III’s protection, and then only to the extent that the State Party has actually chosen to apply the particular paragraph or subparagraph of relevance in Article 13 to any particular regional or minoriy language. However, article 13, subparagraph 2 b is clearly relevant to this discussion: With regard to economic and social activities, the Parties undertake, in so far as the public authorities are competent, within the territory in which the

35 Report of the Committee of Experts on the Charter on the Application of the Charter in Germany, ECRML (2002) 1, 4 December, 2002, para. 54. In the box recommendation which followed these comments, the committee strongly encouraged the authorities ‘to take all appropriate measures aimed at remedying the adverse effects on the Lower Sorbian language’, and the comments were echoed, and a similar box recommendation was made, in its second report on Germany: Report of the Committee of Experts of the Charter on the Application of the Charter in Germany, 2nd monitoring cycle, ECRML (2006) 1, 1 March 2006, at para. 23, and following. 36 Report of the Committee of Experts on the Charter on the Application of the Charter in Switzerland, 4th monitoring cycle, ECRML (2010) 8, 8 December 2010, paras. 19–20. linguistically sensitive approaches to participation 223

regional or minority languages are used, and as far as reasonably possible: … b. in the economic and social sectors directly under their control (the public sector), to organise activities to promote the use of regional or minority languages. Although this provision is explicitly limited to the public sector, its application would presumably extend to regional socio-economic development agencies such as Údarás na Gaetachta and HIE, and such bodies, through their grant-making and other powers, have the capacity to have an impact on the nature of economic development activities in the private sector and on the integration of linguistic considerations and objectives in broader socio-economic development policy. The potential of this provision in this respect is evident in the Committee of Experts’ evaluation of the UK’s initial report, in which it commended the authorities for their support for ‘a number of interesting activities being undertaken in Wales to fulfil this undertaking’, including the Wales Tourist Board’s Cultural Tourism Strategy, the Welsh Development Agency’s ‘Taste of Wales’ project, ‘where the use of Welsh is encouraged as part of a broader economic objective, the Welsh Language Board’s awards scheme for bilingual design, and a range of local organisations, supported by the Welsh Assembly Government, which undertake to promote the use of Welsh in economic and social life.37 In its findings on the UK in this report, the Committee of Experts made the following statement: Certain measures to strengthen the position of Welsh in the sphere of economic activity have been taken by the authorities in Wales through the Welsh Language Board and other agencies and initiatives. On a smaller scale, similar activities are being initiated in relation to Irish. Given the fundamental importance of a sustainable economy to the survival of minority language communities, these measures are welcome first steps. (emphasis added)38 Here, the recognition of the importance of securing the economic basis of minority language communities has effectively been matched by a recognition of the necessity that relevant economic development initiatives are sensitive to sociolinguistic considerations and language policy goals. Article 13, subparagraph 1 c also has potential with respect to the issues under consideration here. It provides that States Parties must, ‘within the whole country’, undertake ‘to oppose practices designed to discourage

37 Supra, note 34, para. 188. 38 Ibid, Finding K. 224 robert dunbar the use of regional or minority languages in connection with economic activities’. In its initial report on Serbia, for example, the Committee of Experts welcomed, under the auspices of this provision, campaigns to promote multilingualism in the private sector: … the Committee of Experts has been informed that the provincial authorities of Vojvodina have launched the project “Return to good business practices – reviving multilingualism” which establishes criteria with regard to private inscriptions and information in regional or minority languages. Successful companies receive an award. The Committee of Experts com- mends the provincial authorities for this initiative.39 Furthermore, subparagraph 1 d provides that States Parties must, again ‘within the whole country’, undertake ‘to facilitate and/or encourage the use of regional or minority languages by means other than those [rather particular and limited means] specified in … [other] subparagraphs [in paragraph 1]’. The Committee of Experts has repeatedly noted that this provision is very broad and non-specific, but requires positive measures to be taken, and anticipates the creative use of incentives and other measures to promote greater use of minority languages in the public, private and voluntary sectors, in one report, they noted that the measures envisaged could be to facilitate and/or encourage the use of regional or minority languages on buildings, the oral use of the language in public areas such as railway stations or airports, the use of bilingual brochures in tourism, providing rewards to companies that are actually using the regional or minority language, initiating campaings in support of bilingualism, and so forth.40 Although the integration of language planning into socio-economic development policy is not explicitly referred to, the provision clearly has the scope to promote a consideration of such integration. A good example of how the Committee of Experts has considered this provision can be seen in a number of observations it made in its monitoring of the initial periodic report of Slovenia.41 It noted that in the Prekmurje region of the country, one in which there is a significant Hungarian speaking population, the weak economic situation was being used as a reason for not promoting more vigorously in the private and voluntary sectors the greater

39 Report of the Committee of Experts on the Charter, Application of the Charter in Serbia, ECRML (2009) 2, 6 May 2009, para. 292. 40 Report of the Committee of Experts on the Charter, Application of the Charter in Armenia, Initial monitoring cycle, ECRML (2006) 2, 14 June 2006, para. 150. 41 Report of the Committee of Experts on the Application of the Charter in Slovenia, ECRML (2004) 3, 9 June 2004. linguistically sensitive approaches to participation 225 use of Hungarian as well as Slovenian. The Committee of Experts made the following comments: The Committee of Experts is fully aware of the difficulties of pursuing a policy of bilingualism in the private sector, given the specific social and economic context affecting the Prekmurje region. The Committee of Experts has also a certain understanding of the argument, put forward once again by some of the mayors concerned, according to which it is preferable to resort to persuasion through recommendations, rather than to coercion, which would run the risk of discouraging the much needed investments in the region. However, the Committee of Experts considers that more needs to be done and encourages the Slovenian authorities to take their approach towards effectiveness a step further by considering how to introduce incentives for private firms or organisations which would encourage them more strongly to implement bilingualism. In the difficult context of the Prekmurje region, municipalities could of course be supported by the state in this respect.42 Following these comments, the Committee of Experts made a ‘box’ recommendation encouraging the authorities to introduce incentives for private firms and organisations to implement bilingualism and to provide appropriate assistance to the municipalities concerned.43 In its findings in the initial report on Slovenia, the Committee of Experts picked up on these points and further developed its observations: However, the Hungarian language is spoken in an area, the Prekmurje region, which is affected by a difficult economic context, by a high rate of unemployment and subsequent migration, especially of young people, to other parts of the country as well as by a notable decrease in the birth rate. In the long term, the persistence of such a situation could negatively affect the position and the protection of the Hungarian language as well. In this context, the Committee of Experts sees the strengthening of bilingualism and of transfrontier co-operation in this area as having a real potential also from an economic point of view (see especially paras. 155–159 above). In particular, efforts should be made to encourage a greater presence of the Hungarian language in economic life. Forms of concrete incentives could be considered in this regard and the Slovenian authorities are encouraged to support the local authorities where appropriate.44 As these passages indicate, there is, already significant potential within the Languages Charter for issues of the sort that have been raised in this discussion to be addressed, and the treaty body, the Committee of Experts,

42 Ibid, paragraph 157. 43 Ibid, after paragraph 159. 44 Ibid, Finding F. 226 robert dunbar has shown that it has the understanding of the policy issues and the willingness to do so. In this respect, the Committee of Experts is providing an example to other treaty bodies, and in particular the Advisory Committee on the Framework Convention, on what is possible with respect to the issues considered in this article. Once again, though, in order for the Committee of Experts, like other treaty bodies, to continue to develop the potential of the Charter to promote linguistically sensitive and supportive approaches to socio-economic development, it is essential that it receives both the necessary data and other information, and the fact- based arguments, through the Charter monitoring process that are necessary in order to allow them to address these issues, and in this, minority language communities themselves have a crucial role to play.

Conclusions

Socio-economic development is undoubtedly essential to many ‘heartland’ minority language communities—certainly, it is, as has been seen, essential to such communities in the Irish and Scottish Gaelic context; however, such development must be sensitive to linguistic considerations, it must be holistic, and it must be guided by sociolinguistic considerations and language policy goals as well as purely socio-economic ones. Relevant international standards do have the potential to allow such approaches to take place; indeed, certain of these standards may actually require such approaches to take place. Thusfar, treaty bodies have shown some sensitivity to the issues that have been explored here, and there is already in the emerging ‘jurisprudence’ of several of these bodies, and particularly that of the Advisory Committee of the Framework Convention and the Committee of Experts of the Languages Charter, the basis for further development of principles of relevance. It is likely that the main barrier to further development of the jurisprudence is informational rather than attitudinal. In particular, the treaty bodies often do not have sufficient relevant data—demographic data, sociolinguistic data, and economic data— to assess the issues involved in a consideration of the issues explored in this paper. To a very considerable extent, the treaty bodies are dependent on state parties themselves, in their periodical reports, and on relevant NGOs and representatitve organisations of the linguistic communities in their ‘shadow reports’ and other submissions, for both the relevant data and arguments which set out the issues involved. Further development of the ‘jurisprudence’ will therefore depend to a considerable extent on NGOs and the linguistic communities themselves. PART THREE

RELIGIOUS MINORITIES, SOCIO-ECONOMIC PARTICIPATION AND IDENTITY

A CRITICAL APPRAISAL OF THE MARGIN OF APPRECIATION LEFT TO STATES PERTAINING TO “CHURCH–STATE RELATIONS” UNDER THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS*

Kristin Henrard

Introduction

When talking about religious diversity, and state obligations concerning religious diversity, what comes immediately to mind is freedom of religion and the related state obligations. In Europe the most central reference point concerning fundamental rights is undoubtedly the European Convention on Human Rights (ECHR) and the related jurisprudence of the European Court of Human Rights (hereafter ECtHR or the (European) Court). The Court is one of the most prominent international courts dedicated to the protection of human rights. Its reputation is even such that it is also referred to by national courts outside the remit of the Council of Europe, the South African Constitutional Court being a prominent example.1 Notwithstanding this status, one regularly finds critical assessments of particular judgments of the Court and also articles that express more fundamental concerns about some of its jurisprudential lines, one of which pertains to the margin of appreciation that is granted to states.2 The jurisprudence of the European Court on the freedom of religion may not be very extensive, but it is characterized by a very well-known and steady line of jurisprudence following which states tend to be granted a wide margin of appreciation concerning questions of church–state relations. This wide margin of appreciation would be in order when no

* Reprinted by permission of the Publishers from ‘A critical appraisal of the margin of appreciation left to states pertaining to ‘church-state relations’ under the jurisprudence of the European Court of Human Rights’, in A Test of Faith? eds. Katayoun Alidadi, Marie- Claire Foblets and Jogchum Vrielink (Farnham: Ashgate, 2012), pp. 59–86. Copyright © 2012. 1 See also R.K.M. Smith, Textbook on International Human Rights (OUP 2009), 93. 2 Inter alia G. Letsas, “Two Concepts of the Margin of Appreciation,” 26 Oxford Journal of Legal Studies 705 (2006); R. St. J. Macdonald, “The Margin of Appreciation,” in The European System for the Protection of Human Rights (R. St. J. Macdonald et al., eds, Martinus Neihoff Publishers 1993); O. Gross and F. Ni Aolain, “From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the ECHR,” 23 Human Rights Quarterly 625 (2001). 230 kristin henrard common European standard can be detected in the matter. Indeed, when comparing the Member States of the Council of Europe in this regard a great diversity in systems emerges. While the Court immediately adds that this margin goes hand in hand with European supervision, the question then is whether this supervision is “adequate.” As it relates to religious diversity in the workplace, the question becomes how the Court’s supervision plays out for the protection of religious diversity (in the workplace). This chapter starts with an identification and appraisal of problems with the margin of appreciation doctrine in general. Subsequently, the particular problems with the margin of appreciation doctrine as applied to church–state relations will be focused upon. Thirdly, further zooming in, the special position of secularism and the protection of secularism as a legitimate aim of restrictions to the freedom to manifest one’s religion will be highlighted. Fourthly, a connection will be made with duties of reasonable accommodation on grounds of religion in terms of the prohibition of discrimination (and the lack thereof in the jurisprudence of the Court so far). Finally, an appraisal will be made of potential future developments or hope for the future in this respect.

I. Problems with the Margin of Appreciation Doctrine in General as Conceptualized (and Used) by the European Court of Human Rights

Prior to setting out the different tensions surrounding the margin of appreciation doctrine, it is essential to clarify the meaning of this doctrine, and what it refers to.

a. State Discretion and Margin of Appreciation There are several ways in which states are entitled to some discretion pertaining to the way in which they fulfill their human rights obligations3 in addition to under the ECHR. First of all, human rights obligations of states can be considered as obligations of results. A particular result needs to be achieved, but there is a choice of means.4 There are often a variety of ways in which particular human rights obligations can be satisfied, especially when it concerns positive state obligations. The negative obligations of

3 See also J. Rivers, “Proportionality and Variable Intensity Review,” 65 Cambridge Law Journal 174 (2006), 191–201. 4 This can be compared with the state obligations concerning EU directives. church–state relations under the echr 231 non-interference, that used to be focused upon in terms of the ECHR and other civil and political rights conventions, seem to be rather straightfor- ward in the sense that there is only one way to deal with this: not to interfere or not to undertake particular actions. Still, over time the European Court has steadily expanded the range of positive state obligations incumbent on state parties to the ECHR. There exists a rather extensive jurisprudence underscoring the vital importance of positive obligations in order to achieve an effective protection of the fundamental rights concerned.5 The focus is then on the effective protection of fundamental rights, and it is readily understandable that the ways of fulfilling these positive obligations do not need to be identical in all countries. Secondly, human rights are generally considered to impose a bottom line, a minimum threshold. States cannot sink below this minimum, but various degrees or levels of compliance can be envisaged, including some that are rather minimal in approach. In other words, human rights do not require states to adopt the highest level of protection, as long as what they do is “good enough.”6 While these two “forms” of state discretion pertaining to human rights obligations seem entirely acceptable, that is less evidently the case for the third form of discretion, more particularly the margin of appreciation doctrine of the Court. Following this doctrine, the Court leaves states some discretion in determining whether a particular limitation of a human right amounts to either a legitimate and thus proportionate limitation or to a violation of the human right concerned. Most human rights are not absolute and states are allowed to limit the enjoyment of these rights under certain conditions. When these conditions are met, the limitation is “legitimate” and does not amount to a violation of the right concerned. While in principle in the ECHR one has to have regard for the limitation clause of the particular right concerned,7 a certain “system” emerges across the limitation clauses:8 in addition to

5 Inter alia A.R. Mowbrai, The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing 2004). 6 Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the European Court of Human Rights (Intersentia 2002), 237; P. Mahoney, “Marvelous Richness of Diversity or Invidious Cultural Relativism?” 19 Human Rights Law Journal 1 (1998), 3. 7 Some national and international human rights documents/instruments work with a general limitation clause instead: inter alia the Universal Declaration of Human Rights (article 29, 2) and the South African Bill of Rights (section 36). 8 By the way, although in principle only applying to negative obligations arising from those rights which contain limitation clauses, the doctrine of legitimate limitations has 232 kristin henrard a certain base in national law for the limitation, the latter also needs to be proportionate to a particular legitimate aim. The proportionality requirement9 tends to be the one that receives most attention, the one that plays the most prevalent role in the evaluation of the legitimacy of the limitation. The margin of appreciation doctrine is “attached” as it were to that requirement. In other words, states are granted a certain level of discretion to determine whether or not a particular limitation is proportionate to the legitimate aim invoked.10 Importantly, this margin of appreciation is used for both negative and positive state obligations. In terms of the negative state obligations the question is whether the state has gone too far; while for positive state obligations the question is whether the state has done enough. In view of the above statement about different legitimate ways of fulfilling one’s positive state obligations, it will not come as a surprise that the ECtHR tends to leave states a wide(r) margin concerning positive state obligations.11 This doctrine of the margin of appreciation is related to the supposed fact that national authorities are better placed to make the proportiona lity assessment because of their exposure to and “knowledge of local particularities.”12 When tying this doctrine to the idea of human rights as minimum threshold, the margin of appreciation concerns the delineation in particular cases of this minimum threshold. To some extent this seems acceptable, in that the evaluation of whether a particular limitation is disproportionate or not depends on all relevant circumstances of the case, hence these “local particularities” and the supposed knowledge of these particularities do matter (in this respect). also come to play a part regarding positive state obligations—mutatis mutandis: in the end a “fair balance” test applies. See also K. Henrard, Mensenrechten vanuit internationaal en nationaal perspectief (BJU 2008), 194–200 (and references therein). 9 It is possible to distinguish different dimensions of the proportionality principle (see also R. Alexy, A Theory of Constitutional Rights (OUP 2001), 397) but the one that is mostly used by supervisory bodies is the requirement of a reasonable relationship between limitation on the one hand and legitimate aim on the other: inter alia Y. Arai, “The System of Restrictions,” in Theory and Practice of the European Convention on Human Rights (P. Van Dijk, F. Van Hoof, A. van Rijn and L. Zwaak, eds, Intersentia 2006), 341; J.H. Gerards, “Gelijke Behandeling en het EVRM: van krachteloze waarborg naar norm met tanden,” 30 NJCM Bulletin 167 (2004), 180. 10 See also J.H. Gerards, “Pluralism, Deference and the Margin of Appreciation Doctrine,” 17 European Law Journal 80 (2011), 106. 11 J. Van de Lanotte and Y. Haeck (eds), Handboek EVRM: Algemene Beginselen (Intersentia 2005), 101. See also J. Schokkenbroek, “The System of Restrictions,” in Theory and Practice of the European Convention on Human Rights (P. van Dijk, F. van Hoof, A. van Rijn and L. Zwaak, eds, Intersentia 2006), 349. 12 Inter alia Gerards, supra note 10, 110. church–state relations under the echr 233

When the Court grants a wide margin of appreciation, it quickly adds that this goes hand in hand with European supervision.13 In other words, the Court itself indicates that the supervisory role of the ECtHR is supposed to be meaningful. The question is now whether this supervision is indeed meaningful, and how this translates in terms of the protection and promotion of religious diversity in the workplace.

b. Critique of the Margin of Appreciation Doctrine of the ECtHR The ECtHR is the international court that has most prominently and most explicitly developed and used a margin of appreciation doctrine. Other supervisory bodies are hesitant to use it or even explicitly reject it, like the Human Rights Committee supervising the International Covenant on Civil and Political Rights (ICCPR). Over the years several strands of critique have been formulated against the margin of appreciation doctrine as developed and used by the ECtHR. Here we will primarily focus on the more fundamental problems with thinking in terms of a margin of appreciation for states, so as to argue for a reduced “use” and importance of this doctrine, while in the end also touching on problems regarding the (inconsistent and non-principled) application of this doctrine. Granting states a margin of appreciation involves two interrelated tensions: one in terms of having an international supervisory system, the other in terms of basic principles concerning legitimate limitations to human rights. b.1. First Tension: In Terms of Having an International Supervisory System On the one hand it needs to be acknowledged that by ratifying the Convention states accept a system of international supervision and allow the ECtHR to supervise their actions and inactions for compliance with the Convention. In other words, contracting state parties accept that the ECtHR has the final word in this respect.14 The preamble of the Convention also clearly envisages an increasing convergence between the contracting

13 ECtHR (Grand Chamber) 18 March 2011, Lautsi v. Italy, App. No. 30814/06, par. 70; ECtHR (Grand Chamber) 10 November 2005, Leyla Sahin v. Turkey, App. No. 44774/98, par. 110. 14 In the words of Yutaka Arai: “the Court has consistently emphasized that it is for the Court to give the final ruling on whether the limitations as applied are compatible with the Convention” (Y. Arai, “The System of Restrictions,” in Theory and Practice of the European Convention on Human Rights (P. Van Dijk et al., eds, Intersentia 2006), 341. 234 kristin henrard parties.15 This would seem to imply that it is accepted and expected of the ECtHR to take the lead in terms of the delineation of states’ human rights obligations. This means at least that the supervision needs to be meaningful. Supervision should not be the exception but rather the rule, and should definitely not be reduced to virtually no supervision. On the other hand, total uniformity is neither a necessity nor a possibility. The exact parameters of state obligations differ between countries in view of the “local” context and particularities.16 Consequently, a measure of flexibility is essential and it is important to leave some discretion to states so as to determine what is needed in their particular context. The margin of appreciation doctrine tends to be justified on the basis of “subsidiarity” in the sense that the international supervisory mechanisms are subsidiary to the national ones.17 This in turn implies that the primary responsibility to respect fundamental rights lies with the states.18 Both views are intuitively “right,” at least to some extent. So the crucial question is where to draw the line for the respective spheres of “authority”? In which respects and to what extent is state discretion concerning human rights acceptable? This in turn requires one to consider what exactly subsidiarity is about, and what does it mean that the international supervisory system is subsidiary to the national system and that the primary responsibility for respecting human rights falls to the national system? It arguably means that the national authorities should not violate these rights themselves; and that there should be redress at the national level in case of an unjustified infringement.19 However, this all presumes political will to respect fundamental rights as well as a flawless system where no mistakes are made. Reality tends to be different. Hence it is important, even essential, that there is a system of international supervision that kicks in and assesses the situation “objectively.” Indeed, the primary responsibility in relation to the respect of human rights lies with the states. But it is exactly that, the primary responsibility, not the ultimate one. Allowing the last

15 ECHR, preambular paragraphs 4–5: “considering that the aim of the Council of Europe is the achievement of greater unity between its Members … reaffirming their profound belief in those Fundamental Freedoms which are the foundational of justice and peace in the world and are best maintained … on the other by a common understanding and observance of Human Rights upon which they depend.” 16 See also Mahoney 1998, supra note 6, 12. 17 See in particular ECtHR 7 December 1976, Handyside v. UK, App. No. 5493/72, par. 48. 18 Inter alia G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007), 83. 19 This is also reflected in one of the admissibility requirements of a claim before the ECtHR: the need to have exhausted all national remedies (see Article 35 of the ECHR). church–state relations under the echr 235 word to the states themselves would defeat the purpose of having an international supervisory system at all. The fact that national authorities are “closer” to the local particularities, the circumstances and emotions on the ground, might also make them more prone to be influenced by “the illusion of the day” (and the related pressures).20 Put differently, concerning sensitive situations and questions, it would be equally justifiable to say that these are better decided— or supervised—at a more “remote” level, exactly because of the distance from local public opinion and the related “change in societal circumstances.”21 What does seem acceptable in terms of subsidiarity or what are acceptable implications of the subsidiarity rationale? It is beyond the confines of this chapter to be exhaustive in this respect, but a good example seems to be that the establishment of the facts is for the national authorities, at least by way of starting point. Similarly, it makes sense to have consideration for the weighing process that has been conducted by the national authorities: to the extent that this has been done meticulously and with regard to all relevant interests, there appears good reason to grant states a considerable margin of appreciation.22 Still, in the end and notwithstanding the margin of appreciation for states, the ECtHR’s weighing of all the relevant interests at stake might be such that the interference is considered disproportionate. b.2. Second Tension: The Value of Human Rights as Fundamental Rights and the Related Doctrine of Legitimate Limitations to Human Rights The second tension involved with the granting of a margin of appreciation to states concerns the implications of leaving national authorities a margin of appreciation to determine when a limitation amounts to a violation of the human right concerned. The other side of the coin is that this actually implies a reduction of the level of scrutiny or the intensity

20 This is a translation of an expression often used in Dutch: de waan van de dag. 21 These words are used by the ECtHR in one of its steady line of jurisprudence following which the ECHR is a living instrument which needs to be interpreted in line with present-day conditions: see inter alia G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007), 58–79; S.C. Prebensen, “Evolutive Interpretation of the European Convention on Human Rights,” in Protecting Human Rights: The European Perspective (P. Mahoney and R. Rysdal, eds, Heymans 2000), 1127–1137. See also infra. 22 The ECtHR generally requires the national courts to show in their argumentation that they have carefully weighed the conflicting interests in concreto: see inter alia ECtHR 25 May 1993, Kokkinakis v. Greece, App. No. 14307/88, par. 49; ECtHR 6 February 2001, Tammer v. Estonia, App. No. 41205/98, par. 69. 236 kristin henrard of review by the Court itself. Indeed, the margin of appreciation is not always equally extensive or wide. In the words of the Court: “the scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background.”23 Clearly, the more extensive the margin of appreciation, the lower the level of scrutiny and thus the lower the actual protection offered by the ECtHR. However, this implication of the margin of appreciation doctrine seems difficult to reconcile with one of the basic principles pertaining to legitimate limitations to human rights and the underlying recognition of the essential value of human rights as fundamental rights. It was already pointed out that limitations are only legitimate when they comply with the conditions imposed in the respective limitation clauses. Notwithstanding the variety among limitation clauses that can be noted, there is not only a certain system that can be identified but also general principles that apply to all limitation clauses and their application. The one that is particularly relevant here is that exceptions or grounds for legitimate limitations to human rights need to be interpreted restrictively;24 this as opposed to the scope of application of fundamental rights which needs to be interpreted broadly. It is indeed not difficult to understand that the rationale of a system of protection of human rights considers protection of human rights as a baseline, while limitations are the exception. In other words, the starting point is that once something falls within the scope of application of a fundamental right, it needs to be protected; and when public authorities limit the enjoyment of these rights, they need to have good reasons and have to put forward specific, concrete reasons why they would be allowed to limit the enjoyment of a fundamental right.25 In terms of supervision this arguably implies that supervision of human rights is the baseline, and does not leave a margin of appreciation to states. It was already highlighted that there are different types of state discretion, several of which are acceptable, as there is indeed no need for uniformity. However, the determination of the “bottom line” should be kept in check, and in this respect supervision by the ECtHR should not

23 Inter alia ECtHR 27 March 1998, Petrovic v. Austria, App. No. 20458/92, par. 38. 24 Inter alia N. Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (CUP 2002), 184. 25 Inter alia T. Loenen, Geloof in het geding: Juridische grenzen van religieus pluralisme in het perspectief van de mensenrechten (Sdu 2006), 41; G. Pitt, “Religion or Belief: Aiming at the Right Target?” in Equality Law in an Enlarged European Union: Understanding the Article 13 Directives (H. Meenan, ed., CUP 2007), 209. church–state relations under the echr 237 be made insignificant. Put differently, granting states a margin of appreciation concerning the minimum threshold seems to be antithetical to the entire idea that human rights are enshrined in an international convention and that their protection is supervised by an international supervisory mechanism. It should also be noted that in other respects the Court is willing to adopt particular interpretative devices that denote a more pro-active and demanding stance. Particularly relevant in this regard is the doctrine according to which the concepts in the ECHR have an autonomous meaning, and do not necessarily mirror the meaning that these concepts have in the national legal systems of the contracting parties.26 This obviously reduces the scope for national particularities. Similarly, the living instrument doctrine27 paves the way for progressive developments in the jurisprudence, in which the ECtHR takes up a more guiding, directive role, de facto narrowing the margin of appreciation of states. On the one hand this doctrine seems to confirm the subsidiarity principle in that it concerns the need for the standards to be in tune with the “present day situations” in the Member States. This appears to say that the states and sentiments of the national populations determine the reference point for the meaning of the convention standards. However, it is still the ECtHR which decides when the “turn” is made, and those states that have not yet developed to that extent will just have to follow suit. Hence, in the end it is the ECtHR which takes control and sets the stage. The preceding argumentation is meant to corroborate that, in line with the central interpretative principle of human rights, the emphasis should be on the supervision by the international supervisory body, while the margin of appreciation (and judicial self restraint) should be the exception, meriting a narrow construction. Indeed, regardless of how extensive the margin of appreciation left to states, the international control exercised should still be meaningful, and even dominant. Furthermore, from a human rights and a related “rule of law” perspective it also needs to be remarked that allowing states a margin of appreciation regarding the way in which they implement human rights carries the risk of negating the need for uniformity and the related concerns of legal certainty, as well as predictability.28 This actually ties in with criticisms

26 Inter alia Letsas, supra note 2, 42–43. 27 For a nice analysis of the jurisprudence of the ECtHR in this respect see inter alia Prebensen, supra note 21, 1127–1137 and Letsas, supra note 2, 58–79. 28 See inter alia on the importance of the rule of law: T. Bingham, The Rule of Law (Penguin 2010), 3–9. 238 kristin henrard of the way in which the margin of appreciation doctrine is applied: as it stands, the case law of the Court does not provide clear guidelines as to the limits of this margin of appreciation and how it monitors these supposed limits.29 The Court does recognize that this margin is not always equally extensive, and certain factors are even singled out as being relevant in this respect.30 However, because these factors are not consistently, or in any event not systematically, applied, the margin of appreciation doctrine is on uneasy terms with these basic values of the rule of law.

II. Problems with the Broad Margin of Appreciation the European Court of Human Rights Grants States when church–state Relations are in Play

While the preceding argumentation focused on the margin of appreciation doctrine in general, the following analysis will zoom in on the use of this doctrine in relation to church–state relations. Following a succinct introduction about the concept of “church–state relations,” the way in which the Court addresses these Church–State relations is discussed. Subsequently, the role of the common European standard in this respect is analyzed. Further, the problematic nature of a broad margin of appreciation for a matter which is intimately linked to the freedom of religion is denounced. Finally, the relevance of the prohibition of discrimination on the basis of religion is addressed.

a. The Concept “church–state Relations” It is important to remark that church–state relations is a matter which is not confined to (the implications of) the separation of church and state,31 but also refers to more substantive ideals pertaining to the content of state policy, the duty of state neutrality pertaining to religions being key.

29 S. Greer, “Balancing and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate,” 63 Cambridge Law Journal 412 (2004), 423–425; P. Mahoney, “Marvelous Richness of Diversity or Invidious Cultural Relativism?” 19 Human Rights Law Journal 1 (1998), 1; J. Schokkenbroek, “The Basis, Nature and Application of the Margin of Appreciation Doctrine in the Case Law of the European Court of Human Rights,” 19 Human Rights Law Journal 30 (1998), 36. 30 See also Gerards, supra note 10, 107–108. 31 According to Wibren van der Burg (Het ideaal van de neutrale staat. Inclusieve, exclusieve en compenserende visies op godsdienst en cultuur (BJU 2009), 18) the legally, historically and philosophically most appropriate perspective considers this to concern the institutional relationship between church and public authorities/government. church–state relations under the echr 239 church–state relations is thus a broad concept, although it does not cover just any matter pertaining to religion, as will be discussed further.

b. Limits to the Margin of Appreciation Regarding church–state Relations: European Control to What Effect? What does the Court mean when it underscores that the broad margin of appreciation left to states concerning church–state relations goes hand in hand with European supervision? Strikingly, according to the Court, this wide margin of appreciation would imply that even a state church would not necessarily violate state parties’ duties in terms of the ECHR. The bottom line seems to be the rather vague criterion that the freedom to manifest one’s religion should be enjoyed by adherents of all religions present in the state or the requirement that the necessary guarantees should be in place to ensure that the freedom of others to have or change a religion is respected.32 What is in any event not possible is coercion by the state to adopt a particular religion or to refuse someone the right to leave the church.33 In other words, the Court acknowledges that the freedom of religion imposes some constraints on the states’ freedom to adopt a particular system of Church– State relations. The questions raised here are: is this supervision in terms of the freedom of religion done in a complete and appropriate way (d) and are there other criteria that should be used but have been passed over (avoided) by the Court (e)? These questions are preceded by a critical analysis of the impact of a (perceived) common European standard on the determination of the extent of the margin of appreciation in particular cases (c).

c. The “Common European Standard” and the Margin of Appreciation for States Prior to discussing the identification as well as implications of a common European standard pertaining to church–state relations, some more general critical remarks about the way in which the Court identifies a common European standard are equally relevant.

32 C. Evans, Freedom of Religion under the ECHR (OUP 2001), 50. 33 ECtHR 23 October 1990, Darby v. Sweden, App. No. 1581/85, par. 45. See also ECtHR 25 May 1993, Kokkinakis v. Greece, App. No. 14307/88, par. 46–50; ECtHR 29 August 1996, Manoussakis v. Greece, App. No. 18748/91, par. 36. 240 kristin henrard c.1. In general It has already been mentioned that the margin of appreciation is not always equally extensive. The Court has identified in its jurisprudence factors that influence the extent of the margin of appreciation in particular instances. The Court does not use these factors in any systematic way though. Hence it is not surprising that the exact categorization of the distinctive factors and sub-factors by various academics is not identical.34 However, the following criteria are commonly enumerated: 1) the existence of a common European standard; 2) the nature (the particular importance) of the fundamental right concerned; 3) the type of legitimate aim pursued by the state; 4) the prevalence of general policy choices (financial implications); and 5) whether a case concerns conflicting rights. Zooming in on the common European standard, when a firm common European standard exists for a particular matter and a particular state has a markedly lower or incongruent standard, this is indeed suspect and requires closer scrutiny. However, a fundamental critique seems justified when it comes to the position of the Court that the absence of a common European standard should entail the grant of a broad margin of appreciation to states. After all, from a human rights protection point of view it can be argued that exactly in circumstances where there is no consensus, the international supervisory mechanism should give direction and guidance and “oblige” the dissenters to follow suit. To the extent that it does not do so, it neglects non-dominant, disadvantaged groups, like minorities, by allowing, confirming and even strengthening the dominant position (the status quo). While it may be disproportionate and inappropriate to force all states to adopt a uniform approach, a narrow margin of appreciation need not require the adoption of one particular model. It definitely seems possible to provide more guidelines, and to identify boundaries that should not be crossed in terms of human rights obligations.35 c.2. As Applied to church–state Relations When comparing the countries that are members of the Council of Europe there is indeed a great variety as to the relations between church(es) and states. The preceding paragraphs have argued that the absence of a

34 See Gerards, supra note 10, 107 and 108, and the references to other authors found there. 35 See also K. Henrard, The Ambiguous Relationship between Religious Minorities and Fundamental (Minority) Rights (BJU 2011). church–state relations under the echr 241 common European standard should not necessarily entail the grant of a broad margin of appreciation to states. In addition, it needs to be underscored that while there may be a great diversity between the Member States of the Council of Europe, at the same time there is a clear, albeit slow, trend to move away from state churches, and a trend towards the reduction of the relative weight of state churches and towards granting more extensive rights to other religions. This tendency has been most notable in Sweden, Finland, Italy, Spain and Portugal, while also in other Scandinavian countries the forces calling for the abol- ishment of the state church, or at least abandoning former privileges of the National Church so as to place them on an equal footing with the other churches and religions, are becoming stronger.36 In other words there does seem to be an (emerging) common European standard that state churches are not compatible with the obligations under the ECHR.37

36 C. Evans and C.A. Thomas, “Church-State Relations in the European Court of Human Rights,” 31 Brigham Young University Law Review 699 (2006), 706 and J. Temperman, State- Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (Martinus Nijhoff 2010), 61, who points out that “in Europe alone since the late 18th century, dozens of churches and religions have been disestablished, the disestablish- ment of the Church of Sweden in January 2000 being the most recent example.” See also the contributions by O. Einar Dorum (“The State and Church Moving towards Dissolution in Norway”) and Ingemund Hägg (“Sweden – Secular Population and Non-secular State”) in Separation of Church and State in Europe with Views on Sweden, Norway, the Netherlands, Belgium, France, Spain, Italy, Slovenia and Greece (F. de Beaufort, I. Hägg and P. van Schie, eds, European Liberal Forum 2008). See also, for a more general perspective, G. Ercolessi and I. Hagg, “Towards Religious Neutrality of Public Institutions in Europe: Introduction,” in id., 1–16. See also L. Bloss, European Law of Religion – Organizational and Institutional Analysis of National Systems and their Implications for the Future European Integration Process, Jean Monnet Working Paper 13/03, 67–68, where she points out furthermore that even despite considerable differences between the various models that still exist, a closer analysis allows one to detect significant similarities too. 37 This remark about an alleged emerging common European standard can be related to several other problems pertaining to the way in which the ECtHR decides on the existence or absence of a common European standard. The ECtHR has not established clear criteria, let alone a consistent approach for the determination of a European consensus. The term itself would denote a comparative investigation among European states, but the ECtHR in some cases pays more attention to the developments on the world level, by considering the existence of international (or regional) courts, or even the practice in a particular non- European country (like the US). In any event, whether or not there is a common European standard is often a question of interpretation without a conclusive answer. Consequently, it is not surprising that marked differences of opinion exist about the existence versus absence of such a European consensus. The dissenting opinions in some of the judgments of the ECtHR are telling in this respect. To the extent that the dissents tend to criticize the denial of a common European standard, this gives the impression that the ECtHR is too demanding in this respect. More problematically, this in turn gives the impression that the ECtHR prefers to give states a wide margin of appreciation 242 kristin henrard

While there is no need for uniformity, and a degree of diversity pertaining to church–state relations is acceptable, there in fact does seem to be an emerging common European standard about one bottom line, namely that a state church (at least) would not be acceptable (in terms of human rights obligations). In the following paragraphs, this bottom line is confirmed in terms of limits that flow from the freedom of religion in itself and in combination with the prohibition of discrimination.

d. Problems with a Broad Margin of Appreciation in Church–State Relations Related to the Freedom of Religion The Court describes the freedom of religion in a steady line of jurisprudence as a cornerstone or one of the foundations of a democratic society,38 which is the reference point for the ECHR system. This arguably points towards a narrow margin of appreciation for the states concerning the freedom of religion. This narrow margin is further corroborated by the fact that the limitation clause of the freedom of religion accepts very few “legitimate aims” in comparison with the other rights (e.g. the right to respect for privacy). A narrow margin of appreciation concerning the freedom of religion can be argued to require implications for the discretion left to states when they make choices about the relations between church and state. In any event, the importance of the freedom of religion seems to call for a strict scrutiny of the implications for this fundamental right of choices pertaining to church–state relations. However, the Court chooses to focus on the fact that there is no common European standard pertaining to the delicate question of relations between church and state in order to justify granting states a wide margin of appreciation. This can be argued to amount to an abdication (to some extent) of its own supervisory role. Several judgments indeed give the impression that the Court does not want to second-guess the assessment and choices of the national authorities in this respect (be it for strict separation or for a state church). Excellent examples of this are the cases pertaining to prohibitions of wearing the headscarf in the education sphere, where the Court was swayed by vague and general allegations of threats

(and thus to abdicate to some extent its supervisory role). This also seems to be confirmed by those instances where the ECtHR starts by accepting a European consensus about a certain theme, only to immediately add that this consensus does not reach as far as to concern the particular question at issue in the case. 38 Inter alia ECtHR 3 May 2007, case of 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v. Georgia, App. No. 71156/01, par. 130. church–state relations under the echr 243 to public order (a secular legal order) to accept these far-reaching limitations as legitimate.39 The Court’s steady line of jurisprudence, according to which having a state church would not necessarily be contrary to the Convention, is similarly difficult to reconcile with the freedom of religion, and more particularly the related duty of state neutrality.40 As will be more fully argued infra, the acceptance of a state church system is also problematic in view of the prohibition of discrimination on the basis of religion.41 A related point is the jurisprudence pertaining to positive state obligations under Article 9 of the ECHR which is remarkably poor in comparison with the vast and rich body of positive obligations the Court has identified in terms of other Convention Articles (like Article 8). Positive obligations under Article 9 of the ECHR have been more or less confined to the sphere of protection against acts of intolerance by public authorities and private parties.42 The importance of these positive obligations for the effective enjoyment of the freedom of religion is also on point for duties to actively and positively accommodate43 the needs of religious groups (often

39 See also T. Loenen and A. Terlouw, “Het EVRM en het Turkse verbod: de zaak van Leyla Sahin vs. Turkije” [The ECtHR and the Turkish Prohibition: the Case of Leyla Sahin v. Turkey], 32 NJCM Bulletin 213 (2006), 228–230. 40 Inter alia K.H. Ladeur and I. Augsberg, “The Myth of the Neutral State: The Relationship Between State and Religion in the Face of New Challenges,” 8 German Law Journal 143 (2007), 143 and 146. See also D.H. Davis, “The Evolution of Religious Freedom as a Universal Human Right: Examining the Role of the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief,” 27 Brigham Young University Law Review 217 (2002), 217. 41 Inter alia P.G. Danchin, “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law,” 33 Yale Journal of International Law 1 (2008), 13; P. Cumper, “The UK and the UN Declaration on the Elimination of Intolerance and Discrimination based on Religion and Belief,” 32 Emory International Law Review 13 (2007), 24. 42 See also Ministerie van BZK, Nota Grondrechten in de Pluriforme Samenleving [Report on Fundamental Rights in a Pluriform Society], (2004), 8, which identifies a certain degree of positive duties of care on the part of the government concerning the facilitation of religious manifestations, especially in relation to persons under a special regime like prisoners. De Jong discusses in his overview of positive state obligations in respect of the freedom of religion or belief only duties of due diligence to prevent, punish, investigate or redress the harm caused by acts of private persons or entities: see D. de Jong, “The Legal Obligations of State and Non-State Actors in Respect of the Protection of Freedom of Thought, Conscience or Religion or Belief,” 3 Religion and Human Rights 1 (2008), 7–10. See also M.T. Parker, “The Freedom to Manifest Religious Belief: an Analysis of the Necessity Clauses of the ICCPR and the ECHR,” 17 Duke Journal of Comparative and International Law 91 (2006), 98. 43 See also infra on duties of positive accommodation in terms of the right to equal treatment. 244 kristin henrard religious minorities).44 These duties of positive accommodation would seem to be just as important to realize religious pluralism and an effective enjoyment of the freedom to manifest one’s religion. However, also pertaining to the positive obligation side of state obligations under Article 9 of the ECHR, the Court tends to leave the contracting states a wide margin of appreciation. Here also it can be argued that the central importance of the freedom of religion for the convention system, and the importance of positive state obligations for the effective enjoyment of fundamental rights, should imply that positive accommodation (of religious manifestations)45 should follow unless there are strong policy considerations not to do so.46 This more welcoming attitude towards positive accommodation would in turn appear to constrain states’ discretion concerning church– state relations.

e. Broad Margin of Appreciation in church–state Relations and the Prohibition of Discrimination on the Basis of Religion Choices made concerning church–state relations tend to entail differential treatment between religions. Hence this needs to be scrutinized in terms of the prohibition of discrimination on the basis of religion. Especially when particular religions get a special status which goes hand in hand with privileges and advantages, and even when it only concerns a

44 See also K. Boyle, “Freedom of Religion in International Law,” in Religion, Human Rights and International Law: A Critical Examination of Islamic State Practice (J. Rehman and S.C. Bréau, eds, Martinus Nijhoff 2007), 29. 45 See also P. Bosset, Reflections on the Scope and Limits of the Duty of Reasonable Accommodation in the Field of Education (Cat. 2.120-4.20.2, February 2005), 4–5. For an analogous argument regarding the US religion clause, see inter alia B. Diniz de Ayala, “Church-State Relations, Religious Human Rights, Pluralism and Equality,” 17 ERPL/ REDP 77 (2006), 94. 46 See inter alia B. Tahzib-Lie, “Interdiction of Religious Discrimination: Problems that Members of Minority Religious and Belief Communities Experience in the Exercise of their Freedom of Religion or Belief,” in International Protection of Religious Freedom (J.F. Flauss, ed., Bruylant 2002), 60; D. Shelton, “Conscientious Objection and Religious Groups,” in International Protection of Religious Freedom (J.F. Flauss, ed., Bruylant 2002), 194–195, and the contributions of Javaid Rehman (“A Clash of Civilisations and a Conflict of Cities,” 189–194) and Peter Cumper (“The Accommodation of Uncontroversial Religious Practices,” 205–209) in Religious Pluralism and Human Rights in Europe: Where to Draw the Line? (M.L.P. Loenen and J.E. Goldschmidt, eds, Intersentia 2007). See also Veit Bader’s ideal of the associative democracy, since this (inter alia) requires or presupposes the maximal accommodation of religious practices/manifestations of religions: V. Bader, Secularism or Democracy: Associational Governance of Religious Diversity (Amsterdam University Press 2007), 20, 27 and 84. According to Bader, liberal democracy requires some flexible (not absolute) accommodation of religious practices, see inter alia Bader 2007, 136, 138, 140, and especially 164. church–state relations under the echr 245 symbolic status, this sends out signals of insiders and outsiders, of first and second class religions. It is common knowledge that the prohibition of discrimination does not prohibit every differentiation. Notwithstand ing the specificities of each non-discrimination regime, the criteria of “reasonable and objective justification” reflect a common baseline.47 This in turn can be broken down in two requirements: there needs to be a legitimate aim, and the differential treatment needs to be proportionate to that legitimate aim. Following steady jurisprudence, the ECHR supervisory bodies traditionally did not scrutinize differentiations very strictly. Over time, particular grounds were qualified as “suspect” and would trigger heightened scrutiny resulting in a presumption of illegality. The protection against instances of invidious discrimination on a particular ground would thus be stronger when that ground is considered to be a suspect class. Grounds are considered suspect when they concern characteristics that are in se irrelevant for someone’s functioning in society, and/or innate characteristics or ones that are so intimately connected to one’s identity that one should not be expected to change that in order to be treated equally and fairly, and/or there has been a history of discrimination on the basis of that ground.48 Grounds that are generally considered to be suspect include race and gender. Religion arguably also fulfills the criteria of “suspect class.”49 Furthermore, it is generally recognized that there is an extensive overlap between religion on the one hand and race-ethnicity on the other.50 However, there are several indications that religion is not generally— not full- heartedly—accepted as such a suspect class. Religion may be one of the grounds of prohibited discrimination that tends to be enumerated

47 See also HRC, General Comment no 18, par. 13 and M. Bell, “Direct Discrimination,” in Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (D. Schiek, L. Waddington and M. Bell, eds, Hart 2007), 269–271. 48 See inter alia J.H. Gerards, Rechterlijke Toetsing aan het Gelijkheidsbeginsel (Sdu 2002) 85–91. 49 D.J. Sullivan, “Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Intolerance and Discrimination,” 82 American Journal of International Law 487 (1988), 488 and 508. 50 Inter alia E. Darian Smith, Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (Hart 2010), 36–41. This is also noted by the Advisory Committee of the Framework Convention for the Protection of National Minorities in its evaluations of state reports, for example in Georgia (2009), par. 75; it in fact seems to be the case that religious identity is increasingly associated in the public perception with national identity. 246 kristin henrard explicitly in Article 14 of the ECHR, but that is not in itself conclusive.51 It is, in any event, striking that it took over 20 years to achieve consensus within the UN on a Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, while this was virtually immediately realized for race. Furthermore, the not legally binding Declaration on Racial Discrimination was equally swiftly followed by the 1965 Convention on the Elimination of all forms of Racial Discrimination. Notwithstanding several calls to develop a legally binding convention for religious discrimination, this is clearly not on the cards for the foreseeable future.52 Furthermore, the jurisprudence of the ECtHR does not fully confirm this suspect status of religion.53 Arguably the Court recognized this suspect status of religion in Hoffmann v. Austria, a 1993 case pertaining to Jehovah’s Witnesses. In Hoffmann, where a custody decision had been decided negatively for the mother, the ECtHR held that “a distinction based essentially on a difference in religion alone is not acceptable.”54 This seems indeed an indication that according to the Court differentiations on the basis of religion are suspect. However, until recently the Court has not repeated this statement, or used its more common “very weighty reasons” language, and thus not clearly confirmed the suspect status of religion. This was especially noticeable in cases with more or less the same factual background as Hoffmann,55 or other cases in which discrimination on the basis of religion was a key component.56 While in several of these cases the Court de facto scrutinized rather strictly, this was not always the case.

51 Indeed, several of the explicitly enumerated grounds in article 14 of the ECHR have not (yet) been considered as suspect class, like political opinion, social status and property. On the other hand, grounds not enumerated have been qualified as suspect, like sexual orientation. 52 Inter alia C. Evans, “Religious Freedom in European Human Rights Law: The Search for a Guiding Conception,” in Religion and International Law (M.W. Janis and C. Evans, eds, Martinus Nijhoff Publishers 1999), 387; J. Temperman, “25th Anniversary Commemoration of the Adoption of the 1981 UN Declaration on the Elimination of Intolerance and Discrimination Based on Religion or Belief: A Report,” 2 Religion and Human Rights 19 (2007). 53 See also C. Evans and C.A. Thomas, “Church-State Relations in the European Court of Human Rights,” 31 Brigham Young University Law Review 699 (2006), who underscore that the Court has taken a generous approach to state claims of an objective and reasonable basis for making a distinction between religions. 54 ECtHR 23 June 1993, Hoffmann v. Austria, App. No. 12875/87, par. 36. 55 For example, ECtHR 16 December 2003, Palau-Martinez v. France, App. No. 64927/01. 56 D. De Prins, S. Sottiaux and J. Vrielink, Handboek Discriminatierecht (Kluwer 2005), 30–31. There was not even a hint at this special status of religion as ground of differentiation in the more recent Gldani case where discriminatory aspects were key. church–state relations under the echr 247

For example, in Ismaelova v. Russia,57 a case with a similar factual background to Hoffmann, the majority of the Chamber does not appear to adopt a demanding level of scrutiny at all, which is vigorously criticized by a dissent of three judges. Especially in view of the de facto high scrutiny in several cases of invidious discrimination on the basis of religion, the Court’s avoidance of qualifying religion explicitly as a suspect ground appears to be triggered by its need to hold on to its jurisprudence that states have a wide margin of appreciation pertaining to their choice as to the relationship between church and state.58 Unfortunately the Court has so far not acknowledged the tension its position concerning church–state relations creates in relation to other essential lines of jurisprudence pertaining to the freedom of religion and the prohibition of discrimination. Hence it has not made an effort to provide further guidelines on how much support a state can give a particular religion without this resulting in inappropriate pressure on others to also join that religion or in appropriate disadvantages for non-adherents. Whether or not religion is accepted as a suspect class, a state-church model seems difficult to square with the prohibition of discrimination on the basis of religion, in the sense that there does not seem to be a reasonable and objective justification to elevate the standing of one religion over others in the public domain in a democratic society, characterized by pluralism.59 What is more, by leaving the states a wide margin of appreciation and thus “refusing” to take a position in controversial matters, the Court actually does take a position. Accepting the decisions of the national authorities implies leaving intact de facto preferences given to or acquired by the culturally embedded, prevailing, majority religions, thus de facto disadvantaging or solidifying the disadvantages of the minority religions and their adherents. In sum, granting states a broad margin of appreciation may in gen eral not be a good idea, and moreover is not in line with some of the

57 ECtHR 29 November 2007, Ismailova v. Russia, App. No. 37614/02. 58 Evans and Thomas also confirm this as they put forward that the focus of the Court is very much on religious freedom (and its doctrine of a broad margin of appreciation concerning church–state relations) while non-discrimination only plays a minor role: Evans and Thomas, supra note 36, 721. See also Id. at 723–724 where they favor a more searching scrutiny of the differential treatment between religions implicated in questions that are said to pertain to church–state relations. 59 M.C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (Basic Books 2008), 9, 11, 21. 248 kristin henrard fundamental principles of human rights. This is especially problematic regarding church–state relations, as there are additional tensions with the basic tenets of particular fundamental rights, the freedom of religion and the prohibition of discrimination on the basis of religion more specifically.60

III. Secularism as Constitutional Value Triggers an Even Wider Margin of Appreciation for States?

Secularism is arguably intrinsically related to state choices pertaining to Church– State relations, and according to the Court it is (supposed to be) in line with a democratic society and the values underlying it. The jurisprudence of the ECtHR seems to indicate that when a state adopts secularism as a constitutional value, this will entail an even broader margin of appreciation for that state concerning its church–state relations in the broad sense.61 This secularism line of jurisprudence was first of all visible in the seminal case Refah Partisi, pertaining to the dissolution of a political party by the Turkish Constitutional Court.62 While the previous case law of the Court had been very critical of dissolutions of political parties in Turkey, in this case it concluded that there had not been a violation of

60 This ambiguity concerning religion and religious rights is actually repeated in several other international jurisdictions/organizations, including the EU. The EU indeed leaves the Member States total freedom as to the choices made pertaining to church–state relations: inter alia L. Christoffersen, “Religion as a Factor in Multi-Layered European Union Legislation,” in Law and Religion in Multicultural Societies (R. Mehdi et al., eds, Djof Publishing 2008), 114–125. For an emphasis on the potential of the non-discrimination arse- nal at the disposal of the Union, see I. Rorive, “Religious Symbols in the Public Space: In Search of a European Answer,” 30 Cardozo Law Review 2688 (2009), 2688–2693. Similarly, it may now have competence to regulate discrimination on the basis of religion, but it has chosen not to expand reasonable accommodation duties to this ground of differentiation. Overall there seems to be heightened sensitivity concerns in terms of sovereignty and national identity when religion is concerned. See also Z. Enyedi, “Conclusion: Emerging Issues in the Study of Church-State Relations,” 26 West European Politics 218 (2010), 233, where it is underscored that “national identity, particularly on the peripheries of Europe, is often built around religious values and is linked to Church-State regimes as well. … The links between nation and religion are often recognized, but the implications of these links for Church-State relations must be more fully taken into account. These links mean that the logic of nationalism and national identity formation may have a direct impact on Church- State relations.” 61 See also N. Nathwani, “Islamic Headscarves and Human Rights: A Critical Analysis of the Relevant Case Law of the European Court of Human Rights,” 25 Netherlands Quarterly of Human Rights 221 (2007), 234. 62 ECtHR (Grand Chamber) 13 February 2003, Refah Partisi and others v. Turkey, App. No. 41340/98; 41342/98; 41343/98. church–state relations under the echr 249

Article 11. According to the Government, the party at stake would have implied a threat to secularism, one of the founding values of Turkey. The Court went along with the Government as it attached special weight to the alleged goal of safeguarding secularism as legitimate aim for the limitation of a fundamental right. Subsequently, this line of argumentation has also featured prominently in cases pertaining to headscarves in education. In several of these cases the Court even appears to say that an attitude which would not be in line with the principle of secularism would not necessarily be protected by Article 9, as if such an attitude would not even fall within the scope of application of the freedom of religion.63 While initially these cases concerned Turkey, more recent case law has clarified that the Court extends this line of reasoning also to France, seemingly accepting that secularism is also a key value for the French legal system.64 Be that as it may, the explicit references to the special value attached to secularism in the countries where it allows secularism seemingly to encroach further on the effective enjoyment of fundamental rights, would at least provide the possibility for the Court to go a different route in countries where this principle is less central. The Court seems to announce such a development by underlining in both Dogru65 and Aktas66 that secularism is a constitutional core value for Turkey, France and Switzerland (and thus a contrario not for the other Member States of the Council of Europe).

IV. Case Law: Focus on Religious Diversity in the Workplace

How does this line of jurisprudence pertaining to the margin of appreciation of states, especially concerning church–state relations, play out in the workplace? It is first of all imperative to note that the supervisory bodies of the ECHR do not always use explicit margin of appreciation language in the employment sphere. Still, they are similarly not willing to second-guess positions taken by a national government. The former European Commission on Human Rights had a steady line of jurisprudence revealing that it was unwilling to provide protection

63 ECtHR (Grand Chamber) 10 November 2005, Leyla Sahin v. Turkey, App. No. 44774/98, par. 116; repeated in the cases mentioned in the following footnote. 64 ECtHR 4 December 2008, Dogru v. France, App. No. 27058/05, par. 72; ECtHR 30 June 2009, Aktas v. France, App. No. 43563/08. 65 ECtHR 4 December 2008, Dogru v. France, App. No. 27058/05, par. 72. 66 ECtHR 30 June 2009, Aktas v. France, App. No. 43563/08. 250 kristin henrard against dismissals of persons because employees came to work late or left early regularly in order to comply with a prescript of their religion. While several cases indeed concern Jews or Muslims, they are not confined to these religions, but, for example also concern the Seventh Day Adventist Church or “regular” Christians, albeit from minority denominations.67 According to the Commission the refusal to respect working hours even if it is motivated by religious convictions cannot be protected by Article 9, paragraph 1: the dismissal would not be because of an employee’s religious convictions, but for having refused to respect working hours.68 This line of reasoning also ties in with the restrictive approach adopted towards what qualifies as a manifestation of religion.69 However, by denying a particular act as a manifestation of religion, the Commission (and later also the Court) substitutes its own assessment for that of the adherents of the religion. This tends to be difficult to reconcile with the interpretative restraint which is due in theological matters, since this only allows state judges to intervene in exceptional cases where the absence of religious motive is manifest.70 Alternatively, the Commission holds that a dismissal related to absences from work to fulfill religious observances does not amount to an interference: the person concerned had accepted the position knowing that the work schedule would prove incompatible with fulfillment of particular religious observance.71 In other words, the Commission was not amenable to identify duties of reasonable accommodation, a line of jurisprudence which has been confirmed by the Court in the more recent judgment

67 ECommHR 3 December 1996, Konttinen v. Finland, App. No. 24949/94 concerned a man working at the state railways who joined the Seventh Day Adventist Church. That religion has Sabbath duty from sunset on Friday to Saturday. On a few Fridays during win- ter this meant that he had to leave early from work. His dismissal for these unauthorized absences did not even raise issues under article 9(1) as these absences were not accepted as manifestations of his religion. In Stedman v. UK a private sector employer dismissed an employee who did not want to work on Sunday. The Commission relied on its Kontinnen reasoning and concluded that a fortiori unauthorized absences from work for religious reasons are not protected in relations between private persons (there would not be a positive obligation for the state to ensure that private employers would accept this behavior from their employees). 68 Inter alia ECommHR 3 December 1996, Konttinen v. Finland, App. No. 24949/94. 69 The supervisory bodies of the ECHR tended to require that a manifestation be intimately linked to religion: inter alia Evans 1999, 394. 70 Dissenting Opinion of judges Bratza, Fischbach, Thomassen, Tsatsa-Nikolovska, Pantiru, Levits en Traja in Cha’are Shalom Ve Tsedek v. France, 27 June 2000, App. No. 27417/95. See also Evans, supra note 32, 120. 71 ECommHR 12 March 1981, Ahmad v. UK, App. No. 22954/93. church–state relations under the echr 251 in Kosteski.72 In its inadmissibility decision in Dahlab v. Switzerland,73 the Court was not ready to identify duties of reasonable accommodation concerning religious dress and dress code in a particular employment setting. In this case the Court was willing to accept far-reaching restrictions on the freedom to manifest one’s religion for public school teachers. Dahlab was not allowed to wear the headscarf in order to ensure the denominational neutrality of the state education system, and also out of concern for the potential interference with the religious beliefs of the pupils (of a rather young age). However, there had been no complaints from parents about undue pressure on the children, nor any other complaints on the content or quality of her teaching.74 While the Court does not use the protection of secularism language (as in the headscarf cases against Turkey and France), the reasoning in the decision is rather similar to that in the latter cases, while Switzerland was indeed the third country the Court had identified in Dogru75 and Aktas76 as a country for which secularism is a central constitutional value. Unfortunately, in so far as complainants also raised an issue in terms of Article 14, because a country adopts the day of rest of one particular religion as the official day of rest for the entire country, thus disadvantaging adherents to religions with other Sabbath days, the Commission considered also that complaint manifestly ill-founded. Instead of focusing on the relationship between the dominant and the minority religions, and the related disproportionate impact of having one religion deter mine the day of rest and the religious holidays, the Commission totally bypassed that problem (of indirect discrimination) and merely stated that the national legislation does not provide an absolute right for members of a religious community to have a particular day regarded as their holy day: Nor is there any appearance on the facts as submitted by the applicant, that she was treated in any way differently from employees of any other religious conviction. In these circumstances the Commission considers there is no appearance of any discriminatory treatment of the applicant.77

72 See infra for more information on duties of reasonable accommodation, as well as on the Kosteski judgment. 73 ECtHR 15 February 2001, Dahlab v. Switzerland, App. No. 42393/98. 74 ECtHR 15 February 2001, Dahlab v. Switzerland, App. No. 42393/98, par. 1. 75 ECtHR 4 December 2008, Dogru v. France, App. No. 27058/05, par. 72. 76 ECtHR 30 June 2009, Aktas v. France, App. No. 43563/08. 77 ECommHR 9 April 1997, Stedman v. UK, App. No. 29107/95, par. 3. 252 kristin henrard

In this way, the Commission ignored the differential treatment which results from the apparently neutral rule of having one and the same weekly day of rest for all, irrespective of religious persuasion, and hence not accommodating religiously inspired commitments on alternative Sabbath days.

V. Duties of Reasonable Accommodation in Terms of the Prohibition of Discrimination

Duties of reasonable accommodation have fairly recently been developed as a specific, additional dimension of the equality principle. The underlying rationale of duties of reasonable accommodation is that one needs to deal with hurdles experienced by particular groups or persons to fully participate in public life, and have genuinely equal access to employment and services. The goal of this differential treatment is clearly realizing substantive or genuine equality and can actually be considered as a special type of “duties of differential treatment.”78 While duties of reasonable accommodation were originally conceived in the US and Canada exactly to deal with religious diversity, as it further developed and spread to other countries, and even the UN and the EU, the focus shifted markedly to persons with a disability.79 The kind of measures that have been discussed in Canada and recognized by the Canadian Supreme Court pertaining to religious diversity include exactly dress code, break policies, religious leaves and recruitment procedures. Uniforms that do not have health or safety rationales (such as school uniforms) can be easily altered to accommodate the individual and in any event some efforts to accommodate the employee in some manner will be required. When one’s religion requires religious observances at certain times during the day, this

78 There is furthermore a close parallel to indirect discrimination and positive action: K. Henrard, Equal Rights versus Special Rights: Minority Protection and the Prohibition of Discrimination (European Commission 2007), 25–31. 79 P. Bosset, Reflections on the Scope and Limits of the Duty of Reasonable Accommodation in the Field of Religion (Commission des droits de la personne et des droits de la jeunesse 2005), 2; J. Cromwell, “Cultural Discrimination: The Reasonable Accommodation of Religion in the Workplace,” 10 Employee Responsibilities and Rights Journal 155 (1997), 156–159; J. Goldschmidt, “Reasonable Accommodation in EU Equality Law in a Broader Perspective?” 8 ERA Forum 39 (2007), 45; L. Waddington and M. Bell, “More Equal Than Others: Distinguishing European Union Equality Directives,” 38 Common Market Law Review 587 (2001), 597. church–state relations under the echr 253 can be accommodated by a modified break policy or flexible working hours, of course each time depending on the circumstances.80 Considering the ratio and the kind of measures envisaged here, these duties of reasonable accommodation can be considered the counterpart of a particular type of positive state obligations in relation to substantive rights. It seems that the ECtHR’s hands-off approach regarding sensitive questions that have to do with religion and church–state relations in the broad sense81 and the limited range of positive state obligations it has identified in terms of Article 9 of the ECHR (as discussed supra), also limits the development of duties of reasonable accommodation in terms of the prohibition of discrimination. This is unfortunate, especially as thinking in terms of duties of reasonable accommodation has been theoretically prepared by the Thlimmenos judgment, and the reasoning developed there about duties to differentiate, in 2000. In Thlimmenos, the Court agreed that someone who is convicted for being a conscious objector, while he was exercising his freedom to manifest his religion, could not be treated the same as someone who had committed another type of conviction unrelated to the exercise of fundamental rights. Duties of reasonable accommodation are also intrinsically related to the prohibition of indirect discrimination, as is the case for duties to differentiate more generally. Indeed, in order to avoid finding a disproportionate negative impact and thus indirect discrimination, differential treatment of some kind might be necessary. However, it was already noted that the ECtHR has struggled a long time with the notion of indirect discrimination, also after the Thlimmenos judgment.82 Furthermore, the Thlimmenos line itself has not been used in very creative or innovative ways to identify positive obligations to adopt differential treatment. In so far as the Court has used the Thlimmenos rationale in other cases related to ethnic or national minorities, the results

80 P.A. Neena Gupta, “The Employer’s Duty to Provide Religious Accommodation,” HRinfodesk (June 2004), available at www.hrinfodesk.com. 81 As was shown supra, the Court is critical about outright invidious discrimination or the imposition of criminal sanctions for the exercise of religious beliefs (as in Thlimmenos). 82 While the Court initially had severe problems even acknowledging the concept of indirect discrimination, the Grand Chamber judgment in D. H. et al. v. Czech Republic arguably signals an important breakthrough (ECtHR (Grand Chamber) 13 November 2007, D. H. et al. v. Czech Republic, App. No. 57325/00). See also K. Henrard, “De Verhouding tussen de concepten redelijke aanpassing, indirecte discriminatie en proportionaliteit,” in De nieuwe federale antidiscriminatiewetten (C. Bayart et al., eds, Die Keure 2008), 269–270. 254 kristin henrard have been rather modest, in general.83 The main achievement until now is the recognition of the special duty on state authorities “to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events.”84 However, the Court initially even missed the opportunity to extend this line of jurisprudence to instances of violence inspired by religious discrimination in its judgment pertaining to 97 members of the Gldani Congregation of Jehovah Witnesses and 4 others v. Georgia (3 May 2007). Fortunately this anomaly has been redressed in the more recent Milanovic v. Serbia85 judgment. One particular type of differential treatment that could be necessary in order to avoid a finding of indirect discrimination, namely exemptions from laws of general application, have been rejected outright by the supervisory system.86 So far the issue of exemptions has only featured in older jurisprudence, pre-2000, and hence the influence of the Thlimmenos reasoning has not yet been tested. In the older case law, requests for exemptions were formulated in relation to laws on taxation, pension schemes, compulsory vaccination, rules about the way in which animals should be slaughtered, etc., because these laws would have a disproportionate impact on the adherents of a particular religion. In terms of the freedom of religion as such, the Court and the Commission seemed reluctant to even identify an interference with the freedom of religion, because the norms were neutral and did not have any religious connotation.87 In terms of the prohibition of discrimination, this would have similarly led to a finding that there was not even a differential treatment. The extremely careful and thus slow development of duties of differential treatment may also reflect the unease of the Court with this line of

83 See also L. Baillie, “Protection of Religious Minorities in Europe: The Council of Europe’s Successes and Failures,” 23 American University International Law Review 617 (2008), 620. 84 While this principle was formulated the first time in ECtHR 26 February 2004, Nachova v. Bulgaria, App. Nos. 43577/98 and 43579/98, par. 158, it has been confirmed many times since: inter alia ECtHR 13 December 2005, Bekos and Koutropoulos v. Greece, App. No. 15250/02, par. 73; ECtHR 23 February 2006, Ognyanova and Choban v. Bulgaria, App. No. 46317/99, par. 148. 85 ECtHR 14 December 2010, Milanovic v. Serbia, App. No. 44614/07, par. 96. 86 Either because the challenge to the neutral law was considered manifestly unfounded (and thus inadmissible) or because the restriction by this general and neutral law is considered justified: see inter alia C. Evans, Freedom of Religion under the European Convention on Human Rights (OUP, 2001), 179–186, and the case law discussed there. 87 ECommHR 13 May 1980, X v. UK, App. No. 8416/79. church–state relations under the echr 255 thinking and the flawed incorporation in the jurisprudence, as is also visible in the fact that there are still cases in which the Court glosses over instances of indirect discrimination. Overall, it is thus not so surprising that duties of reasonable accommodation have not yet featured (let alone prominently) in the jurisprudence of the Court. This has definitely led to missed opportunities in the workplace, and exactly pertaining to the issues enumerated above as ones that have been developed in Canada: flexible working hours in order to attend Friday prayers for Muslims, time off during religious days of rest and the like. As the preceding analysis of the case law of the supervisory organs of the ECHR in terms of Article 9 of the ECHR has shown, their apparent reluctance to identify state duties to accommodate religious diversity at work88 is visible in all stages of the determination process. Denying something the status of religion or manifestation of religion may be the most radical approach, denying an interference as a close second, but the end result is a rather marked lack of accommodation of religious diversity. The Court confirmed in Kosteski v. the Former Yugoslav Republic of Macedonia89 that it, like the former Commission, is not willing to establish an explicit duty of reasonable accommodation of religious differences which would require the state to take reasonable measures to ensure the effective enjoyment of the freedom to manifest one’s religion, also by members of religious minorities.90

88 This can be nicely contrasted with the “older” judgment of the ECJ in Vivien Prais v. Council concerning the complaint that the date for written tests of the competition to enter the service of the EU was set on a date when she could not take the tests because of religious reasons. The Court held that in so far as a candidate informs in good time the appointing authority about religious reasons which make particular dates impossible for him, this should be taken into account in fixing dates for tests. While there would not be an absolute obligation to avoid such dates, it should in any event be endeavored (par. 16–18). 89 ECtHR 13 April 2006, Kosteski v. the Former Yugoslav Republic of Macedonia, App. No. 55170/00. Note that in ECtHR 2 October 2011, Pichon and Sajous v. France, App. No. 49853/99, the Court adopted a similar restrictive approach in relation to the professional activities of pharmacists who refused to distribute contraceptive pills because of their religious convictions. According to the Court the complaint was inadmissible because in their capacity as pharmacists they are not entitled to express their religious conviction in this way which amounts to an imposition of their religious beliefs on others. While it seems reasonable that the Convention does not protect such expressions of religious convictions in the professional sphere, it is problematic that the Court’s reasoning is somewhat fuzzy. It seems both to deny that this refusal would amount to a manifestation of religion and to hold that the conviction for refusal to sell did not amount to an interference with the exercise of the rights guaranteed by Article 9. 90 J. Ringelheim, Diversité Culturelle et droits de l’homme, L’ emergence de la problema- tique des minorities dans le droit de la Convention Europeenne des Droits de l‘Homme (Bruylant 2006), 169. 256 kristin henrard

Unfortunately, the Court has so far not been called upon to investigate whether a lack of reasonable accommodation amounts to a violation of Article 14 following the Thlimmenos principle. A full expansion of the latter line of jurisprudence, in combination with a more thorough grounding for the prohibition of indirect discrimination in the case law, could still spark the emergence of a jurisprudential line embracing duties of reasonable accommodation in terms of the prohibition of discrimination (as well).

Conclusion: Hope for the Future?

While the Court still tends to use the language of a broad margin of appreciation for states concerning church–state relations, in several contexts the margin is de facto reduced.91 Already in older case law it was visible that the state is not allowed to meddle with religious leadership and possible schisms within a religion. Allegations of possible dangers for public security and order are not easily accepted in the sense that precise proof is required.92 The Court has become increasingly demanding about the requirements that registration and recognition schemes need to fulfill: the criteria need to be non-discriminatory in themselves and as applied, while the procedures used need to be transparent and adequately swift.93 Similar remarks can be made pertaining to criteria and procedures in order for religious communities to obtain legal personality. The Court correctly intimates that legal personality is often a critical precondition for many activities based on collective manifestation.94

91 See also C. Evans and C.A. Thomas, “Church-State Relations in the European Court of Human Rights,” 31 Brigham Young University Law Review 699 (2006), 699–670; A. Nieuwenhuis, “An Analysis of the Margin of Appreciation as Used in the Case of Leyla Sahin of 29 January 2004,” 1 European Constitutional Law Review 495 (2005), 502–503. 92 ECtHR 14 December 1999, Serif v. Greece, App. No. 38178/97; ECtHR 17 October 2002, Agga v. Greece, App. No. 37439/97. 93 Inter alia ECtHR 13 December 2001, Metropolitan Church of Bessarabia and others v. Moldova, App. No. 45701/99. See also ECtHR 10 June 2010, Jehovah’s Witnesses of Moscow v. Russia, App. No. 302/02 (in which the Court does not accept the reasoning of the Russian courts, de facto relying on prejudices about Jehovah’s Witnesses): protection against loss of status as registered religious organization (with legal personality and all those rights). 94 ECtHR 16 December 1997, Canea Catholic Church v. Greece, App. No. 25528/94, par. 40–41; ECtHR 13 December 2001, Metropolitan Church of Bessarabia and others v. Moldova, par. 118; ECtHR 1 October 2009, Kimlya and others v. Russia, App. No. 76836/01; ECtHR 31 July 2008, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, App. No. 40825/98, par. 66 (par. 78–80: related positive obligation (not of the kind of positive accommodation) to keep the time during which the organization had to wait for confer- ment of legal personality reasonably short). church–state relations under the echr 257

A few cases can be mentioned that signal a more critical scrutiny of a preferential status of one particular religion, first in the educational sphere, and public education more specifically. The European Commission on Human Rights had accepted in a case against Sweden95 that education about religions in public education focuses on a particular religion without amounting to religious indoctrination. According to Evans this evaluation was hard to understand and she warned about an increased danger that the course would lead to proselytism and the marginalization of people who think differently.96 Fortunately, the Grand Chamber reversed that line of thinking in Folgero v. Norway.97 While it acknowledged that parents do not have the right to keep their children in the dark about other religions, it also noted that the class concerned de facto has a predominant focus on Christianity. Notwithstanding the grant of a wide margin of appreciation, and remarks that in itself a disproportionate attention to one particular religion would not amount to indoctrination,98 the Court de facto adopted a strict scrutiny approach and pursues a detailed evaluation of all aspects of the case. This detailed weighing process led the Court to conclude that, all in all, the quantitative and qualitative differences between Christianity and the other religions amount to a failure to provide the requisite education in public education. Secondly, and still concerning public education, the Chamber judgment in Lautsi v. Italy of 3 November 2009 clearly circumscribed the

95 ECommHR 3 December 1986, Angeleni v. Sweden, App. No. 10491/83. It needs to be acknowledged that Angeleni v. Sweden turned on Article 9 and not the second article of the first additional protocol because Sweden had filed a reservation in relation to the latter article. Nevertheless, the Commission holds that Article 9 also prohibits indoctrination in education. According to the Commission there would not be religious indoctrination, notwithstanding the fact that de facto the instruction about religions focused on Christianity. 96 C. Evans, Freedom of Religion under the ECHR, (OUP, 2001), 94. 97 ECtHR 29 June 2007, Folgero v. Norway, App. No. 15472/02. It should be noted that the Human Rights Committee pronounced on a case about the same facts but in relation to different parents (Leirvag et al. v. Norway, 3 November 2004). While neither the Committee nor the Court pronounce explicitly on the legitimacy of partial exemptions as category, they both seem to question that legitimacy to a great extent (see also C. Moe, “Religious Human Rights and Religion in Schools,” paper presented at the international conference Religion in Schools: Problems of Pluralism in the Public Sphere (Montenegro 2005)). The Committee is clearly more sensitive and realistic about the context in which the exemption takes place by taking into account the loyalty issue for pupils and the chilling effect on parents (of having to scrutinize closely the content of the education system). 98 ECtHR 29 June 2007, Folgero et al. v. Norway, App. No. 15472/02, par. 89. An analogue argumentation can be found in the more recent judgment ECtHR 9 October 2007, Hasan en Eylem Zengin v. Turkey, App. No. 1448/04, where the Court also takes into consideration that Islam is the majority religion in the country (par. 63). 258 kristin henrard possibility of having a religious symbol in a classroom of a public school. According to the Chamber the predominant meaning and connotation of the cross would be religious.99 This powerful symbol would exert pressure on the pupils, especially those of young age.100 The Court attached due weight to the fact that this cross in a public classroom represents an official recognition and state support of one particular religion.101 According to the Chamber the state had not met its duties of neutrality.102 Finally, Arslan et al. v. Turkey103 even seems to denote a limit to the wide state discretion pertaining to the regulation of religious dress, also when this limitation is allegedly crucial to the maintenance of secularism. In casu it did not concern a setting or a building where concerns of state neutrality are in order. To the contrary, the case concerned the prohibition for every person of wearing religious clothes and a Turban in the public space in general. The reasoning of the Court clearly shows that Turkey did not enjoy a wide margin of appreciation in this matter. How do these developments translate in terms of hope for the future? While the first two remarks pertain to rather solid and welcome trends in the jurisprudence, unfortunately several of the latter cases do not yet constitute steady lines of jurisprudence. When considering the important shift in Folgero, one also needs to acknowledge that there have been later cases in which the Court did not adequately factor in de facto pressures regarding religious education in the same way as it identified de facto dominance of one religion in the curriculum. For example, in Grzelak v. Poland of 15 June 2010, the Court remained oblivious to the stigmatization flowing from the absence of a mark for religion/ethics in school reports which was due to the fact that the applicant did not want to follow a course on religion while the ethics class was not provided. The Grand Chamber’s judgment in Lautsi v. Italy of 18 March 2011 reversed the Chamber judgment in crucial respects. While the Grand Chamber confirmed the state’s duty of neutrality and impartiality, and also that the crucifix is above all a religious symbol, it argued that “there is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions

99 ECtHR 3 November 2009, Lautsi v. Italy, App. No. 30814/06, par. 51. 100 Id. at par. 50. 101 Id. at par. 53. 102 Id. at par. 56. 103 ECtHR 23 February 2010, Arslan et al. v. Turkey, App. No. 41135/98, par. 49–51. church–state relations under the echr 259 are still in the process of being formed.”104 The emphasis is clearly put on the broad margin of appreciation due to states concerning the content of the curriculum as well as the place of religion in society. Concerning the limit of indoctrination,105 the Grand Chamber opined that a regulation prescribing the presence of crucifixes in state- school classrooms may confer a preponderant visibility to that majority religion in the school environment, but this would not be sufficient to denote a process of indoctrination.106 A crucifix on a wall would be an essentially passive symbol,107 and it is not accompanied with compulsory teaching about Christianity,108 while Italy would open its school environment in several respects to other religions.109 The Grand Chamber therefore concluded that Italy has acted within the limits of its margin of appreciation.110 Overall, it is impossible to formulate a conclusion with a truly hopeful message concerning a solid trend towards a marked reduction of the margin of appreciation of states, which could have positive implications for state duties to protect religious diversity in the workplace. So far, there have only been a few glimmers of hope.

104 ECtHR (Grand Chamber) 18 March 2011, Lautsi and others v. Italy, App. No. 30814/06, par. 66. 105 Id. at par. 62 and 69. 106 Id. at par. 71. 107 Id. at par. 72. 108 The Court gives a startling reading of its own Folgero judgment, arguably rewriting that judgment as if it would not have considered it problematic that the larger share of a multi-religious syllabus was reserved for one particular religion in paragraph 71. 109 Id. at par. 74. 110 Id. at par. 76–77.

PARTICIPATION OF MUSLIM MINORITIES IN THE SPANISH MAINSTREAM SOCIETY*

Eugenia Relaño Pastor*

1. Introduction: Islam in Spain

The Muslim communities have already spent decades fighting to achieve a real integration and a genuine social and economic participation in Spanish society. In the 1960s, during the Franco dictatorship, the Muslim population which mainly lived in the Spanish cities of North Africa, Ceuta and Melilla, set up the first Muslim associations according to the first Spanish Religious Freedom Law of 1967. Since then they have struggled to gain full recognition of religious freedoms and for their right to have their religious manifestations be fully visible in the Spanish public sphere. This is of utmost importance to enable Muslims to participate on citizens’ common affairs. This article will explore the issues that the Muslim communities face to achieve full participation in society. Particularly, it will, first of all, analyze the key legal obstacles related to relationship between Church and State in Spain, which hinders the openness of the State to cooperate with minorities and to meet the needs of the Muslim communities. Then, the article reviews the effectiveness of the instruments that were created to protect the identity of Muslims and to ensure their full social and economic participation. In this context, it is important to stress from the outset that the challenges for genuine integration are not only institutional (related to the effectiveness of the legal instruments aimed at integrating the Muslim communities). They are also related to the widespread prejudice that exists among non-Muslims against Islam, which is perceived by many as an intolerant religion. Spain has been transformed from an emigration country to an immigration country. The arrival of immigrants, with their different religions,

* This presentation is written within the Project I+D+i : “Citizenship rights, freedom of establishment and provision of services in the EU’s internal market (Derechos de la ciu- dadanía, libertad de establecimiento y circulación de servicios en la Unión Europea) Ministry of Science and Education (DER2009–08579). * Complutense University-Spain. 262 eugenia relaño pastor languages, and cultures has reactivated other debates that remain unresolved since the period of democratic transition, such as those related to the management of religious, linguistic, and cultural pluralism. In spite of the recent growth of Muslim communities in Spain, the so-called new minority religion of Islam has an important history for more than eight centuries in this country.1 The fact that most conflicts of multiculturalism are related to the Muslim community can be understood when considering that Spanish identity has been partly constructed based on a traditionally negative perception of the Muslim in general, and the Moroccan in particular, considered in pejorative terms as ‘the Moor’ (el moro).2 It is not possible to know exactly the number of Muslims in Spain, but its increase is very evident. Though no official government census based upon religion has ever been conducted in Spain, as the Spanish constitution states that no individual is obligated to answer questions regarding religion or religious beliefs, the Center for Sociological Investigation, an independent government agency, periodically collects data on religious trends. In April 2010 one of its surveys reported that 73.2 percent of respondents considered themselves Catholic, though 53.1 percent of these almost never attend Mass3. An additional portion of Spanish society, less than 10 percent, are followers of Islam, Judaism, Buddhism, Hinduism, and Baha’ism. According to the Islamic Commission of Spain and Ministry of Justice reports in 2009 there were approximately 1.4 million Muslims in Spain.4 Approximately 72 percent are Muslim immigrants without Spanish nationality. According to figures of the Andalusi Observatory there are 1,300,000 and according to a survey by the Union of Islamic Communities the number is 1,130,000 of which 33,000 are converts. The number of immigrants from predominantly Muslim countries is about 800,000. Most of them come from Morocco (almost 700,000), followed by Algerians (46,000), Senegal (31,000) and Pakistan (36,000).

1 R. Zapata-Barrero, ‘Dynamics of Diversity in Spain: Old Questions, New Challenges’, in S. Vertovec and S. Wessendorf (eds.) The Multiculturalism Backlask. European Discourses, Policies and Practices (Routledge, 2009), p. 237. 2 R. Zapata-Barrero, ‘The Muslim Community and Spanish Tradition: Maurophobia as a Fact, and Impartiality as a Desiratum’, in Modood, T. Triandafyllidou, A., and Zapata- Barrero, R. (eds.) Multiculturalism, Muslims and citizenship: a European approach (New York, Routledge, 2006) p. 143. 3 Center for Sociological Investigation (CIS) http://www.cis.es/cis/opencms/-Archivos/ Marginales/2840_2859/2847/e284700.html accessed 20 November 2010. 4 30 per cent of Muslims are Spanish, while 70 per cent are immigrants (50 per cent Moroccans, 20 per cent other nationalities). participation of muslim minorities 263

The rest of them come from a varied national backgrounds, predominantly from African countries in which citizens often are not necessarily Muslims and to a much lesser extend they also come from the Middle East (Iran, Egypt Syria). Moroccans have increased five times in the last ten years, the Algerians and Senegalese seven Bangladeshis and Pakistanis for fifteen and sixteen respectively.5 Muslims are a very heterogeneous community. They could be divided among different categories: (1) immigrants and converts Spanish, (2) nationals and foreigners, (3) belonging to different doctrinal branches -mostly Sunni- and (4) among those who identify themselves as Muslims but with little practice of their religion and those who guide their lives accordingly to Islam. Muslim immigrant population in Spain has experienced quantitative changes in recent years but also qualitative changes regarding to their process of organization and representation as a religious community6. There has been an increase of Muslims associations (a phenomenon that hinder the dialogue with the government) which it does not mean that Islam in the daily life of immigrants would have been increased, neither that a possible process of Islamization -claimed in some media- has emerged.7 In general, there are four ways of living Islam in the field of religious affiliation (private Islam, manifestation in public, or political involvement), many Muslim immigrants practice just a private Islam. However they are also increasingly expressing their Muslim membership through participation in collective rituals and as a sign of group identity. It is also important to emphasis shortly the reciprocal perception of how citizens perceive the Muslims presence in Spain and how Muslims perceive the strength of their Islamic identity. These perceptions are very important for building the image of the “good Muslim citizen.” If the Spaniards that are not Muslim have a stereotypical image that the Muslim citizens cannot integrate into Spanish society, it is more difficult to get their effective participation on matters that affect everyone. In addition,

5 Unión de Comunidades Islámicas de España, ‘Estudio demográfico de la población musulmana. Explotación estadística del censo de ciudadanos musulmanes en España referido a fecha 31–12–2010’ http://oban.multiplexor.es/estademograf.pdf, visit on 23 June 2011. 6 J. Lacomba, ‘Inmigrantes y musulmanes: exclusión e integración en el nuevo medio’, 5 Documento de Trabajo (Casa Árabe, 2009). http://publicaciones.casaarabe-ieam.es/ documentos_de_casa_arabe/DCA001.pdf visited on 20 June 2011. 7 J. Lacomba, El islam inmigrado. Transformaciones y adaptaciones de las prácticas culturales y religiosas (Ministerio de Educación, Cultura y Deportes, Madrid, 2001). 264 eugenia relaño pastor negative stereotypes about Muslims does not enable the acceptance of their genuine Muslim identity beyond those stereotypes. The survey by the Pew Global Attitudes Project, Muslims in Europe: Economic Worries Top Concerns About Religious and Cultural Identity was conducted in 13 countries, including the United States in 20068 and it shows that Muslims in Europe worry about their future, but their concern is more economic than religious or cultural identity. And while there are some signs of tension between Europe’s majority populations and its Muslim minorities, Muslims there do not generally believe that most Europeans are hostile toward people of their faith and only one-in-four in Spain say they have had a bad experience as a result of their religion or ethnicity. Muslims in Spain are the least concerned about European anti- Muslim sentiment, fewer than a third (31 per cent) say most or many Europeans have hostile attitudes. In Spain, 60% of the general public sees most or many of their fellow countrymen as hostile to Muslims but only 31% Spanish Muslim share that view. Most Europeans doubt that Muslims coming into their countries want to adopt their national customs and way of life. In Spain (67 per cent) say that Muslims want to remain distinct from the larger society. Instead when one asks Muslims themselves, they claim 53 per cent being in favor of adopting the Spanish customs, while 27 per cent say they want to be different from society as a whole. The disparity in the assessment of the adoption of customs is an indicator of an unfair appreciation of the integration effort. Moreover while 79 per cent of Non Muslim Spanish think they the Muslims have a strong sense of identity, this percentage drops to 32 per cent when asked Muslim immigrants themselves. This means that most of the Spanish want to see Muslims as different citizens, with a distinct identity to the majority and it also reveals little acceptance of Muslim immigrants as citizens. Obviously, opinions held by Muslims in Spain differ from opinions about Muslims among Spain’s majority population. In spite of that, the Spanish public’s view toward immigrants (all immigrants regardless of religion) has grown slightly more negative over the last years.9

8 Muslims in Europe: Eco to Islamic religious precepts nomic worries top concerns about religious and cultural identity, 2006, http://pewglobal.org/files/pdf/7–6-06.pdf visited 20 June 2011 9 An increase in negative attitude is linked to the increase of immigration to by over 35 per cent from 2000 to 2005. The main sources of information in Spain are the Barometers of the Centro de Investigaciones Sociológicas (CIS, Centre for Social Research). Since 1991, participation of muslim minorities 265

In the first part of the article, I will address the normative framework regarding the protection of religious freedom and religion minorities. An effective participation in socio-economic life not only requires the existence of comprehensive legislation prohibiting discrimination on ethnic and religious grounds, by public and private actors, but also the State should remove undue obstacles and excessive regulations hindering the practice of economic or social activities specific to certain minority groups such as Muslims minorities. In the second part, I will point out the main difficulties in order to achieve and effective participation of persons belonging to Muslims minorities in the economic and social life and I will also refer to the shortcomings of the Cooperation Agreement signed between the Spanish state and the Islamic Commission of Spain (Comisión Islámica de España). I will conclude by emphasising that there is an institutional lack of sensitivity to the cultural background and specific needs of the Muslims population in the public sphere. A good example is the rejection of veiled Muslim women in educational institutions. They use the veil as a symbol or part of their own identity while education authorities believe that the veil does nothing to do with Muslim identity and it is a sign of oppression of women.

2. Normative Framework

2.1. Freedom of Religion in the Constitution of 1978 The Constitution of 1978 goes beyond Catholic confessionalism, and the radical secularism of the Second Republic, by proclaiming that Spain has no official religion and by recognizing religious liberty. This Constitution, as a result of a new social and political context characterized by consensus, provided a positive framework for the development of religious freedom and Church-State relations in Spain. It includes the protection of individual and collective religious freedoms while fostering positive,

several CIS studies have focused on Spanish attitudes towards the immigrant population. Since February 2000, questions related to migration issues are included in the survey on a monthly basis. In the question about what people consider to be the three most important problems affecting the country, immigration becomes a permanent category starting from September 2000. See Casa Árabe, ‘Musulmanes en la Unión Europea: discriminación e islamofobia. Percepciones sobre discriminación e islamofobia. Extractos de los informes del Observatorio Europeo del Racismo y la Xenofobia de diciembre de 2006’, 1 Documento de Trabajo (Casa Árabe, Madrid, 2007) http://www.iemed.org/documents/eumcinformes .pdf visited on 23 June 2011. 266 eugenia relaño pastor cooperative relationships between the State and various religious groups. Rather than restricting, preventing, or controlling religious groups, as had been done during the Second Republic, the Constitution of 1978 obliges public authorities to actively cooperate with religious entities. The Constitution of 1978 protects the exercise of freedom of religion and conscience by every individual and group. Article 16, Section 1 guaranteed the individual and collective right to “freedom of ideology, religion, and worship,” with the manifestation of such freedoms subject to those restrictions necessary to “maintain public order as protected by law”. Section 2 protected individual freedom of expression by recognizing that no one can be forced to declare his or her religious beliefs, while Section 3 prohibited the establishment of a state religion and required the State to “maintain appropriate cooperation with the Catholic Church and the other (religious denominations).10 Article 14 stated that “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance”. Addi tional Constitutional provisions directly or indirectly relating to freedom of religion and belief include: Article 30 (conscientious objection to military service), Article 27 (right to education and freedom of teaching), Article 20 (freedom of expression), and Article 22 (freedom of association).11 The Spanish Constitution establishes a framework for religious pluralism and tolerance, and the Fundamental text is based on important principles to be taken into consideration for effective protection of any human rights, particularly religious freedom: (1) Respect and protection of fundamental rights inherent in human dignity (Article 10.1).12 This principle implies that any individual holds those fundamental rights which are inherent in human dignity.

10 Article 16: “1. Freedom of ideology, religion and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law; 2. No one may be compelled to make statements regarding his or her ideology, religion or beliefs; 3. No religion shall have a state character. The public authorities shall take into account the religious beliefs of Spanish society and shall consequently maintain appropriate cooperation relations with the Catholic Church and other confessions”. 11 A. de la Hera and R.M. Martínez de Codes (ed.) Spanish Legislation on Religious Affairs (Ministerio de Justicia, Madrid, 1998) pp. 25–39. 12 Article 10: 1. The dignity of the person, the inviolable rights which are inherent, the free development of the personality, the respect for the law and for the rights of others are the foundation of political order and social peace. 2. Provisions relating to the participation of muslim minorities 267

Religious groups, such as churches or religious communities, are also rights holders, insofar as fundamental rights are exercised by persons collectively. (2) Pluralism (Article 1.1).13 In order for citizens to exercise their basic human rights, a government must recognize and ensure the value of pluralism. Because there can be no liberty without freedom of choice, each individual must be able to choose among a variety of options, beliefs, ideas, ideological convictions, perspectives, and philosophical or religious worldviews. (3) Participation (Article 9.2).14 The constitutional principle of participation in political, economic, cultural and social life includes taking part in decision-making processes not only by individuals but also by religious and philosophical groups in any issue that may affect directly. The latter is a constitutional provision of great importance for achieving full equality for all groups in decision-making processes that affect them. This is the provision called the promotion of effective equality, which is crucial to remove any obstacle that prevent Muslim communities from participating fully in economic and social life. Article 9.2 views positive actions and measures promoting equality not as exceptions to the principle of equality but rather as means that are constitutionally legitimate to implement equality. In addition to these general constitutional principles, there are four guiding principles cited in the Spanish Constitution which inspire Church and State relations, the judicial system and actions of the Government.15 These principles are binding legal norms to the public authorities. They are enshrined in the Constitution and some of them are also human rights. For example, the principles of religious freedom and equality should guide all actions of public authorities and at the same time they fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain. 13 Article 1: “1. Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system. 14 Article 9.2: “It is the responsibility of the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove the obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life”. 15 J. Calvo Álvarez, Los principios constitucionales del Derecho Eclesiástico español en las sentencias del Tribunal Constitucional (EUNSA, Navarra 1999). 268 eugenia relaño pastor are fundamental rights. Other principles, instead are not fundamental rights, but still should guide the action of the powers of the state, such as the principles of cooperation and neutrality. The first principle is religious freedom (Article 16.1). As a guiding principle governing public authorities, this principle requires that public powers have no authority in religious matters. Religious freedom should not only be recognized and protected, but also promoted according to the axiom: “maximum freedom possible, minimum restriction necessary”. The second principle is equality with respect to religion/s. Article 14 recognizes equality both “in the law” (preventing laws from creating unequal or discriminatory situations among citizens) as well as “of the law” (legal consequences resulting from laws must also be equal). Article 14 prohibits discrimination based on ideological or religious grounds. Therefore, differences among legal statutes of several religious communities are legitimate only if they are not the result of discrimination. The equality principle also implies a substantive equality, requiring the State to take action to protect and enforce equality, i.e., public powers should intervene to promote the necessary conditions for real and effective equality between individuals and the groups, removing those obstacles that prevent or hinder full equality. The third principle is state neutrality. Article 16.3 establishes that “no denomination shall have the character of a state religion”. And lastly, the principle of cooperation with religious groups (Article 16.3). This principle is not intended to positively validate religious interests or religion itself. Rather it exists only as a instrument to ensure that citizens obtain the full enjoyment and exercise of the right of freedom of conscience. State cooperation with churches, which is required by the Constitution, implies that religion is considered a positive reality in Spain as far as it is the result of the exercise of the freedom of religion.

2.2. Spanish Statutory Treatment of Religion The constitutional right to religious freedom was developed by a statute, the Organic Law on Religious Freedom (LOLR), enacted in 1980. LOLR deals both with the individual aspects of religious freedom and with the main issues regarding the relationships between the State and religious denominations.16

16 Ley Orgánica 7/1980, de Libertad Religiosa, 5 July 1980. See M.J. Ciaúrriz, La libertad religiosa en el derecho español. La ley Orgánica de Libertad Religiosa (Tecnos, Madrid, 1984). participation of muslim minorities 269

Because State relations with the Catholic Church had already been largely defined by Agreements negotiated in 1979 shortly after the adoption of the Constitution of 1978, LOLR focused on non-Catholic denominations. LOLR enumerates the individual and group rights included in the constitutional guarantees of religious freedom. Article 2.1 guarantees individuals the following religious rights : 1) Free exercise of any or no religious belief, right to change religious beliefs and right to express religious beliefs openly; 2) Freedom of religious worship, celebration of religious holidays, marriage rites and funeral rites, and religious assistance in schools, the armed forces, prisons, hospitals and welfare institutions; 3) Freedom to instruct or be instructed in religious teachings, the right to choose religious education according to personal convictions, and the right to religious information; and 4) Freedom to meet, join and develop religious activities. With regard to collective rights, churches and religious communities possess the right to set places of worship, to educate and appoint their religious leaders, to proselytize, and to maintain relations with other religious organizations, whether in Spain or outside. For any religious community to exercise the aforementioned rights to religious freedom, including those relating to keep their places of worship, have the right to autonomy in internal affairs and to their identity and to maintain relationships with other religious organizations, it is necessary first to be recognized as a religious community. That means that any Muslim community cannot enjoy all rights to religious freedom unless it is recognized previously as a religious community. Spanish legislation lacks a single label for religious groups. Many terms are used in legal texts: religious association, religious denomination, religious community, church, confession, entity. The most common label is religious denomination. LOLR does not define what a religious denomination is but it recognizes as religious entities those denominations that can prove a specific religious purpose.17 But what is a religious purpose? Article 3.2 of LOLR outlines those activities, purposes and entities which are not deemed religious, that is those related to psychic or para-psychic phenomena, or those which spread “humanistic or spiritualist” values. The main question could be how state law distinguish religious values from

17 A. Motilla, ‘Aproximación a la categoría de confesión religiosa en el Derecho español’, 4 Anuario de Derecho Eclesiástico del Estado (1988) pp. 107–119. 270 eugenia relaño pastor spiritualistic values therefore one could be legally protected by the religious freedom guarantees and the other could remain out of scope of the law. If entities or denominations have religious purposes, LOLR provides them the possibility of special protection by granting them legal recognition. In order to receive legal recognition as a religious entity, the law required that the organization submit to a process of inscription in the Register of Religious Entities.18 Once registered, the denomination enjoys autonomy and freedom of internal organization, is able to create associations for achieving its ends, and gains special protection of its beliefs and rites.19 The creation of LOLR can be considered a crucial step in the advancement of religious pluralism within Spain, as it was the first time that a broad spectrum of individual and group religious rights (albeit with certain limitations) were officially recognized, with limits prescribed similar to those established by international human rights law.20 These limitations include “violation of others’ fundamental rights and liberties” (Art. 3.1) and “public health, security and morality as constituent elements of public order” (Art. 3.2). LOLR was passed in order to further develop Article 16, and to fulfil the State’s duty to cooperate with religious denominations through specific instruments. There cannot be full participation and integration in society if the State does not facilitate an open cooperation with Muslim communities. Article 7 allows the State to make agreements with minority religions similar to those already entered into with the Catholic Church. These agreements are treated as ordinary positive law emanating from Parliament. In order to enjoy active participation with the State through a formal cooperation agreement, a religion denomination has to be recognized as well-known rooted in Spain. To date, objective criteria for determining this status has not been established.21

18 Article 5 LOLR. 19 If a group is not allowed to register as a religious entity, it can obtain legal personality in Spain through registration in the general Registry of Associations. In any event, legal personality, acquired through any of those two ways, does not constitute a condition for the exercise of religious freedom in Spain, which is guaranteed by Article 16 of the Constitution “with no other restriction on their expression than may be necessary to maintain public order as protected by law”. 20 Art. 18.3 International Covenant of Civil and Political Rights and Art. 9.2 European Convention of Human Rights. 21 No objective criteria exists for the determination of whether a denomination has recognized roots in Spain. For example, the General Authority for Religious Affairs decided participation of muslim minorities 271

In 1992 the State signed agreements with the Federation of Evangelical Religious Entities of Spain (FEREDE), the Federation of Israelite Communities of Spain (FCI) and the Islamic Commission of Spain (CIE).22 The signing of such agreements were a watershed in Spanish history, as minority religions which had been persecuted for centuries acquired special status under the law.23

2.3. Cooperation Agreements with Religious Minorities According to Article 7.1 of LOLR some religious denominations, i.e. those who have been granted “well-known roots” special status, are able to establish covenants or agreements with the State. To date, Protestants, Jews and Muslims, as well as Mormons, Jehovah’s Witnesses and Buddhists, enjoy this special status. However, so far, the State has only signed agreements with the Federation of Evangelical Religious Entities of Spain, the Federation of Israelite Communities of Spain, and the Islamic Commission of Spain. These three agreements are treated as ordinary positive law emanating from the Parliament. The terms of the agreements are very similar and provide, among others rights, that: places of worship and burial are inviolable; the Holy Sabbath is a day of rest and may be celebrated on a day other than Sunday if there is agreement between the employer and the employees; all Islamic and Jewish traditional religious festivals may be observed on days other than national Catholic holidays if employer and that Protestantism, Judaism, and Islam were historically rooted in Spain without looking at any data regarding the number of members or houses of worship they possessed in Spain. Even today, the State continues to show great discretion in the concession or denial of such status. The Ministry of Justice’s Advisory Commission on Religious Freedom recognized the “well-known roots” of the Church of Jesus Christ of Latter-day Saints on April 23, 2003. In spite of a large number of members and a long time waiting for recognition, the Ministry of Justice granted the “well-known roots” status to Jehovah’s Witnesses in 2006. One year later, and after seven years since its application, the Federation of Buddhist Communities also joined the same legal status. 22 Law 26/1992, of Nov. 10, Approving the Agreement of Cooperation Between the State and the Islamic Committee of Spain (B.O.E. 1992, 272); Law 25/1992, of Nov. 10, Approving the Agreement of Cooperation Between the Spanish State and the Federation of Jewish Communities of Spain (B.O.E. 1992, 272) and Law 24/1992, of Nov. 10, Approving the Agreement of Cooperation Between the Spanish State and the Federation of Evangelical Religious Entities of Spain (B.O.E. 1992, 272). 23 A. Motilla, ‘Religious Pluralism in Spain: Striking the balance between religious freedom and constitutional Rights’ 2004 Brigham Young University Law Review 575 (2004) p. 577 and A. Fernández-Coronado González, Estado y confesiones religiosas: un nuevo modelo de relación: (los pactos con las confesiones, leyes 24, 25 y 26 de 1992) (Civitas, Madrid, 1995). 272 eugenia relaño pastor employee agrees; special accommodations are made for dietary requirements and fasting times for Muslim and Jewish communities; religious leaders qualify for legal status within the Social Security Service; members of the armed forces may receive religious assistance, including participation in rites and religious activities, and attend places of worship outside armed service facilities in order to fulfil religious duties, when these activities are compatible with the needs of the armed service; Evangelic, Jewish and Muslim education is guaranteed in public schools, and also in private schools so long as it does not contradict the religious ideological framework of the private school; and communities will enjoy other tax exemptions similar to those provided for the Catholic Church. In 1992, when the State concluded the three Cooperation Agreements mentioned above, institutional pressure existed to create fewer agreements with broader federations of denominations rather than a larger number of agreements with individual religious groups. When the State agrees with a large federation, compounded by many religious groups, it becomes difficult to please the special features of each religious community that belongs to the federation. As a result, misunderstandings and tensions among single denominations develop frequently.24 The Islamic Commission of Spain (CIE) is made up of two federations of Muslim communities, both of which have fifty percent representation. Because the CIE is the organ that interacts with the State, the lack of understanding between the two federations that made up the CIE has resulted in significant obstacles to the creation and implementation of the 1992 agreement.25 However, the most striking feature of the three Agreements is how similar their contents are which it is a serious limitation for a real participation of religious minorities. Though all religious beliefs do not face the same problems nor require the same solutions, the reiterative content of these agreements suggests that the government granted a “bill of right” for all religious denominations, subverting the inherent nature of bilateral agreements. The text of the Agreements of 1992 contain uniform standards for FEREDE, the FCI and the CIE (with religious exceptions only on the issues of dietary foods, festivals and holidays, and the safeguarding of artistic heritage, which were provided only for FCI and CIE).

24 I. Martín Sánchez, ‘El modelo actual de relación entre el Estado y el factor religioso en España’ 19 RGDCEE (2009) http://www.iustel.com/v2/revistas/detalle_revista.asp?id=2 visited 19 June 2011. 25 I. Jiménez Aybar, El Islam en España: aspectos institucionales de su estatuto jurídico (Navarra Gráfica, 2004). participation of muslim minorities 273

In addition to that, the religious minorities that signed the 1992 Agreements complain about what they deem unjustified and discriminatory legal treatment in comparison with the Catholic Church.26 The main complaints focus on matters of religious education in public schools, religious assistance in military establishments, hospitals or penitentiaries, and the civil effects of religious marriage and State economic cooperation. While decisions made by the Catholic Church’s ecclesiastical jurisdiction on the nullity or dissolution of marriages are given civil effects, the marital decisions of Jewish and Islamic religious courts are not granted any civil effect. And while the four Agreements signed with Catholic Church in 1979 preserved the state’s obligation to provide religious instruction in all primary and secondary schools “under the same conditions as for other basic disciplines”, the 1992 Agreements only provide access to school grounds for religious minorities, and the availability of classrooms for religious instruction, (depending upon on the number of students).27 The 1996 Convention on Economic System for Evangelical and Muslim teachings states that the educational administration should pay the salary of the religious education teachers chosen by the Evangelical Federation and Islamic Commission. With regard to religious assistance in public centres such as military installations hospitals, penitentiaries, retirement homes, or asylums, it is worth noting that whereas permanent Catholic Chaplaincies offering religious assistance are paid for with state funds, religious minorities with Agreements only enjoy a system of “free access and free exit” consisting of religious figures being able to enter any public centre when their assistance is required, and individuals (members of a religious denomination) being able to leave public centres, with authorization, for the purpose of religious worship. As for economic cooperation between the State and religious denominations, the only beneficiary of some kind of direct economic aid from the State is the Catholic Church. Therefore tax assignment remains an exclusive privilege of the Catholic Church. Minorities with agreements have only the deductibility of donations and tax exemptions.28 In 2005 the

26 The Catholic Church enjoys a number of additional privileges. These benefits derive from four international accords signed with the Holy See in 1979. They cover economic, educational, military, and judicial matters. 27 J.A. Souto Paz, ‘Perspectives on Religious Freedom in Spain’, 2001 Brigham Young University Law Review 669 (2001) p. 687. 28 Article 11 of the Agreements establishes that the strictly religious activities these denominations carry out “will have the right to the other fiscal benefits that the Spanish 274 eugenia relaño pastor

Foundation of Pluralism and Coexistence was launched to provide public financial support to Protestant, Jewish and Islamic federations. The Foundation’s aim is to “contribute to the implementation of programs and projects of a cultural, educational, and social integrational nature”.29 The Foundation does not finance worship services, but rather seeks to benefit religious groups as they carry out activities relating to education, cultural development, and community service.30

3. Participation of Muslim Minorities in Society

At the time of signing the 1992 Agreement, there were 40 Muslim associations registered in the Register of Religious Entities and in 2008 that number got up to 640. In negotiating the agreement, the different communities were pushed to be represented by a small commission who acted as speaker with the Government. The process was fraught with difficulties because of the differing criteria and doctrinal differences between immigrant associations and those associations of Spanish converts. The first main organization representing various associations was the Spanish Federation of Islamic Religious Entities (FEERI). Some members of this organization, who were primarily converts to Islam, left and established a new large entity, the Union of Islamic Communities of Spain (UCIE). There were strong discrepancies between FEERI and UCIE. As a precondition for making a Cooperation Agreement with the Muslims communities, the Government demanded that the negotiations on the Agreement would be carried with a single Muslim denomination. Therefore FEERI and UCIE gathered and the Islamic Commission of Spain (CIE) was set up as the only Muslim organization entitled to negotiate with the Government. The internal problems in the FEERI and discrepancies between the two has led many associations to not be integrated into the CIE. One of the main problems has been that the Islamic Commission has been represented by the same people for 15 years, whose backgrounds failed to reflect

State’s tax code provides at all times for non-profit entities and, in any case, to those benefits granted to private charitable organizations”. Additionally, those faiths that sign bilateral agreements with the State improve their tax and fiscal situations by becoming non-profit entities. 29 Bylaws of the Foundation for Pluralism and Coexistence art. 7 (2005). 30 J.M. Contreras, ‘The direct financing of religious minorities in Spain’, 2007 Brigham Young University Law Review 575 (2007) p. 596. participation of muslim minorities 275 the Muslim plurality derived from immigration. Many Muslims have sought collective representation at municipal level through cultural associations. Since the two main organizations (FEERI and UCIE) act at the national level, currently local Muslims cultural associations are strengthening themselves by joining regional Islamic Councils. These Councils are recognized directly in each region and they must meet the same criteria that any common association. These Councils bring together local communities and many of them form larger federations. One of the task of the Islamic Councils is to channel locals Muslims demands to the two main national Islamic organizations (FEERI and UCIE). Local and regional Muslim organizations are very important channels of dialogue. These associations can intercede in the construction of Muslim cemeteries and in the transfer of land to build mosques; claim that Islam be taught in local schools; intervene when there are conflicts at schools because of the use of hijab or the denial of halal menus for students; and can mediate in the resolution of neighbourhood conflicts. Given the number of such associations, regional governments have implemented specific public policies to organize Muslim representation and to encourage the integration of new immigrant groups who do not feel represented by traditional associations. This has happened in Madrid, the Baleares Islands, Valencia, Murcia, Andalusia and Catalonia. In the latter Autonomous Community, the Cultural and Islamic Council of Catalonia, founded in 2000, which was registered as an association first, and then as a federation, gathered all imams together and created a forum to provide them with the training needed to be represented and recognized by local authorities. Muslim representation in the local and regional administrations has been very important in the integration of immigrants. For example, the Cultural and Islamic Council of Catalonia has representation in the Commission on Immigration Policy set up by the Barcelona City Council. The aim of this Commission is to agree upon and monitor the city’s immigration policies, and it was within the framework of this Commission that in 2002 the Municipal Immigration Plan was launched. The Commission is an entity of participation and intercultural coexistence that focuses on dialogue and interaction, as well as reciprocity, as the mechanisms for mutual accommodation between different cultural groups. The Commission works with social entities that work directly with immigrant collectives, with neighbourhood associations and with religious and leisure centres. The Cultural and Islamic Council of Catalonia, as member of the Commission, works for guaranteeing social cohesion 276 eugenia relaño pastor and coexistence and for managing properly religious plurality (places of worship, religious holidays). Other major federations outside the Agreement with the CIE have been the Spanish Muslim federation, the Islamic Federation of the Balearic Islands, the Murcia Islamic Federation. These three along with the Catalan Council are calling for the renewal of the CIE through a democratic election system that extends the rights of the Muslim community to be represented. Another important step to achieve an effective cooperation with religious groups, it has been the establishment of the Foundation of Pluralism and Coexistence. The Foundation was launched to provide public financial support to Protestant, Jewish and Islamic communities. The Founda tion is a public entity established by Council of Ministers which seeks to achieve substantive equality among religious minorities by supporting measures to fully integrate religious minorities into Spanish society. The Foundation’s resources are used to help minority religions to conduct social-welfare and charity programs, to provide education and dissemination of information about minority cultures by helping those minority cultures become known and disseminated and by training and educating members. Therefore, Spain has decided to spend a part of the national budget to fund projects that contribute to improve social and cultural integration of religious minorities in the country.31 The Foundation does not finance worship services; rather it seeks to benefit religious groups as they carry out activities relating to education, cultural development, and community service. The Foundation promotes religious freedom by seeking to remove obstacles blocking such freedom. This is done by helping well-known rooted (notorio arraigo) religious minorities to conduct social-welfare and charity programs and to provide education about their own culture. The Foundation supports activities to “contribute to the implementation of programs and projects of a cultural, educational, and social- integrational nature”. Since religious beliefs also shape the concept of culture, the problem is when these cultural activities coincide with or are realized within the context of worship activities. Regarding to educational activities, the Foundation promotes three important activities: education and training and thus it is quite important for fully participation of these minorities in society. For example:

31 J.M. Contreras, supra note 30, p. 591. participation of muslim minorities 277

(1) The Foundation support activities and programs oriented toward providing initial and continuing training and instruction to help people enter or re-enter the job market. These programs should not be oriented solely toward education, except for those that use education to integrate at-risk groups. They should also reinforce values like democracy, social justice, and respect for human rights, especially among young persons, because education contributes significantly to reducing xenophobia, racism, anti- Semitism, and intolerance and (2) the Foundation fosters social integration activities. They include not only economic matters but also personal services and assistance, such as healthcare, housing assistance, childcare or family benefits, aid for socially excluded groups, and activities of social reintegration (activities and programs directed at the social inclusion of immigrants; assistance for groups living in situations of inequality or who are at risk of social exclusion, particularly women and youth; and support for the communications media which it is an instrument for promoting tolerance and coexistence among religions).

3.1. Mosques and Cemeteries The Spanish law (article 2.2 General Act on Religious Freedom) recognizes the right of confessions and religious communities to establish places of worship for all persons, nationals and foreigners. In accordance with the Agreement of 1992, mosques and other recognized religious spaces are inviolable and profit from a favourable fiscal arrangement.32 It is estimated that in Spain there may be approximately 400 oratorios in addition to thirteen major Islamic centres.33 In Ceuta and Melilla there have been historically numerous worship places (oratories) In Melilla, in addition to the Central Mosque (1945) there are also twelve small mosques and oratories. The first mosque was built in Malaga in 1982. In Madrid, the Abu Bakr mosque was created in the mid 80’s and in 1992, the Islamic Cultural Centre of Madrid was inaugurated as the largest mosque in

32 There are fiscal policies for those faiths that have signed agreements with the State, as codified in Laws 24, 25, and 26/1992. Article 11 of the Agreements establishes that the strictly religious activities these denominations carry out “will have the right to the other fiscal benefits that the Spanish State’s tax code provides at all times for non-profit entities and, in any case, to those benefits granted to private charitable organizations”. Additionally, those faiths that sign bilateral agreements with the State improve their tax and fiscal situations by becoming non-profit entities. 33 Casa Árabe, Musulmanes en España. Guía de referencia, (Casa Árabe-IEAM, 2009) pp. 26–27. 278 eugenia relaño pastor

Europe until 1997. Since then many mosques have been opened in Spain, especially Andalusia. On the other hand, the establishment of an “oratorio” is one of the main indicators of the active presence of groups of Muslim immigrants. Most of the oratorios open in Spain have been promoted by members of the first generation of immigrants seeking a place to keep links and references of origin. They are spaces that guarantee religious socialization of new generations and place where to express the sense of community. Mosques have been promoted by male adults and parents who want to link the younger generations to the collective values and social practices of the society of origin. Thus, mosques become not only spaces to be religiously socialized but also places where cultural and social activities are organized to reinforce the sense of the Muslim identity. The only requirements for Islamic communities wishing to open “oratorios” and to build mosques is the consent from the Islamic Commission of Spain and the commitment to dedicate the places of worship only to prayer and religious education. Local governments are obligated to provide land for the opening of places of worship, but, in practice, this law is often ignored by local municipalities. The protests of neighbours and resistance of local governments show a major source of social conflict. Many people have a strong prejudice against Islam and they do not want to have a mosque or “oratorio” nearby. At least 55 Spanish cities have wit- nessed conflicts over the construction of places of worship since 1998, particularly, in Catalonia, where there have been many demonstrations against the mosques. For example, in Premia de Mar local authorities closed down a Muslim oratory with a commitment to relocate it because they were concern about a large crowd gather in it. Over time the Muslim community purchased a central location and obtained a license to build the mosque but the neighbourhood protests forced the authorities to place it on the outskirts of the city.34 The displacement and relocation of Muslims worship places out of the city is a serious hindrance for a real participation of these groups in the life of the municipality. Regarding cemeteries, according to the mentioned Agreement, Muslim communities belonging to the CIE have the right to have reserved burial locations in cemeteries. Article II of the Agreement stresses that State

34 X. Etxeberria Mauleon, E. Ruiz Vieytez, T. Vicente Torrado, Identidad islamica en el País Vasco (Instituto de Derechos Humanos, Zarautz, 2007) pp. 202–203. participation of muslim minorities 279

Table 1. Demography case-study of Muslim Population, 2010. Autonomous Muslims Entities Built Used Cemeteries Communities mosques mosques Andalucía 176.177 48 3 36 2 Aragón 28.454 18 0 18 0 Asturias 2.149 2 0 2 1 Baleares 22.585 21 0 18 1 Canarias 64.682 14 0 13 1 Cantabria 1.888 1 0 1 0 Castilla La 36.002 17 0 17 0 Mancha Castillay 12.648 8 0 8 0 León Cataluña 245.222 84 0 80 1 Ceuta 30.110 17 4 8 1 Extremadura 29.819 5 0 5 1 Galicia 5.784 4 0 4 0 La Rioja 9.307 5 0 5 0 Madrid 195.254 65 2 52 1 Melilla 32.744 7 2 3 1 Murcia 50.819 18 0 18 0 Navarra 10.256 7 0 7 0 Valencia 113.595 30 1 27 1 Vascongadas 12.983 10 0 10 0 Total 1.080.478 381 12 332 11 Source: UCIE. shall take appropriate measures for the enforcement of traditional Islamic rules on burials and funeral rites to be performed with the intervention of the local Islamic Community. With the exception of Ceuta and Melilla, few burial place for the deceased Muslims exists. Many Muslim groups opt for repatriation to their places of origin, especially the Muslim citizens with Moroccan background. There is a large network of banks offering services through insur- ance repatriation. The increasing number of Muslim immigrants has created the need for new spaces for cemeteries. Agreements between Autonomous Communities and UCIE have set up new places in existing cemeteries, such as Madrid, Valencia, Malaga, Zaragoza and Palma de 280 eugenia relaño pastor

Mallorca.35 There are also negotiations between Muslim communities and municipalities to reconcile the health regulations in force with the Islamic funeral rites. For example, in April 2007, they were opened specific places in local funeral homes to conduct Islamic burial practices in Barcelona. It also has been developed a protocol for hospitals to take care of Muslim patients who die in hospitals to be treated in accordance with their religious beliefs.

3.2. Education The presence of young Muslims in schools has been increasing since the 1980s. The number of Muslim students has increased due to family reuni- fication or the birth of Muslims in Spain. This trend has helped to increase the visibility of Islam in schools. Most Muslim students attend public schools where, according to the law and under certain circumstances, they should be taught Islam if they demand it. In the area of education, the Cooperation Agreement guarantee the Muslim communities access to school grounds as well as the availability of classrooms for religious instruction under the direction of Muslims teachers. Islam education in public schools will be taught by teachers proposed by the Islamic Commission and accepted by education authorities when there are more than ten students. In 1996 the State approved the curriculum for Islamic religious instruction in compulsory primary and secondary education but only recently it has been implemented. There have been incorporated into the primary schools only 35 teachers selected by the Islamic Commission and appointed by the State. In the opinion of Muslim communities, teaching Islam in public schools is scarce, much lower than it demanded. In 2007, 120,000 students applied for the teaching of Islam as a religion and only a 10 per cent received it. According to Muslim associations, the delay in the selection of teachers was due to the public authorities’ lack of interests and according to the Government the delay is due to disagreement between the two main Muslims federations on submitting a shortlist of teachers. Finally, religious instruction at university level is almost zero. Therefore although the 1992 Agreement between the State and the Islamic Commission of Spain guarantees the right of Islamic education to Muslim students in both public and private schools, in practice

35 Casa Árabe, supra note 33, p. 32. participation of muslim minorities 281 many schools do not provide this opportunity and local governments do not give much priority to Islamic education.36 For this reason, many Muslim parents prefer to seek for a religious education for their children outside school hours, either in mosques or at local Islamic cultural Centers.37 This means that the religious characteristics of the Muslim population are not present in schools, thus denying the existing religious diversity in society. It is very difficult to educate about cultural and religious diversity if the school system obstructs the teaching of religions other than Catholicism, the religion of the majority. On the one hand, the fact that students belonging to the majority will not learn about other religions, could fuel their bias against them. On the other hand, for Muslim students, the difficulty of obtaining religious education in their schools could convey a message of exclusion from society. Another issue related to education and participation of Muslim communities has been wearing headscarves in schools. Several cases regarding the wearing of headscarves have been resolved while others are still pending in court.38 Each school has the authority to decide whether or not to allow the wearing of headscarves, with some schools banning their students to wear the veil. When female students have dropped out of school for this reason, the central government or regional authorities have demanded her readmission because the constitutional right to education must prevail over the internal rules of the school.39 Until now the right

36 The Islamic religious education curriculum in public schools was published in January 1996. In April 1996 the State and CIE signed the Convention on the appointment of religious teachers and financial system for Islamic religious education in primary schools and secondary schools. CIE is in charge of appointing the religious faculty and administration should pay wages. The Convention was not implemented until 2002 because of internal problems in the CIE. 37 Casa Árabe, supra note 33, p. 42. 38 Last year Najwa Malha, a Spanish Muslim student girl was dismissed from a secondary school in Pozuelo (Madrid) from ignoring the internal rules that forbade the wearing of headscarves. She was transferred to another schools where she could wear the hijab. The Education Directorate of the Autonomous Community of Madrid upheld the school’s decision. Currently the judicial appeal against the administrative decision is pending in court. 39 In 2002, in the city of San Lorenzo de El Escorial, a female student had never attended classes in a private school financed by public funds because the director forbade her to wear her Islamic headscarf. The school reported to the Secretary of Education of the Autonomous Community of Madrid and the Secretary of Education ordered that the student had to be admitted in another school without any condition concerning her headscarf. 282 eugenia relaño pastor

Table 2. Demography case-study of Muslim Population, 2010. Autonomous Communities Students Teachers Religious leaders Andalucía 16.801 10 0 Aragón 3.028 2 0 Asturias 275 0 0 Baleares 3.213 0 0 Canarias 5.821 0 0 Cantabria 249 0 0 Castilla La Mancha 3.826 0 0 Castillay León 2.095 0 0 Cataluña 31.165 0 0 Ceuta 5.301 10 0 Extremadura 3.164 0 0 Galicia 748 0 0 La Rioja 1.380 0 0 Madrid 18.713 0 0 Melilla 5.749 11 0 Murcia 7.588 0 0 Navarra 1.229 0 0 Valencia 8.013 0 0 Vascongadas 1.636 0 0 Total 119.994 33 0 Source: UCIE. to wear a headscarf has not been an important legal concern in Spain. Both litigation and legislative initiatives on the issue have been minimal. However, due to increased attention by mass media on the wearing of headscarves, and the banning of headscarves in several municipalities,40 it is likely that more such cases will be brought before the courts. The challenge of future cases will be to make compatible the free exercise of religion with the protection of the legal elements that integrate what is known as ‘public order’. Protection of the rights and freedom of others

40 In 2010 a few municipalities (most of them in Catalonia) have prohibited women to use this clothing and the PP (Right Political Party) presented a Draft Bill in the Senate to urge the Government to prohibit access to public spaces with a burqa or niqab. A proposition was adopted with 131 votes to 129. However the Congress stroke down the Draft Bill (on PP’s initiave) to ban the burka from public sphere in July 20th 2010. participation of muslim minorities 283

(one of the element of the public order protection) is not sufficient reason to restrict the exercise of religious freedom.41 Finally, it is important to note the increasing participation in civil society of students and young Muslims associations. On the occasion of 11-M and, also, to avoid stereotyping the identification of Islam and terrorism, numerous associations have been created, such as the Iranian Muslim Students Association, the Association of Madrid and Tayba Muslim Youth, the Moroccan Association of University Students. These associations registered as such in the Register of associations in the municipalities have a sociocultural purpose for young people. By including the word “Muslim” in the name of the association and being open to anyone who wants to participate (whether Muslim or Spanish), they show their desire to open participation in society. There has been an increased participation of young Muslim women more than men, so one of the main issues these associations are working on is the role of Muslim women in European societies. Furthermore, this local involvement is reinforced with national and international contacts. For example, Forgers of Life is a youth social movement represented in different Spanish cities (Barcelona, Mataró, Ceuta, Valencia and Granada) and connected with representatives of the same organization in other European countries (Life Makers) and Arab countries (Sunna ‘al-Hayat). In this way, they contribute to creating new transnational dynamics, in some cases inspired by the Egyptian televangelist Amr Khaled, who has become a great leader in the media thanks to Iqra’ satellite TV.42 The appearance of these youth associations has qualitative changed the existing Muslim associations until the 90’s. Traditional classifications distinguished between Muslims settled before democracy (mostly from Syria, Palestine, Egypt and Jordan) and Spanish converts. Afterwards, especially in the last two decades, the associations have been largely formed by immigrants in Spain. Currently, these associations are formed by children of immigrants as wells as Spanish nationals who are interested in knowing about their religion. The members of these associations do not wish to be portrayed as extremists or fundamentalist. Rather, they wish to be recognized as part of Spanish society.

41 E. Relaño Pastor and A. Garay, ‘The fear of the ECHR to the islamic veil: Leyla Sahin v. Turquía and the Islamic veil’, 2 Annuaire Droit et Religion, (2007) p. 40. 42 Casa Árabe, supra note 33, p. 45. 284 eugenia relaño pastor

4. Final Remarks

In spite of the 1992 Agreements that guarantee religious pluralism by law and the Spanish legal framework which it guarantees a high protection of religious liberty, the Muslim community lacks the infrastructure that would lead to a normal religious life and a full participation in a cultural, economic and social life. Religious demands have resulted in several con- flictive situations between Muslims and non-Muslims, public administrations and the private sector. The building of mosques and education are probably the most important religious demands. But the protests of neighbours and resistance of local governments prevent from achieving an effective participation of these religious communities. Often social and economic participation rights of Muslim minorities often depend on the will of the parties that determines the effective legal protection. For example, the 1992 Agreement also recognizes the right of Muslim members of the Army to receive assistance and to participate in religious activities and religious rites but it is subject to receiving the approval of superiors and it has to be compatible with work. Or with regard to dietary prescriptions, the Agreement merely states that the public authorities shall fulfil a diet according to Islamic religious precepts for those in schools or prisons, hospital or nursing homes who request it. Therefore there is not a particular obligation to do so. Although the Spanish legal system facilitate the flourishing and protection of Muslim communities, the State has to fully comply with the minimum core obligation to ensure the obligation to respect, to protect and to fulfil the right of Muslims believers to participate and take part in cultural, economic and social life.43 Spain has ratified the Framework Convention for the Protection of National Minorities. This Convention recognises the right of persons belonging to minorities to preserve and develop their own cultural heritage and identity and their right to take part fully in mainstream cultural life. However, despite the fact that Spain is bound by this Convention, there is an institutional lack of sensitivity to the cultural background and specific needs of the Muslims population in the public sphere, specifically on the protection and promotion of cultural and religious diversity. As a matter of example, during summer 2010 there was an intensive debate

43 According to the CESCR General Comment No. 3 (1990) on the nature of States parties’ obligations. participation of muslim minorities 285 about wearing burka or niqap in public spaces. A few municipalities prohibited women to use this clothing44 and the PP (Right Political Party) presented an initiative in the Senate to urge the Government to prohibit access to public spaces with a burqa or niqab. Nowadays ongoing controversies related to the wearing of a headscarf or burka, the building of mosques or the demand for Muslim religious education have uncovered two main streams in Spanish society intent upon curtailing religious and equality freedom in Spain. At one end of the spectrum are the secularists, standing for the removal of any religious values from the public sphere, wilfully ignoring religious dimensions meaningful to some parts of society. At the other end is mainstream Catholicism, relying on the historical and collective legitimacy of Catholicism to protect the status quo of the Spanish Catholic Church. Any of these approaches is the right one to foster religious pluralism and to guarantee the full participation of Muslims communities in Spanish society.

44 In May 2011 Lleida became the first Spanish city to approve a motion to veto the burqa and niqab in buildings and public facilities (civic, educational, cultural and sport- ing). Fines range from 30 to 600 euros. The motion specifies that these restrictions or prohibitions that may affect both service providers but it provides some exceptions because of the exercise of certain professions, health and safety at work or other reasons.

A SURVIVING TREATY: THE LAUSANNE MINORITY PROTECTION IN GREECE AND TURKEY

Konstantinos Tsitselikis*

1. Introduction: The Legacy of Minority Protection in Greece and Turkey

Greece’s and Turkey’s historical trajectories cross each other as inheritors of the disintegration of the Ottoman Empire. Nation-building and inter- state competition made both frères ennemis.1 The establishment of national states in the Balkans and the diffusion of nationalism among the various religious and linguistic groups, particularly during the wars of 1912–1923, resulted in serious inter-communal rivalries. The dissolution of the Ottoman Empire transformed the dominant Muslim groups into non- dominant groups within the new national states of the Balkans, and the criteria for the protection of the Muslims in the emerging states was set under the auspices of the Great Powers. The Protocols of London of 1830 signed by France, Great Britain, and Russia set forth as a condition for Greek independence guarantee of the personal security and property rights of Muslims. The same criterion was applied at the Berlin Congress of 1878 in the recognition of new Christian states. The classification of a cohesive ‘Muslim’ group from a legal perspective was inherited by the new nation-states that emerged in the Balkans, namely: Serbia, Bulgaria, Romania, and Greece. In the new ideological, political, and institutional context, Muslims became a minority subject to differentiated legal treatment well before the establishment of the minority protection system by the League of Nations. Pre-modern cultural diversity, which may be understood as forms of hybridism and syncretism, began to fade once the region became exposed to European notions of ethno-national purity.2

* Associate professor, University of Macedonia, Greece, [email protected]. 1 O. Anastasakis, K. Aude Nicolaidis, K. Öktem, ‘Introduction: The Long Shadow of Europe’, in O. Anastasakis, K. Aude Nicolaidis, K. Öktem (eds.), In the Long Shadow of Europe. Greeks and Turks in the Era of Postnationalism (Martinus Nijhoff, Leiden/Boston, 2009) p. 1. 2 P. Haslinger, “Pre-modern Balkan Diversity and Modern Territoriality, Multiculturalism and Conflict”, 5 Jahrbücher für Geschichte und Kultur Südosteuropas (2003) p. 15. 288 konstantinos tsitselikis

Millets3 were seen as ‘nationalities,’ especially in the context of intensive diplomatic negotiations regarding the future of the former Ottoman lands. This meant that in time the term ‘minority’ began to acquire the meaning formerly attributed to millet. This also entailed a process of the transformation of perceptions within the Muslim communities in which members began to envisage themselves as minorities, endorsing ideologies which evolved into Turkish nationalism or (as in Bosnia) into other distinct forms of nationalism. Christian majorities’ national character was also formed through a long process of ‘nationalisation’ of religion and language, and Muslims were seen as alien element. After the Greco-Turkish war of 1919–1922, the end of the Greek territorial expansion, the collapse of the Ottoman Empire and the emergence of Turkey as a national state were discussed at the Lausanne Conference, the outcome of which established a new era for the two neighbours. The establishment of modern Turkey was founded on a pure national character and non-Muslim minorities were seen as entities not participating at this process. The nation-building process through ethnic and linguistic homogenisation was based on ‘Muslim millet’: The Turkish nation was formed through the combined elements of language (Turkish) and Islam and the fictive idea of a common descent of the ‘people’. Nonetheless, the modernisation process of the founder of the Republic, Kemal Ataturk, was based on the idea of a rigid secularism (laiklik) and expression of religious affiliation as perceived during the Ottoman times was eradicated. In effect, in both Greece and Turkey, religion (combined with language) played a key role in the formation of national majority identity. As a result, the ethno-religious minorities were seen as undesirable relics of the past, which at least, should be tolerated. The Lausanne conference through which Greece, Turkey and the Great Powers regulated the long-lasting question of the collapsing Empire and set the foundation of the New Era in the region was decisive for the fate of minorities by two means: 1. The elimination of the reciprocal Greek-Turkish minorities through a population exchange, a direct outcome of the Greek-Turkish war of 1919–1922. The Convention of Lausanne rendered de jure what in many

3 In the Ottoman Empire Greek-Orthodox, Armenians and Jews were the main ethno- religious communities (millets) put under a specific legal status enjoying extended internal educational and religious autonomy the content of which varied in time. See Κ. Barkey, Empire of Difference. The Ottomans in Comparative Perspective (Cambridge University Press, Cambridge, 2008). the lausanne minority protection in greece and turkey 289

respects was already a de facto reality for tens of thousand Greece’s Muslim refugees and more than a million Greek-Orthodox who had been subjected to violence and fled Asia Minor and Eastern Thrace for Greece (actually, the population exchange constituted a massive ethnic cleansing operation that put an end to the Greek-Ottoman/Turkish armed conflict that had commenced a century before); 2. The regulation of the legal status of the remaining minorities,4 or exempted populations from the exchange. This ambivalent solution was materialised through two legal instruments, the Convention of Lausanne of January 31st 1923 and the chapter on minority protection of the Treaty of Lausanne which was concluded six months later, on the 23rd of July. The Convention of Lausanne stipulated a mandatory population exchange on grounds of religion. Greece’s Muslims and Turkey’s Greek Orthodox would leave their respective homes and face a de jure prohibition on return (article 1 paragraph 2 of the Convention), which was included at the behest of the Turkish delegation: As from 1st May 1923, there shall take place a compulsory exchange of Turkish nationals of the Greek Orthodox religion established in Turkish territory, and of the Greek Orthodox religion established in Turkish territory, and of the Moslem religion established in Greek territory. These persons shall not return to live in Turkey or Greece respectively without the authorisation of the Turkish Government or of the Greek Government respectively. The Convention was applied to 350,000 Muslims and 1.2 million Greek- Orthodox who became refugees in Turkey and Greece, respectively. For political reasons envisaged by both sides, article 2 of the Convention of Lausanne exempted from the exchange the Muslims of Western Thrace and the Greek-Orthodox of Constantinople. According to article 14 of the Treaty of Lausanne the Greek-Orthodox population of the Aegean islands Imvros (Gökçeada), and Tenedos (Bozcaada) were also exempted. During the implementation of the population exchange, Muslims of Albanian origin in Greece and Greek-Orthodox Arabic speakers in Turkey were extra conventionally exempted too. Lastly, the Treaty of Lausanne, in a special chapter, regulated the position of the minorities (exempted from the population exchange) in Turkey

4 Already the Armenian communities of the Ottoman Empire had suffered massacres and massive expulsion (1915). The decimated Armenian communities of the Turkish Republic were not included in the population exchange with Greece, but they were subject to the minority protection established by the Treaty of Lausanne. 290 konstantinos tsitselikis and Greece through identical provisions. What will be discussed in the present article is the normative content of the minority protection regarding minority identity and rights related to socio-economic participation attributed through religion. Recipients of these rights are Muslims in Greece and non-Muslims in Turkey, reflecting millet (in Turkey) or reverse millet (in Greece) percept. After almost a century of implementation of the Treaty, minority protection law was implemented through minority policies which primarily highlighted ‘national interests’. Both states, having the authority to name a situation as falling under the state of necessity, for national security reasons, legitimated the political power to apply exceptional law (status of exception5) regulating the position of minorities in derogation from Rule of Law. The ‘millet-like’ legal perception embraced by Turkey and Greece vis-à-vis their Lausanne minorities was embedded in the mono-ethnic political culture of each nation-state in which minorities were long-considered by law or jurisprudence as alien elements. In that context, ‘exceptional law’ on minorities – often violating the Treaty – was seen as normal or acceptable. Thus, membership to a minority community is thereby regarded as an a priori ground of question- able loyalty to the state and the ideal citizen. Accordingly, non-Muslims in Turkey were seen as ‘local foreigners’ (yerli yabancılar) and Muslims in Greece were seen as ‘of alien descent’ (allogeneis). These legal categories, which were activated by the two governments in certain political circumstances, entailed and implied discriminatory practices. Consequently, minorities were deemed to be of deficient ability to participate in the economic and political life and therefore to the broader society on a basis of equality. ‘National interests’ and ‘national security’ became a predominant and convenient principle that allowed governments of both states to take decisions and implement minority policies even contra legem. As Greece and Turkey each have a ‘kin-minority,’ both act as a ‘kin-state’ and as a ‘state of citizenship’ (or ‘host state’) creating a scheme that favoured political manipulations of national and international law and legal misin- terpretations of the Treaty of Lausanne through the notorious principle of reciprocity. What is argued here is that both governments, with qualitative and quantitative differences, according to the historical context, were not interpreting and implementing the Treaty in light of the evolving international human and minority-rights law but according to their ideological and political interests.

5 See G. Agamben, State of Exception. Homo Sacer II (University of Chicago Press, Chicago, 2005). the lausanne minority protection in greece and turkey 291

In all the fields of protection, both states fell short in implementing the Treaty in favour of minority’s interests and, through time, accused each other of violations.6 Very often not only the violation but the denuncia- tion of a violation was put in a broader political context of bilateral confrontation. We are not going to make a qualitative or quantitative survey of the deficient implementation or violation of the Treaty nor a comparison between the states regarding which is more or less ‘democratic’ or ‘civilised.’ In effect, what is agreed is that the right to participate in socio- economic life was ignored or instrumentalised in a broader bilateral political antagonism of the two states.The treaty protects the right to participate in domestic affairs of the minority, a milieu that has its roots in the Ottoman ethno-religious communities (millet). The fields of protected participation regard religion, education and community property. One can say that, from a contemporary perspective this legal protection created a virtual obligation for the members of the minority to stay within the community. On the other hand, the Treaty guarantees the minimum protection for the members of the minorities not to be discriminated against by the state and to be treated on the basis of equality. So a ‘latent right’ to participate in the broader society’s economic, political and societal life is established for the minority members through citizenship, against the background of the normative field of the Treaty. Lastly, at a third level, both kin-states grant prerogatives to the members of their kin-minority (visas, salaries, fellowships etc.) creating an antagonistic field of enjoyment of ‘rights to participation’ vis-a-vis the internal minority society and the broader socio-economic life.

2. The Treaty of Lausanne: A Heavy Normative Content

The minority protection concept, as formulated in legal instruments in late 19th and early 20th century regarding Greece and other Christian Balkan successor-states of the Ottoman Empire as well as Turkey by 1923, reflects precedent millet-like precepts, based on religion as a criterion for attributing minority rights. The Treaty of Constantinople (1881) and the Convention of Athens (1913) continued this legal and ideological thread,

6 Worth noting, however, is that no government activated Article 42 Para. 2, according to which states and minorities have the right to put any relevant dispute under international arbitration despite the countless reciprocal accusations that Greece and Turkey addressed to each other for not observing the Treaty. 292 konstantinos tsitselikis establishing the first generation of minority protection in Greece: protection of minority community organisational structures was the main concern of protection. Today, both Greece and Turkey are bound by the Treaty of Lausanne: Articles 37 to 45 of the Treaty attribute rights for Muslims (in Greece) and non-Muslims (in Turkey). The members of the community are protected so as to preserve their identity and participation in their own community institutions: community schools, community administration and community property. At the same time, the clause of non-discrimination and equality for all citizens facilitate the participation in the social and socio- economical life of broader society. The rights of the minority and the concomitant obligations of the state are as follows:

• Equality without any discrimination (article 38 paragraph 1) • Freedom to exercise civil and political rights (article 39 paragraph 3) • Right to enjoy matters of personal and family character according to the traditions of the minority (article 42 paragraph 1) • Non-performance of acts contrary to Muslims’ religious beliefs or customs (article 43 paragraph 1) • The limitation of the state to impose restrictions on the free use of any language in publications, in private, or public meetings (article 39 paragraph 4) • Right to found private educational, pious, and religious institutions with free use of the minority language (article 40) • The state obligation to support public minority schools, and permit pious and religious institutions (article 41) • The right of the Greek language to be taught as a language subject in the public minority schools (article 41 paragraph 1) • Members of the minority’s right to use their own language in oral proceedings in courts (article 39 paragraph 5) • Freedom of worship (article 38 paragraph 2) • The government obligation to provide support to any religious foundation (article 42 paragraph 3)

This minority protection survived the abrogation of the League of Nations minority protection system in 1945. The Treaty also survived all progress that was made in human rights and minority protection international law. The Treaty remained impermeable from the radical progress that formed new minority protection law, especially after 1995 in the European context, and showed a solid resistance to any attempt to amend it. Democ ratisation and Europeanisation (in a large sense, i.e., the process of the lausanne minority protection in greece and turkey 293 convergence with legal norms of European origin, EU Law and the Council of Europe) were progressively shaped through parallel paths for Greece and Turkey, that affected human and minority rights in different ways. From the very beginning of the institutional establishment of Turkey in 1923 and the consolidation of the borders between the two countries, a common minority protection legal framework was set up. Greece became a member state of the EU in 1981 (then the European Economic Commu nity) while since 2004 Turkey is under a negotiation process to join the EU. Both are member states of the Council of Europe and subject to the jurisdiction of the ECtHR. Lastly, both are not bound by the Framework Convention on National Minorities or the Charter on Minority Languages. The Treaty of Lausanne thus remained the only international instrument regulating the position of minorities through the religion criterion in both countries. Strong political and national feelings shaped law and policies that moulded both countries’ ability to accept new international and European human and minority rights obligations. In effect, the content of articles 37–44 of the Treaty was developed over time only through political considerations in favour of ‘national interests’. For example, the Treaty provides for education in the language of the minority, but after the 1950s the minority schools in both countries became bilingual through a balance of hours/per language/per subject. This development was carried out not out of educational concerns but due to a political aim to strengthen the official language. As noted, according to the Treaty of Lausanne, minority rights are attributable only through religion. Consequently, linguistic, ethnic or national characteristics, of the minority groups that would have evolved over time are not taken into consideration by the law. This old-fashion legal framework was, and still is, interrelated to the Greek-Turkish political antagonisms that historically were exacerbated due to the Cyprus question (1955-today). As Christos Rozakis points out, in the post-World War II period, the application of the provisions of the Lausanne Treaty and treatment of the minority more broadly fluctuated in response to the ebb and flow of Greek-Turkish relations.7 Indicatively, in 1996, a few years after the programmatic declaration of equality before the law of Muslims as Greek citizens, a UN Special Rapporteur commenting on the application of the Treaty of Lausanne found that:

7 Ch. Rozakis, ‘The International Protection of Minorities in Greece’, in K. Featherstone & K. Ifantis (eds), Greece in A changing Europe: Opportunities and Constraints, (Manchester- N. York) p. 105. See also A. Alexandris, ‘The Historical Framework of the Greek-Turkish Relations’, (in Greek), in The Greek-Turkish Relations. 1923–1987 (Gnosi, Athens, 1991) pp. 31–172. 294 konstantinos tsitselikis

a static, unsatisfactory and prejudicial situation, especially in the religious sphere. The Muslim community in Thrace is beset with serious tensions and restrictions regarding the appointment of muftis, administration of waqfs and religious teachers. Priority should be given to satisfying the legitimate religious needs of the Muslims of Thrace, calming the present religious tensions and finding a way to defuse the situation that is acceptable to both the Greek authorities and the representatives of the Thracian Muslims. […] The Special Rapporteur also emphasizes that the status of the Muslims of Thrace should not be subordinated to considerations concerning Turkey, and strongly urges the parties involved to comply with their international undertakings, especially the Treaty of Lausanne.8

3. The Fields of Minority Protection

As noted above, the Treaty of Lausanne provides for clear-cut minority protection fields that include language, religion and community property on a communal basis, aiming at protecting the domestic, socio-economic sphere of the minority and only to a lesser extent to guarantee a right to participation in the broader society. Legal protection of the abovementioned fields was of major importance for the conservation of the minority communities’ identity. What really mattered was that socio- economic participation in the minority affairs through these rights was guaranteed. On the contrary, rights regarding the participation in the broader society were often seen as a Trojan Horse aiming at assimilating the minority’s identity. It is only lately that a discussion on a convergence of global human rights and minority protection is open in both countries.

a. Language and Education Minority education in both states consists of bilingual schools (minority language/official language), although the Treaty of Lausanne provides for education ‘in the language of the minority’ and for ‘the teaching of the official language of the state’. No special regard is given to minority education in ‘lesser used languages’ within the minorities, such as the Pomak/ Bulgarian in Greece and the Arabic in Turkey. Today minority schools

8 A. Amor, Human rights questions including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or belief, Interim Report on Greece, A/51/542/Add.1, 7.11.1996 (Office of the UNHCHR, Geneva) para. 154 and 140. the lausanne minority protection in greece and turkey 295 operate for the Greek-Orthodox minority in Istanbul and for Muslims in Western Thrace (in Greek/Turkish). Minority schools also exist for the Armenian and the Jewish minorities in Turkey. Teachers of the curriculum in the minority language are from the minority, while teachers for the curriculum in the official language are from the majority: ‘Christians’ in Greece, ‘Muslims’ in Turkey. A series of acts and decrees implements articles 40 and 41 (see Annex) of the Treaty through a narrow interpretation of educational autonomy. In both states minority education constitutes a hybrid semi-private and semi-public legal character (Acts 694/1977, 695/1977 etc. in Greece and Acts 625/1965, 6581/1987 etc. in Turkey). The limits of public/private character of minority schools are uncertain: gradually it went from the community sphere to the state authority to manage the school. Uncertainty over the legal character of minority schools facilitated states to exert control over the minority education. Especially in Greece, the school boards lost their right to choose their teachers, the states appoint with no approval the teachers of the curriculum in the official language, the vice-principals, always coming from the majority, are given by law more powers than the minority principal.9 Minority education in both countries became a field of confrontation for Turkish and Greek nationalism. For decades the ideological control of teachers and the curriculum was of major importance for both states which undertook many initiatives and resources for this purpose instead of developing the quality of the education provided to minority students. A contradiction of major importance, however, remained unresolved: if public schools are the vehicle for transmitting knowledge and ideology that forges identities, minority schools have to be neutral and subject to constant control for not fostering any other minority identity but a religious identity. As identity issues are a hidden agenda for minorities, State interventionism within the domestic affairs of the minority affected the quality of minority education. Through time, the latter followed on a different path when compared to mainstream public and private schools. Actually, in both minority educational systems, the scope and means of the educational process is not clear, as they are not designed in the light of modern scientific pedagogical research. Thus far, little has been done in

9 L. Baltsiotis & K. Tsitselikis, ‘The minority Education of Thrace, Legal Status, Problems and Perspectives’, (in Greek), in A. Fragkoudaki & Th. Dragona (eds.), Addition vs. Subtraction, Multiplication vs. Division. The Reformative Intervention to Minority Education of Thrace, (Metaihmio, Athens, 2008) pp. 57–87. 296 konstantinos tsitselikis view to implementing the Treaty according to new pedagogical research and recent educational needs. Minority school graduates often have fewer opportunities for social inclusion and economic success, especially when they come from a labour or agricultural milieu. The narrow communitar- ian character of the schools and the tight state interventionism often limit the quality of education. The challenge for minority education remains social inclusion and success for those who graduate from minority schools within the average national margins. Preserving minority language-identity and achieving social inclusion and success on the basis of personal choice would need to be governed by an inclusive and carefully designed legal framework.

b. Religious Freedom, Religious Leaders Religious freedom in both states is placed under the general legal frame as set by constitutional law and the relevant international law (for instance article 9 of the ECHR). Greece and Turkey have a different starting point regarding their relation to religion: Greece endorses religion in the public sphere and disposes an official ‘prevailing religion’ while Turkey is in theory a secular state. In that context, Islam in Greece is recognised officially and the operational bodies of the Muslim minority (e.g., the Moufti offices) enjoy the status of public legal bodies thus far only in Thrace and to a lesser extent in the Dodecanese islands. The position of minority religions in Turkey, as governed by the Lausanne Treaty, is under a peculiar status: Turkey according to its constitutional order should be a secular state and neutral towards religion. Nonetheless, gradually and especially after the 1980s Turkey endorsed Sunni Islam as the official religion of the State putting minority religions in a disadvantaged position. Apart from the general protection of minority religion, the Treaty provides for the respect of religion a source of law in personal status. It refers to the matter as follows (Article 42, para. 1): ‘The [Turkish/Greek] government undertakes, as regards [non-Muslim/Muslim] minorities in so far as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities.’ Hence, in line with pre-established internal law, Article 42 of the Treaty of Lausanne can be seen as constituting the legal basis for the application of religious law in personal matters. In Greece, the religious jurisdiction has remained intact up to today. Three Mouftis are appointed by the government as heads of the respective offices in Komotini, Xanthi and Didymotiho, all in Thrace. Despite being the spiritual leaders of the the lausanne minority protection in greece and turkey 297

Muslim communities, the Mouftis have special jurisdiction over family and inheritance matters. Their legal status, as sharia judge, was in accordance with the 1881/1913 international treaties and today is governed by Act 1920/1990. The three Sharia Courts of Thrace would have in theory concurrent jurisdiction with civil courts and their decisions should not contravene the Constitution and the European Convention of Human Rights. The compatibility to fundamental principles of human rights (i.e., gender equality) is one of the most controversial issues that the Moufti’s jurisdiction raises and remains unsolved thus far.10 It is not clear what the official legal stance is on the matter by the Greek government, especially during recent years (2010–2011), when the Moufti’s jurisdiction is under consideration. During recent decades, the formulation ‘regulation of family or personal status in accordance to the minority’s customs’ has been deemed to not constitute a legal basis for a special sharia jurisdiction. However, the following incident shows that religious jurisdiction of the Lausanne minorities stems from article 42. In the beginning of the modern period of minority protection, in Turkey, after being exposed to direct political pressure, in 1925, the minorities signed a declaration renouncing Article 42 of the Treaty of Lausanne. The Greek government reacted and denounced this violation of article 42.11 Henceforth, the jurisdiction of the community religious courts of Armenians, Greek- Orthodox and Jews was abolished and the Turkish Civil Code was applicable to all Turkish citizens. Another issue regards the mode of selection or the legal personality of the religious leaders in both countries. In the 1980s, when both the Mouftis of Komotini and Xanthi passed away and should have been replaced, Greece and Turkey attempted to control the selection procedures. The Greek government amended the law so the Moufti should be appointed, whereas the Turkish foreign policy supported the idea of elections. Since 1990, two parallel Mouftis, one appointed (acting also as a judge) and one elected by a limited electorate operate in Xanthi and Komotini reflecting the Greek-Turkish antagonism over the organisational structures of the minority. The refusal by both Greek and Turkish governments to bring the

10 Y. Ktistakis, The Holy Law and the Muslim Greek Citizens. Between communitarianism and Liberalism, (in Greek), (Sakkoulas pub., Athens/Thessaloniki, 2006), K. Tsitselikis, ‘Applying Sharia in Europe: Greece as an Ambivalent Legal Paradigm’, Yearbook of Muslims in Europe, 2010: ΙI, p. 663. 11 Al. Alexandris, The Greek Minority of Istanbul and the Greek-Turkish Relations 1918–1974 (Centre for Asia Minor Studies, Athens 1992) p. 138. 298 konstantinos tsitselikis

Moufti issue back to normality exacerbated the tension surrounding the minority question.12 In Turkey, the legal position of the Ecumenical Patriarchate of Istanbul perpetuates a twofold problem: The first issue is the refusal by the Turkish state to accommodate its legal personality as a minority body and the refusal to recognise the title ‘Ecumenical’ The second consists of the refusal to permit the re-opening of the theological school of Halki (Heybeliada) and brings up one of the most important issues regarding religious freedom of the Greek-Orthodox minority in Turkey. Moreover, other non-Muslim minority groups were not recognised as such, so they were not covered by the Treaty of Lausanne, although they claimed to be so (such as the Syriacs or the Protestants). Religion in all minority groups played a key role in the consolidation of a respective national identity (Turkish for the Muslims in Greece, Greek in the Greek-Orthodox in Turkey, etc). Therefore, religion rights are deemed to be the hard core of the minority protection according to the Treaty of Lausanne. However, the recognition of these minorities strictly as of religious character overshadowed the possibility for members of the minorities to express their ethnic affiliation freely: in times of tension minorities would be seen as an ‘enemy within.’ On the other hand, law and policies served a millet-like perception in which religious leaders of all minorities still are legitimized as political leaders as well.

c. Community Foundations (Vakoufia, Vakıflar) The communal foundations, the vakf, were inherited by both Greece and Turkey from Ottoman law. These are pious institutions, the income of which is attributable to the minority communities or to the members of the minorities. Their real property comes from donations (to the vakf,

12 The two elected Moufis were condemned by Greek penal courts for having committed ‘pretention of religious authority’. The respective cases ended to the ECtHR, which found violation of article 9 (freedom of religion) in the following cases: Serif v Greece, 14 December 1999, ECHR, no 38178/97, and Agga (2) v Greece, 17 October 2002, no 50776/99 and 52912/99, ECHR, , Agga v Greece (No 3), 13 July 2006, ECHR, 32186/02, and Agga v Greece (No 4), 13 July 2006, ECHR, no. 33331/02, all visited on 12 September 2011. the lausanne minority protection in greece and turkey 299 so the church, the school or the mosque per instance), which can be accumulated. Article 40 of the Treaty guarantees, for the members of the minorities, that they will enjoy ‘the same treatment and security in law and in fact as other Turkish nationals. In particular, they shall have an equal right to establish, manage and control at their own expense, any charitable, religious and social institutions, any schools and other establishments for instruction and education, with the right to use their own language and to exercise their own religion freely therein.’ The vakf presupposes a legal link to the relevant minority community. According to the Treaty, a vakf is ‘established, managed and controlled’ by the minority. Therefore, minority foundations should be attributable to a broader minority entity, belonging to what the Treaty recognises as ‘Muslim’ and ‘non-Muslim.’ This was the ‘community,’ a legal entity recognised in the Ottoman times comprising the overall millet internal organisational structures, like the central Councils and the committees with specific authority (on school matters, property administration etc.). These legal entities with a strong political power found themselves in a legal vacuum, as they could not find their place in the classical divide of the public/private sphere according to the constitutional order of both Greece and Turkey. Thus, the ‘minority community’ had to be legally vanished and the minority foundations remained ‘orphan’ from their genuine socio-economic constituency. In fact, what is today legally visible is the minority foundations, the vakfs themselves but not their ‘owners’. In the Greek and Turkish law, the community vakf was retained as a special legal entity as an exception to the foundations under civil law.13 As a consequence, minority communities lost their legal personality and became legally invisible. As the vakf foundations accumulated real property with a clear minority-ethnic character, they were perceived by states as derogation to the national project for eth- nicising land. Both states made efforts to put the vakf under political control. On the other hand, enjoyment of the income and management of vakf property in Greece and Turkey was placed under a legal framework strongly politicized and open to manipulation:14 For decades both states

13 In Turkey, all foundations are governed by the same law, so the exceptional position of the community foundations (cemaat vakfı) is not easily detectable, as is the law on the Muslim minority foundations. 14 D. Kurban & K. Tsitselikis, A Tale of Reciprocity. Minority Foundations in Greece and Turkey, (TESEV-KEMO, Istanbul, 2010). 300 konstantinos tsitselikis attempted to hamper the free enjoyment of the community property by members of the minorities. Excessive expropriation of real estate, blocking the selection of members of the management boards of the foundations, and non-recognition of acquisition of donation in favour of the foundations by court decisions were the usual means through which a tight control was exerted over minority property. Through the European Union integration process, which commenced in early 2000s and resulted in a series of Reform Packages, Turkey had to amend the vakf law and liberalise its content. Today Act 5737 of 2008 constitutes the basis of the law on the vakf (minority and non-minority) which has brought significant changes (elections of the vakf management committees are held regularly, the minority vakf are represented to the Council of the General Directorate of the Vakfs), without having resolved cases of lost properties. The main pending issue remains the recognition of ownership for hundreds of real estate properties which have been expropriated and often purchased by a third party. A series of judgements by the ECtHR highlighted the non-compliance of Turkey’s jurisprudence and law with the ECHR as far as Article 1 of Protocol 1 was concerned. The Court, in various cases, found a violation of the right to property of a vakf and granted pecuniary indemnity or exceptionally – as was the case of the Greek orphanage of Prinkipos/Büyükada – ordered the restitutio in integrum (optional) of the real estate.15

15 Fener Rum Erkek Lisesi Vakfi v Turkey, 9 January 2007, no 34478/97, ECHR, , Fener Rum Patrikliği (Patriarcat Œcuménique) v Turkey, 8 July 2008, no 14340/05, ECHR, , Samatya surp kevork ermeni kilisesi, mektebi ve mezarlığı vakfı yönetim kurulu v Turkey, 12.2008, no 1480/03, ECHR, < http://cmiskp .echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Sama tya%20%7C%20surp%20%7C%20Turquie&sessionid=81491924&skin=hudoc-en>, Yedikule Surp Kevork Ermeni Kilisesi, Mektebi Ve Mezarlığı Vakfı Yönetim Kurulu v Turkey, 16 December 2008, no 36165/02, ECHR, < http://cmiskp.echr.coe.int/tkp197/view.asp?item=2 &portal=hbkm&action=html&highlight=Yedikule%20%7C%20surp%20%7C%20 Turquie&sessionid=81491924&skin=hudoc-en>, Βozcaada Kimisis Teodoku Rum Ortodoks kilisesi vakfi v Turkey, 9 December 2008 nos 37639/03, 37655/03, 26736/04, 42670/04, ECHR, , and Βozcaada Kimisis Teodoku Rum Ortodoks kilisesi vakfi v Turkey (2), 6 October 2009, nos 37646/03, 37665/03, 37992/03, 37993/03, 37996/03, 37998/03, 37999/03, 38000/03, ECHR, , all visited on 23 October 2011. the lausanne minority protection in greece and turkey 301

In Greece, the new law on the Muslim vakf (3647/2008) is not implemented by both government and the minority, and the management committees still are appointed by the government since 1964, when the Turkish government expelled all Greek citizens from Turkey, and the Greek government began to apply counter-measures against the Turkish/ Muslim minority of Thrace. Reciprocity, counter-measures and applied discrimination or harassment became political tools, which in fact marked the deficient implementation of the Treaty in both countries through different means and methods. Although a number of positive steps have been taken, both individually and mutually by the governments of Greece and Turkey towards addressing the issues of Lausanne minorities, structural problems remain due to an unspoken endorsement of millet-like communitarianism and the prevalence of nationalistic perceptions of minorities in both societies. Minorities continue to be governed by a state of exception, whereby the administration and courts in both countries often disregard the rule of law in their decisions and practices concerning community foundations. This practice of illegality is still endorsed by the judiciary and the executive as well as by opposition parties on grounds of ‘national interest.’ Manifestly unlawful practices (excessive expropriations, blocking democratic selection of the management boards etc.) which would be deemed unacceptable if they were applied vis-à-vis citizens belonging to the majority are implicitly or explicitly regarded as acceptable, when the object of such illegality are the members of minorities. On the other hand, the leaders of minority communities as well as a significant number of members of these communities display a reluctance to claim internal accountability and democracy vis-à-vis the administrations of community foundations. Minority identity often becomes a tool for satisfying personal interests of members of the minority’s elite and –in the case of the vakf- to control real properties and their income. From the side of the state, minority identity can become an ideological threat to the majority’s ‘national identity’ and their real estate a foreign capital that could be ‘nationalised’. This antagonistic bipolar scheme in periods of political instability can be quite harmful to community properties. After all, the minority community properties, within the scope of the Lausanne Treaty, have a constitutive role to support the domestic milieu of the minority, catering social needs (schools, building maintenance etc) and helping vulnerable groups (poor people, orphans, scholarships to students etc). In a way they replace the state’s welfare infrastructure and create links of political dependence to those who control it. 302 konstantinos tsitselikis

That said, the multiple questions raised by minority foundations reveal the multi-dimensional deficits in participatory democracy, social citizenship and equality in Greece and Turkey.16

4. The Role of Greece and Turkey as Kin-States of the Minorities and the Burden of Reciprocity

The interdependence of the droit de regard (right to supervise) of their mutual minorities by Greece and Turkey have produced a series of situations that often would not comply with the content of ‘minority protection’ as prescribed by the Treaty of Lausanne and other relevant human rights instruments. Ethnic kinship played a crucial role in the consolidation of nationalism and ethnic affinities across the post-Ottoman region through the assimilation of the Greek-Orthodox and Muslims of the Empire into the new, national ideologies.17 As such, one of the main aspects of Turkish policy in the post-Lausanne years was to seek to reinforce a uniquely Turkish national identity within the minority. The view that Turkish-speaking Muslims are intrinsically Turkish is also reflected in patterns of engagement of the kin-minority of Thrace. For Greece, this task was easier vis-à-vis its kin-minority as it had been engaged in forming a national identity since the 19th century. However, behind the conventional legal justification of droit de regard, in both Greece and Turkey, invocation of ties of ‘common blood’ or ‘common ethnic descent or origin’ underpins ideological and political agendas. These ties substitute citizenship with special rights extended to member of the respective minorities under the unilateral control of the granting state. To understand the role of the kin-state one should define the ties through which such a kinship is established. The usual ‘material’ of such interrelation is the national ideology of the kin-state reflected in the kin- minority and the consolidation of such an ideology within the latter. Thus, one should analyze what the Turkish and Greek nations ‘consist of,’ in order to determine the legal premises enabling the kin-state to exercise the relevant policies through national affiliation on their ‘soydaş’ and

16 D. Kurban & K. Tsitselikis, A Tale of Reciprocity: Minority Foundations in Greece and Turkey (TESEV/KEMO, Istanbul/Athens, 2010). 17 H. Poulton, ‘Turkey as Kin-State: Turkish Foreign Policy towards Turkish and Muslim Communities in the Balkans’, in H. Poulton & S. Taji-Farouki (eds.), Muslim Identity and the Balkan State (Hurst & co., London, 1997) p. 197. the lausanne minority protection in greece and turkey 303

‘homogeneis’ [people of same national descent with the majority in Turkey and Greece, respectively]. In that context, both Greece and Turkey act as ‘kin-states’ in favour of their kin minority through the Treaty of Lausanne, applying financial and logistical support: offering salaries, pensions, scholarships to the kin minority are the most common means encountered in both cases, based on legal regulations or through administrative practices. Conversely, each state of citizenship often considers these measures applied by the kin-state as excessive policies intervening within the domestic state affairs. In that way both kin-states created a sui generis economic field the accessibility which is regulated by criteria outside of any rule of law: beneficiaries would be those loyal to the granting-state policies (according to the context). Others, members of the same minority, would be excluded. This conditional preferential treatment undermined, and still does, the standardisation of a homogenous socio-economic space where right to participation would be recognised globally and equally to any member of the minority. A second level of mutual interference between the two states in applying the Treaty of Lausanne lies in the notorious clause of reciprocity. As article 45 of the Treaty conveys the same obligations on Greece that in the previous articles (37–44) refer directly to Turkey, it provided the ground for long discussions and arguments to the effect that, in the case that a state violates or neglects its conventional commitments, then the counter-party (Greece/Turkey) would legally have the discretion to apply relevant measures and policies to its own minority. The tale of taking negative measures against the one or the other minority began as soon as the legal protection was set up.18 The issue of whether legal reciprocity could be applied at a normative level on the obligations regarding the reciprocal minorities by Greece vis-à-vis Turkey and vice- versa has been clearly answered by modern human-rights international law, according to which human/minority rights cannot depend on other states’ behaviour. Moreover, reciprocity in international law is perceived as a principle applicable to aliens and not to citizens of the state. The question of whether legal reciprocity could be applied at a normative level to the obligations regarding reciprocal treatment of minorities by Greece vis-à-vis Turkey has to be considered under modern international law (Treaty of Vienna, 1969, on the law of the treaties, article 60.5) which is clear on the prevalence of human (and therefore minority) rights over any

18 See a series of contributions on the issue in: S. Akgönül (ed.), Reciprocity. Greek and Turkish Minorities: Law, Religion and Politics (Bilgi University Press, Istanbul, 2008). 304 konstantinos tsitselikis clauses of reciprocity. Human rights embody objective values stemming from democracy and rule of law, which can not be subject to bilateral restrictions. Furthermore, in a case regarding the property rights of a Greek citizen in Turkey, the European Court of Human Rights ruled that the ECHR transcends the framework of mere reciprocity between the contracting states; in concluding the Convention the contracting states wished not to confer mutual rights and obligations on each other conducive to the pursuit of their respective national interests, but to achieve the objectives and ideals of the Council of Europe in order to protect their shared heritage of political traditions, ideals, freedom and the rule of law.19 The Treaty of Lausanne should be implemented in the light of human rights instruments and principles of international law that would not permit negative reciprocity. However, diplomats, politicians, often public opinion, in both Greece and Turkey often evoke article 45 of the Treaty of Lausanne to justify the application of reciprocity through political practice and legal instruments. In effect they rendered minority rights a deficient field of antagonism aiming not to fulfil international legal obligations but to pursue political goals for the control of the minority elites and pop- ulace. What was happening for many decades was the negative implementation of the Treaty: the least mistreatment of the one minority resulted in equal if not multiplied reprisals to the detriment of the other (especially from 1964 to the mid-1990s). The vicious circle of negative reciprocity began as soon as the legal protection regime was established.20 It was from the outset politicised and reflected both the inability of Greece and Turkey to manage their rivalry through normal channels and their tendency to attribute a monolithic relationship between nation and state. Reciprocity in its negative form can be seen as a form of reprisal which targets members of the two minorities who are not considered citizens but rather hostages, a condition which ‘unfortunately… is true for both Turkey and Greece.’21

19 Apostolidi v Turkey, 27.3.2007, ECHR, no 45628/99, para. 71, , visited on 23 October 2011. 20 Yet in 1914, the Greek authorities examined the possibility that the Donme of Thessaloniki could be subject to reprisals ‘for reducing the commercial prosecutions that the Greeks suffer in Turkey’, MFA, General Directorate of Political affairs, Doc. to the General Governorate of Macedonia, Athens 14.5.1914, GAM F. 099/21. 21 B. Oran, Greek Violations of the Lausanne Treaty (The National Committee for Strategic Research and Studies, Ankara 2002), [www.saemk.org], Section ‘Preface-concepts’. the lausanne minority protection in greece and turkey 305

The Special Rapporteur of the Parliamentary Assembly of the Council of Europe illustrated the issue of reciprocity as follows: the members of the minorities in question are, in both cases, nationals of the countries in which they reside, and that they therefore find it difficult to understand – for reasons other than historical ones unconnected with the rights of the individuals concerned – the relevance of the reciprocity principle where they are personally concerned. Whereas Greece and Turkey, as states of origin, may feel a certain responsibility towards the members of the minorities in the neighbouring country, it is in fact the countries in which the minorities live that are primarily responsible for their own citizens, including the members of the respective minorities, not the reverse. In effect, the Special Rapporteur and the Resolution adopted by the Assembly considered that ‘the recurrent use by both the states concerned of the reciprocity principle to refuse to implement the rights secured for their respective minorities under the Treaty of Lausanne is: 1) unacceptable in the light of international human rights law, 2) anachronistic, and 3) detrimental to national cohesion, given that each state is in fact punish- ing its own citizens.’22 Consequently, article 45 of the Treaty of Lausanne must not be interpreted as referring to the substance of the rights of the respective minorities but merely prescribing the mutual obligations of both states to protect the rights of their respective minorities. In the last 60 years, more than 100,000 Greeks had to leave home (from Istanbul and the Gökçeada and Bozcaada islands) and more than 44,000 Muslims/Turks (from Thrace and the Dodecanese islands) lost their Greek citizenship (before and after they migrated). Those who remained in their home country suffered from bad education or loss of property and were seen as ‘foreigners.’ Minority communities lost their legal personality and saw religious autonomy curtailed and collective property diminished. A comparison of the violations and inadequate implementation of the Treaty often supports a misleading comparative argument between governments. The Treaty of Lausanne has overall inherent weaknesses and obsolete formulations offering a deficient legal ground for the subjects of protection. To put it in other words, the Treaty was drafted in the 1920s under a given ideological, legal and political configuration, and it has been being implemented for 90 years

22 M. Hunault, Freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (Eastern Greece), Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report, Doc 11860, 21.4.2009, Council of Europe, Strasbourg and Resolution 1704 (2010) Parliamentary Assembly, Council of Europe, paragraphs 22–28. 306 konstantinos tsitselikis with no intention to adapt it to the newly emerged political, social or economic context. On the contrary, the Treaty has to be seen as a legal instrument in light of modern international human rights and minority protection law.

5. Is it Feasible to Modernise the Content of the Minority Protection in Greece and Turkey?

Applying and interpreting according to political assumptions, the already old-fashioned Treaty of Lausanne suffers from chronic lack of flexibility, which undermines its legal credibility and applicability. The main scope of the Treaty is to protect community organisational institutions guaranteeing access for all members of the minority. Thus, collective identity is protected and a domestic socio-economic sphere of the minority is safeguarded. However, fundamental principles interrelated to citizenship, equality and participation in socio-economical life of the broader society are overshadowed. Lastly, both kin-states offer a series of prerogatives to members of the kin-minority (often seen as an intervention in the domestic affairs by the home state) that facilitate socio-economic mobility to certain groups or individuals on the basis of preferential treatment. The Treaty should be amended according to new phenomena and needs or interpreted in the light of new emerged legal norms. Ultimately, new legal models on social, ethnic, linguistic, religious and economic realities which have been elaborated in the past decades would offer adequate solutions. An internalisation of European and international human rights and minority protection law would facilitate both states to transform their views on minorities and implement the Treaty of Lausanne in modern terms.23 For example, multilateral rather than of bilateral supervision would safeguard the content of minority protection reducing political instrumentalisation that both Greece and Turkey used excessively over decades. The Framework Convention on National Minorities and the Char ter on Minority or Regional Languages of the Council of Europe would offer Greece (who signed the Framework Convention in 1997, but not yet ratified) and Turkey (who neither signed nor ratified it) the ground for an adequate legal minority protection. As minorities become a ‘sensitive

23 N. Fisher Onar & M. Özgüneş, ‘How Deep A Transformation? Europeanization of Greek and Turkish Minority Policies’, 17 International Journal on Minority and Group Rights (2010) pp. 111–136. the lausanne minority protection in greece and turkey 307 issue,’ they are often not subject to fundamental principles of rule of law, accountability, and clarity of administration etc. from both the state of citizenship and the kin-state (often the minorities themselves, in the management of their internal affairs, contravene these principles). A ‘state of exception’ puts minority issues out of the normality of security that rule of law would ensure, as it should be perceived in a modern, multifaceted democracy and undermine any chance to achieve socio-economic participation for members of the minorities. It could be said that both states: • Retain the obsolete millet-like system based on the idea to of grant minority rights through religion. As a consequence, other types of minorities (or minority characteristics) having the same religion to majority (Greek-Orthodox but not Greek-speaking in Greece and Sunni Muslims but not Turkish-speaking in Turkey, for example) are ignored. • Obscure the threshold between private/minority and public/state sphere facilitating the trend of excessive controlling patterns to the detriment of the minority autonomy to self-administer internal affairs or the freedom of anyone to chose his/her ethnic, religious or linguistic membership. • Often turn fields of bilateral state cooperation into domains of antagonism and applied counter measures. As a general comment, despite the quantitative asymmetries and procedural dissimilarities that one may observe in the historical route of deficient minority protection in both states, law could have taken more liberal steps taking into account the scope of the Treaty of Lausanne in light of modern human rights law (especially the ECHR and the case law of the Court of Strasbourg). According to the latter, ‘a democratic society should tolerate information, which could offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society.”’24 Even under the Treaty of Lausanne a clearer division of the private/ minority and public/state sphere could be safeguarded: in the first the minority exerts decisive managerial authority, and in the latter the state supervises as a guarantor of the principles of clarity, fair administration and accountability in favour of the minority. As long as minority issues are

24 Handyside v UK, 7.12.1976, no 5493/72, para 54, ECHR, , visited on 23 October 2011. 308 konstantinos tsitselikis at the centre of unspoken and tacit political goals by any state, even the most adequate legal solution would be too weak to mend the problems. Thus, the community of members of the nation (in both of majority and minority) acts as an autonomous entity, often against the community of citizens, enjoying prerogatives resulting from the unspoken ‘status of exception’. Thus, the Treaty of Lausanne (namely the Chapter dealing with minority protection in Greece and Turkey) has survived over time not as a legal protection framework but often as a manipulative control mechanism. For achieving socio-economic participation by members of minorities, the antithesis built between civic citizenship and ethnic origin should be accommodated: it needs a compromise between the two poles of ‘loyalty to the nation and devotion to the state.’ Ultimately, integrative citizenship as an inclusive category should be subject to common requirements regardless of ethnicity thereby enhancing societal bonds and accommodating vulnerable groups. The case law of the ECtHR may and must be put to good use for a critical/reformative contemplation of the national self for both Greece and Turkey. The study of the ‘Lausanne minorities’ in Greece and Turkey reveals how citizenship regards both the ideological nucleus of nationality – which suffers from outdated fixations of national- religious purity – and fair access to social and civil benefits for mar ginalized minority groups. Balancing community autonomy with civic citizenship should be the target of integration policies and law. Thus, bonds of ‘civic patriotism,’ namely bonds of solidarity built around the sentiment of belonging to the same people governed by the same constitutional legal order would prevail to the segmented ‘blood or religious kinship,’ which entails a ideological antagonism between the ‘community of citizens’ and the ‘community of the nation.’ ANNEX A

TREATY OF PEACE WITH TURKEY, LAUSANNE, 1923

Article 37. Turkey undertakes that the stipulations contained in Articles 38 to 44 shall be recognised as fundamental laws, and that no law, no regulation, nor official action shall conflict or interfere with these stipulations, nor shall any law, regulation, nor official action prevail over them. Article 38. The Turkish Government undertakes to assure full and complete protection of life and liberty to all inhabitants of Turkey without distinction of birth, nationality, language, race or religion. All inhabitants of Turkey shall be entitled to free exercise, whether in public or private, of any creed, religion or belief, the observance of which shall not be incompatible with public order and good morals. Non-Moslem minorities will enjoy full freedom of movement and of emigration, subject to the measures applied, on the whole or on part of the territory, to all Turkish nationals, and which may be taken by the Turkish Government for national defense, or for the maintenance of public order. Article 39. Turkish nationals belonging to non-Moslem minorities will enjoy the same civil and political rights as Moslems. All the inhabitants of Turkey, without distinction of religion, shall be equal before the law. Differences of religion, creed or confession shall not prejudice any Turkish national in matters relating to the enjoyment of civil or political rights, as, for instance, admission to public employments, functions and honours, or the exercise of professions and industries. No restrictions shall be imposed on the free use by any Turkish national of any language in private intercourse, in commerce, religion, in the press, or in publications of any kind or at public meetings. Notwithstanding the existence of the official language, adequate facilities shall be given to Turkish nationals of non-Turkish speech for the oral use of their own language before the Courts. Article 40. Turkish nationals belonging to non-Moslem minorities shall enjoy the same treatment and security in law and in fact as other Turkish nationals. In particular, they shall have an equal right to establish, manage and control at their own expense, any charitable, religious and social institutions, any schools and other establishments for instruction and education, with the right to use their own language and to exercise their own religion freely therein. 310 annex a

Article 41. As regards public instruction, the Turkish Government will grant in those towns and districts, where a considerable proportion of non-Moslem nationals are resident, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such Turkish nationals through the medium of their own language. This provision will not prevent the Turkish Government from making the teaching of the Turkish language obligatory in the said schools. In towns and districts where there is a considerable proportion of Turkish nationals belonging to non-Moslem minorities, these minorities shall be assured an equitable share in the enjoyment and application of the sums which may be provided out of public funds under the State, municipal or other budgets for educational, religious, or charitable purposes. The sums in question shall be paid to the qualified representatives of the establishments and institutions concerned. Article 42. The Turkish Government undertakes to take, as regards non-Moslem minorities, in so far as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities. These measures will be elaborated by special Commissions composed of representatives of the Turkish Government and of representatives of each of the minorities concerned in equal number. In case of divergence, the Turkish Government and the Council of the League of Nations will appoint in agree ment an umpire chosen from among European lawyers. The Turkish Government undertakes to grant full protection to the churches, synagogues, cemeteries, and other religious establishments of the above-mentioned minorities. All facilities and authorisation will be granted to the pious foundations, and to the religious and charitable institutions of the said minorities at present existing in Turkey, and the Turkish Government will not refuse, for the formation of new religious and charitable institutions, any of the necessary facilities which are guaranteed to other private institutions of that nature. Article 43. Turkish nationals belonging to non-Moslem minorities shall not be compelled to perform any act which constitutes a violation of their faith or religious observances, and shall not be placed under any disability by reason of their refusal to attend Courts of Law or to perform any legal business on their weekly day of rest. This provision, however, shall not exempt such Turkish nationals from such obligations as shall be imposed upon all other Turkish nationals for the preservation of public order. Article 44. Turkey agrees that, in so far as the preceding Articles of this Section affect non-Moslem nationals of Turkey, these provisions constitute obligations of international concern and shall be placed under the guarantee of the League of treaty of peace with turkey, lausanne, 1923 311

Nations. They shall not be modified without the assent of the majority of the Council of the League of Nations. The British Empire, France, Italy and Japan hereby agree not to withhold their assent to any modification in these Articles which is in due form assented to by a majority of the Council of the League of Nations. Turkey agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction or danger of infraction of any of these obligations, and that the Council may thereupon take such action and give such directions as it may deem proper and effective in the circumstances. Turkey further agrees that any difference of opinion as to questions of law or of fact arising out of these Articles between the Turkish Government and any one of the other Signatory Powers or any other Power, a member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The Turkish Government hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant. Article 45. The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory. ANNEX B

THE GREEK-TURKISH MINORITIES UNDER THE TREATY OF LAUSANNE

[indicative presentation of shortfalls]

GREECE cooperation/negative reciprocity TURKEY

TREATY OF LAUSANNE

TURKISH/MUSLIM MINORITY GREEK- ORTHODOX MINORITY [+ARMENIANS +JEWS]

LEGAL PERSONALITY The communities are not recognised since the 1950s The communities are recognised only through the vakif EDUCATION Low quality of teachers/education Low quality of education Excessive state control Excessive state control Critical drop in number of students Lack of financial state support MOUFTI [MÜFTÜ] GREEK-ORTHODOX ECUMENICAL PATRIARCHATE Elected or appointed? Not recognised as a legal entity Jurisdiction on personal status Not recognised as ‘Ecumenical’ The school of Halki remains closed FOUNDATIONS [VAKOUFIA/VAKIFLAR] No registration Loss of real property Restrictions on the management autonomy Occupied vakif [mazbut] Committees are not elected annex b 313

PRIVATE PROPERTIES Uncertainty of the majority of legal deeds in Thrace Many cases of unresolved lost properties DODECANESE islands/ON IKI adalar The Treaty of Lausanne is deemed not applicable Community property mismanaged Special schools closed

GÖKÇEADA/IMVROS, BOZCAADA/TENEDOS The special status of autonomy abolished Critical drop in minority population Excessive loss of community and private property Minority schools closed

PART FOUR

INDIGENOUS PEOPLES, SOCIO-ECONOMIC PARTICIPATION AND IDENTITY

DISCRIMINATION, INDIGENOUS AND TRIBAL PEOPLES, AND SOCIAL INDICATORS1

Lee Swepston*

1. Introduction

In virtually every country in which they live, indigenous and tribal peoples are at the bottom of every social indicator where their presence is acknowledged, whether it be poverty levels, income, school attendance or prison occupancy. This can be attributed in very large part to exclusion, neglect and discrimination. At the same time, there are all too few cases in which national statistical systems take open account of the presence of these peoples; and when they do the available statistics are neither consistent nor comparable.

2. Terminology

There is some inconsistency in this article in the way the peoples concerned are named. This is based on the history of the discussions and on the reference instruments. The United Nations uses the term ‘indigenous peoples’, on the basis of discussions in the UN since 1971 and the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The International Labour Organization (ILO) – responsible for the only international conventions on the subject – uses ‘indigenous and tribal peoples’, based on its own history in this area since the 1920s and on the titles of the only two international conventions on the subject, both adopted by the ILO: the Indigenous and Tribal Populations Convention, 1957 (No. 107), and the Indigenous and Tribal Peoples Convention, 1989

* Former Senior Adviser on Human Rights and Director of the Department of Fundamental Principles and Rights, International Labour Organization, Geneva, Switzerland. 1 The comments in this article were prepared following the author’s participation in the most recent effort in the UN system to establish the criteria for indicators relating to indigenous peoples: Technical Expert Meeting on Keeping track – indicators, mechanisms and data for assessing the implementation of indigenous peoples’ rights (Geneva 20–21 September 2010). 318 lee swepston

(No. 169).2 It is a matter for debate elsewhere whether there is a substantive difference between the two expressions, but some of the countries that have most vocally rejected the idea that the UNDRIP applies to anyone in their countries have nevertheless ratified the ILO’s Convention No. 107, and do not dispute its applicability.3 Here we will use the two interchangeably, as a matter of convenience. The second terminology question is the meaning of indicators. These are objective data used, in the present context, to measure the socio- economic and rights situation of indigenous peoples, and changes in their situations. The international community has spent a good deal of time and effort exploring whether it is possible to construct indicators of performance on human rights. In a related effort, there is an examination of whether the indicators commonly used for assessing well-being for populations in general are well adapted to the situation of indigenous peoples, and it has generally been concluded that indicators meant for the general population are not adequate to describe the situation of indigenous and tribal peoples. We will look here at the efforts to adopt indicators generally, at the particular problems with indicators concerning indigenous and tribal peoples, and finally at what the indicators that are available at the national level show about the situation of indigenous parts of national populations. The conclusions will be that: a. There is a growing consensus at the international level about what the characteristics of indicators applicable to indigenous peoples should be, but the indicators themselves do not yet exist. b. The failure to have adopted indicators specific to indigenous and tribal peoples is itself some evidence of discrimination prevalent in attitudes towards them. c. The statistics that are available at the national level in some countries show that indigenous people are at the bottom of almost every social

2 Full texts of these two Conventions are available on the website of the International Labour Organization at . 3 This refers in particular to Bangladesh, India and Pakistan. All three have recognised tribal peoples in their constitutions or laws, but often refuse to acknowledge that these peoples are “indigenous” – and indeed in strict terms they are correct that the tribal peoples have no proven pre-existence to other parts of the national population. The problem arises from the fact that in the UN system “indigenous” does not refer simply to earlier inhabitation of a particular region, but rather to a more sociological identification with the term as conferring a shared identity with others who live in a similar situation. There is no internationally-agreed upon definition of the term, see below. discrimination, indigenous & tribal peoples 319

indicator in almost every country where they live. The word “almost” used here means simply that I am exercising caution in the face of scanty data. Personally I think they are at the bottom of the pile in every country. d. The conclusion thus is that this particular selection of minority populations suffers from systemic discrimination, neglect and exclusion, both in the attention paid to them and as regards outcomes. There is a need to improve the way the numbers are gathered, but all the available numbers support this conclusion. e. Additional information will make it more likely that the work of national administrations, and international efforts, can be directed more effectively to addressing the factors that result in lower respect for the rights of indigenous peoples.

3. Consideration of Indicators at the International Level

3.1. Previous Work at the International Level on Indicators of Human Rights There has been a great deal of discussion in recent years about the need for indicators of human rights generally. As the web site4 of the Office of the UN High Commissioner on Human Rights (OHCHR) states: Qualitative and quantitative indicators are useful tools for promoting and monitoring the implementation of human rights. International human rights treaties and jurisprudence of the human rights treaty bodies call for the development of statistical indicators in compliance with international human rights norms and principles. Human rights indicators are tools for States to assess their own progress in implementing human rights, formulate human rights-based public policies and programmes, and make precise information available to civil society and to national and international human rights monitoring mechanisms. At the request of the inter-committee meeting of the treaty bodies, OHCHR, in consultation with a panel of experts, has developed a conceptual and methodological framework for identifying and using indicators to promote and monitor the implementation of human rights. The main features of the OHCHR’s work on indicators are described as follows:

4 . 320 lee swepston

The OHCHR conceptual and methodological framework adopts a common approach to identifying indicators for monitoring civil and political rights, and economic, social and cultural rights. The framework recommends the development of structural, process and outcome indicators. This configuration of indicators should help assess the steps being taken by States in addressing their obligations – from commitments and acceptance of international human rights standards (structural indicators) to efforts being made to meet the obligations that flow from the standards (process indicators) and on to the results of those efforts (outcome indicators). The framework seeks neither to prepare a common list of indicators to be applied across all countries irrespective of their social, political and economic development, nor to make a case for building a global composite measure for cross-country comparisons of the realization or enjoyment of human rights. The framework provides guidance for the identification of contextually relevant and feasible indicators in compliance with international human rights norms and principles. Using the adopted framework, lists of illustrative indicators have been identified and are being validated on a number of human rights and thematic issues. There are some obvious problems with this approach, and I am somewhat critical of it, but to be able to measure the achievement of human rights and of efforts to attain – or to avoid – them is nevertheless a valuable target.

3.2. The Particular Problem of Framing Indicators Concerning Indigenous Peoples Indicators for the situation, well-being and implementation of the rights of indigenous and tribal peoples have to be somewhat different from the indicators relating to other parts of the population – and to a certain degree different even from those relating to other minority groups. The discussions that have taken place on framing indicators on these peoples normally agree on the following related propositions. First, the indicators that presently exist at the national and international levels on the situation of indigenous and tribal peoples are fragmen- tary, often ill-adapted to the situations of these peoples, and not commonly agreed upon with their participation. This writer was startled to hear a statement by indigenous representatives in one of the first seminars on the subject convened by the Permanent Forum on Indigenous Issues that the statistics relating to them had been stolen from them, and that they demanded them back. This meant that the statistics concerning them were being gathered without a real understanding of what they discrimination, indigenous & tribal peoples 321 represented for the indigenous peoples concerned, and were being used in ways detrimental to their interests. This evocative statement began to make many of us aware of the importance of the subject, of its particular nature, and of the depth of feeling aroused by its discussion. Second, it is agreed that it is necessary to develop indicators in order to assess the present situation of indigenous and tribal peoples, the effects of past and present developments touching on their situation, and the possible impact of developments in the future. One of the early gaps in the evaluations of the Millennium Development Goals (MDGs) was that minorities, and in particular indigenous and tribal peoples, were simply not accounted for in most national data on poverty, well-being and development, and that the international development partners themselves often were not aware of any need to differentiate development goals concerning them. An ILO study in 2005 documented firmly that Poverty Reduction Strategy Papers more often than not excluded minorities, and especially indigenous minorities, from the coverage of poverty reduction programmes.5 Indeed, one of my UN-system colleagues, an experienced and concerned senior official working in Latin America, said with a pertinent black humour that the easiest way to meet MDGs would be to eliminate all the indigenous peoples in each country – meaning of course that their poverty levels are so far below the rest of the national populations that if statistics concerning them are included they pull the “scores” down very hard. Third, the indicators developed for indigenous and tribal peoples’ situations must be developed in a way that is distinct from those developed for other populations, both in order to reflect accurately their unique position in the countries in which they live, and to embody their own conceptions of the world around them. Such mundane considerations as an assessment of poverty that relies on whether people have a solid roof to their houses, or their income measured in monetary terms, automatically classifies as poor nomadic or herding peoples, and those not living in monetary economies, ignoring the specific situations and different life styles of indigenous and tribal peoples.

5 M. Tomei, Indigenous and Tribal Peoples: An Ethnic Audit of Selected Poverty Reduction Strategy Papers (ILO, Geneva, 2005 – available on the ILO website at ). Additional studies on the same theme are also found on the ILO website – see e.g. B. Feiring, Including indigenous peoples in Poverty Reduction Strategies: A Practice Guide based on experiences from Cambodia, Cameroon and Nepal (ILO, Geneva, 2008). 322 lee swepston

One of the complicating factors here is based on the fact that much of the present push for indicators relating to the situation of indigenous and tribal peoples’ well-being is based on the perceived need for tools to measure the implementation of international standards concerning them. However, general indicators developed to assess the developmental and other situations of indigenous peoples are not necessarily identical with indicators that have been used for monitoring compliance with international standards concerning or affecting them. International supervisory processes do take account of indicators such as statistics at the national and international levels, and often highlight the need for such indicators to be developed; but the criteria they themselves use to assess implementation are somewhat different from these broader economic indicators. This writer believes that one could do much worse than to take a highly empirical approach to developing indicators of human rights performance where indigenous and tribal peoples are concerned, by looking at the questions actually posed and the information regularly sought by international supervisory bodies concerning them. This would reveal, in an empirical way, the factors that the international supervisory bodies believe are relevant, even when they have not con- sciously been framed with numerical indicators in mind. The situation of indigenous and tribal peoples is examined frequently and in depth by the ILO supervisory bodies under the Indigenous and Tribal Peoples Convention, 1989 (No. 169), and its earlier companion Convention No. 107, as well as under other relevant ILO standards. It is examined in a less structured fashion by UN Treaty Bodies such as the Committee on Economic, Social and Cultural Rights, which has concluded – entirely correctly of course – that the Covenant of the same name applies in particular to indigenous peoples. The Inter-American Court of Human Rights has also made rulings concerning the rights of indigenous peoples under broader human rights standards. An experimental consideration of this approach by this writer showed a great consistency in the questions being posed by all these bodies on the definition and identity of these peoples in different countries, providing a possible template for indicators on this point, and a possible approach on defining indicators of human rights performance on a broader range of human rights.

3.3. The Problem of Definition There is no international definition of the term “indigenous” or “indigenous and tribal”, nor will one be adopted. This leaves statisticians puzzled, discrimination, indigenous & tribal peoples 323 which is entirely understandable – the rest of us working in this area have adapted to this situation. The UN Declaration on the Rights of Indigenous Peoples does not attempt a definition, relying instead on the concept of self-identification. The ILO Conventions have statements of coverage, which do not amount to a definition but attempts to indicate the groups to which the Convention applies. They contain both objective elements such as being dealt with in particular legislation, having one’s own language and legal system, and occupation of their present territories prior to colonisation; and subjective elements such as self-identification, which is characterised in Convention No. 169 as “fundamental”. However, because governments must define more precisely than do international standards who is covered by national legislation and benefit programmes, inter alia, it is then up to governments to define at the national level which parts of the national population are covered once the Convention is ratified. Governments must adopt definitions, though if they are to respect international standards they should do so with the participation of the indigenous and tribal peoples in the country. This results in individual national definitions, each of which is consistent with the ILO Conventions and UNDRIP, but which are different from country to country. To base this discussion on determinations that have been made in order to apply Convention No. 169, the peoples covered by the Convention are identified in different ways in different countries, if they are identified at all. As is stated in a recent ILO publication on the implementation of Convention No. 169: Some countries do not speak of “indigenous” or “tribal” peoples but use other local or national terms. Some of these terms have references to where the peoples live or how they traditionally make their living. In countries in Asia, for example, the language holds expressions like “hill people” or “shifting cultivators”, while some indigenous peoples in Africa are known as “pastoralists” and “hunter-gatherers”. In Latin America, the term “peasants” has been used in some countries. Over the last decades, most countries and regions have provided such practical interpretations of the concept of indigenous and tribal peoples. In parallel, indigenous peoples are increasingly identifying as specific peoples or nations and also gaining constitutional and legal recognition as such in many countries.6 This will of course make consistent international indicators very difficult. For instance, Roma are specifically excluded from the coverage of

6 Indigenous & Tribal Peoples’ Rights in Practice – A Guide to ILO Convention No. 169 (ILO, 2009, can be found on the ILO website). 324 lee swepston

Convention No. 169 by Norway, by the terms of a declaration accompanying ratification. In Colombia, on the other hand, Roma are specifically included in the coverage of the Convention. In addition, several Central and Latin American countries include under the Convention so-called “maroons” or “garifuna” or others – the terms differ from country to country – who are usually groups descended from escaped African slaves or others, and who clearly are not “indigenous” in the pure sense of the term, but who live like Amerindian populations. These fall under the “tribal” part of the ILO Convention’s coverage, and in other contexts might be viewed as minorities rather than indigenous, but their social circumstances are so nearly those of indigenous peoples that it would not be rational to exclude them from this definition at the national level. In India, the Scheduled Tribes are clearly covered by the ILO standards as tribal peoples, while the government considers it equally clear that they are not covered by the UNDRIP because they are no more indigenous than anyone else in the country. Finally, there are urbanised or partially assimilated indigenous peoples, who no longer live “traditional” lifestyles, but who still identify themselves as indigenous – and self-identification is fundamental under both Convention No. 169 and UNDRIP. Whether they are included in statistics, in the cases in which countries make specific reference to indigenous and tribal peoples, depends on a number of factors, and may also vary over time. It also means that the indicators appropriate to describing their situations are likely to differ widely from those applicable to the situation of less urbanised parts of the same peoples. These peoples are also identified in different ways according to the country. Definitional criteria may include the language spoken (for instance, in Mexico), percentage of indigenous ancestry (Canada), areas in which people live (Peru, to an extent), or whether they are specifi cally listed in national constitutions or legislation (particularly India’s Scheduled Tribes). The website of the United Nations Permanent Forum on Indigenous Issues7 adds supplementary considerations on this issue as concerns the development of indicators: In all relevant data collection exercises, questions on indigenous identity with full respect for the principle of self-identification have to be included. It is important to develop multiple criteria with local indigenous peoples’

7 . discrimination, indigenous & tribal peoples 325

active and effective participation accurately to capture identity and socio- economic conditions. Data collection concerning indigenous peoples should follow the principle of free prior and informed consent at all levels and the human rights of indigenous peoples. For indigenous peoples living in voluntary isolation, data collection exercises should not be used as a pretext for establishing forced contact. Participation

Indigenous peoples should fully participate as equal partners, in all stages of data collection, including planning, implementation, analysis and dissemination, access and return, with appropriate resourcing and capacity- building to do so. In conclusion, the development of consistent indicators for assessing the situation of indigenous and tribal peoples at the national level, and for measuring the compliance of governments with human rights obligations where they are concerned, will not be simple. Many of these same considerations apply to other minorities – ethnic, linguistic, religious and other – but may be less problematic.

4. Indicators of Economic Prosperity of Indigenous People at the National Level

There are only a few countries that systematically collect data specific to indigenous peoples. While available indicators show that indigenous peoples are the poorest and worst-off everywhere they live, many countries do not collect specific data on indigenous peoples, and when they do these data do not always cover a wide range of indicators. This is often because governments consider it “politically incorrect” to ask questions about race and ethnicity – something most human rights activists consider to be entirely counterproductive to knowing what human rights abuses exist, what the situation of minority groups is, and finding ways to address the situation. As one example, Sweden has abandoned the collection of separate statistical information not only about its sole recognised indigenous population but also about other ethnic groups.8 France also has serious reservations about even recognising the concept of race,

8 . 326 lee swepston fearing that recognising the existence of racial differences will serve only to raise ethnic tensions. We will leave the underlying logic of such a position unexamined here. Examples are given here both from some of the most developed countries in the world, which are exceptions to the tendency not to collect statistics on their indigenous citizens; and from less-developed countries. This sample, compiled for the purposes of this paper, is consistent with every other country in which statistics are available, though the number of countries concerned appears to be quite limited. No attempt has been made here to make comparisons among the countries mentioned, as the same kind of statistics are not uniformly cited in all the countries where some information is available, and the information summarised here suggests that the bases on which this kind of statistics are gathered in different countries make direct comparisons difficult. One of these countries is the United States.9 Statistics of mental health, for instance, based on information provided by the Centers for Disease Control and Prevention report that, from 1999 to 2004, the suicide rate for American Indians/Alaska Natives was considerably higher than the overall US rate, and that adults aged 25–29 had the highest rate of suicide in the American Indian/Alaska Native population. Suicide ranked as the eighth leading cause of death for American Indians/Alaska Natives of all ages, and the second leading cause of death for those between 10 and 34. When compared with other racial and ethnic groups, American Indian/ Alaska Native youth have more serious problems with mental health dis- orders related to suicide, such as anxiety, substance abuse and depression. Mental health services are not easily accessible to American Indians and Alaska Natives, due to lack of funding, culturally inappropriate services and mental health professional shortages and high turnover. According to the US Commission on Civil Rights, Native Americans con tinue to experience higher rates of poverty, poorer educational achieve ment, more substandard housing and higher rates of disease. Other relevant statistics of the same kind exist for the US, all with the same negative imbalance relating to Native Americans. Australia also keeps extensive statistics for Aborigines and Torres Strait Islanders. Extracts from a report of the Australian Human Rights Com mission indicate that in 2008,10

9 Information on the US from . 10 . discrimination, indigenous & tribal peoples 327

[u]nder the life expectation estimation formula adopted by the ABS in 2003, Indigenous males’ life expectation was estimated to be 59.4 years over 1996– 2001, while female life expectation was estimated to be 64.8 years: a life expectation inequality gap when compared to the general Australian population of approximately 17 years for the same five year period. For communicable diseases, rates for Aboriginal Australians were reported to be, for instance, 11.7 times the rate detected in the non-indigenous population for hepatitis A, and 1.6 times the rate in the non-indigenous population for tuberculosis. As concerns income, in the 2006 Census, the “mean equivalised gross household income” for indigenous persons was AUD 460 per week, which amounted to 62 per cent of the rate for non-indigenous Australians. These representative samples from the information available are not contradicted in any category of economic and social well-being in Australian statistics. New Zealand is another country that keeps health-related and socio- economic statistics for the Maori, the indigenous peoples of that country. According to the most recent information available:11 In 2006, life expectancy at birth was 70.4 years for Māori males and 75.1 years for Māori females, while life expectancy at birth for non-Māori males was 79.0 years and for non-Māori females 83.0 years. Overall, in 2006, Māori life expectancy at birth was at least eight years less than that for non-Māori for both genders. During the 1980s and early 1990s, Māori mortality was seriously under- counted due to the use of a different ethnicity data recording system on death registration forms compared with that used for the census. The broken lines on Figure 5 for Māori males and females represent adjusted life expectancy from the New Zealand Census Mortality Study (NZCMS). This adjusted life expectancy takes into account the undercounting of Māori deaths, thereby providing more reliable life expectancy estimates over this period (Ajwani et al 2003; Blakely et al 2007). Most notably, Figure 7 shows that Māori life expectancy rapidly increased up until the late 1970s or early 1980s, after which Māori life expectancy was (mostly) static while non-Māori life expectancy continued to increase. Since the late 1990s, Māori life expectancy has been increasing at about the same rate as non-Māori, or even slightly faster (Blakely et al 2007). Similarly poor results for Maori are found in Table 1 concerning socio- economic factors.12 There are a few developing countries that also gather

11 The very clear statistics below are found at: . 12 Ibid. 328 lee swepston

Table 1. Socio-economic Indicators: Percentage of Each Ethnic Group, 2006. Indicator Māori Non-Māori Males Females Total Males Females Total School completion (Level 2 40.7 45.7 43.4 65.0 62.5 63.7 Certificate or higher), 15+ years, 2006 Unemployed, 15+ years, 7.1 8.2 7.6 2.8 3.0 2.9 2006 Total personal income 22.8 27.9 25.5 16.1 25.6 21.0 less than $10,000, 15+ years, 2006 Receiving means-tested 19.9 32.6 26.7 8.8 12.1 10.5 benefit, 15+ years, 2006 Living in household 5.6 5.3 5.5 1.5 1.0 1.2 without telephone access, 15+ years, 2006 Living in household 7.8 10.2 9.1 3.8 6.2 5.0 without motor vehicle access, 15+ years, 2006 Not living in own home, 69.6 70.1 69.9 44.9 42.6 43.7 15+ years, 2006 Household crowding,2 22.2 23.3 22.8 7.9 7.9 7.9 all age groups, 2006 Source: Statistics New Zealand.

statistics concerning indigenous peoples, though they typically are less extensive and more recent than those gathered in developed countries. In Chile, the 2002 census13 posed questions to households, including indigenous households, based on the concept of “belonging” to an indigenous people (pertenencia in Spanish). There are fewer categories than in some of the other countries cited here, and the gaps between the situation of indigenous and non-indigenous peoples appear narrower. This raises some questions about whether the self-identification criterion alone is fully reliable in a region where it is commonly accepted that to be identified as indigenous may in itself lead to discrimination, but this comment

13 See Estadísticas Sociales de los pueblos indígenas en Chile, Censo 2002, at . discrimination, indigenous & tribal peoples 329 cannot be backed up by objective evidence in the present case, and is not intended to call into question the sincerity of the effort to gather reliable statistics. The results obtained nevertheless are consistent with those in other countries, in demonstrating that the indigenous peoples in Chile are consistently in a worse situation than non-indigenous populations. Among these, the only question on health referred to handicaps (discapacidad), and indicated that the rate for all Chileans was 2.2 per cent compared to 3 per cent for indigenous people. As concerns education, the statistics indicated that the literacy level for indigenous persons ten years and older was 91.8 per cent, compared with a nation-wide literacy rate of 96 per cent. It will be interesting to examine whether these relationships between indigenous and non-indigenous persons remain at the same levels as the sophistication of information gathering, and the range of questions asked, develops in future censuses. In India, the National Commission for Scheduled Tribes reports, in comments summarising the social situation of the tribal populations in the country:14 The literacy rate for overall population has increased from 52.2% to 65.38% between 1991 and 2001. In case of Scheduled Tribes, the increase in literacy has been from 29.62% to 47.10%. The female literacy rate among tribals during the period 1991 to 2001 increased from 18.19% to 34.76% which is lower by approximately 20% as compared to literacy rate of the females of the general population. However, the significant point is increase in total as well as female literacy among the tribals. According to 1991 Census figures, 42.02% of the Scheduled Tribes population were main workers, of whom 54.50% were cultivators and 32.69% were agricultural labourers. Thus, about 87% of the main workers from these communities were engaged in primary sector activities. These disparities are compounded by higher dropout rates in formal education, resulting in a disproportionately lower representation in higher education. The cumulative effect has been that the proportion of Scheduled Tribes below the poverty line is substantially higher than the national average. As per a statement provided by the Planning Commission, it is observed that ST people living below poverty line in 1993–1994 was 51.94% in rural areas, and 41.14% in urban areas respectively. The percentage of ST population living below poverty line has decreased to 45.86% in rural areas and 34.75% in urban areas as per the estimation of below poverty line

14 See on the website of the Indian National Commission on Scheduled Tribes at: . 330 lee swepston

in the year 1999–2000. Thus there is a decrease of STs living below poverty line by about 6% in rural areas and 4.5% in urban areas during the last five years. There are a few other countries that gather and publish statistics concerning their indigenous peoples (e.g. Mexico and Norway), though the number of such countries remains small and the kinds of statistics (and perhaps their reliability) varies considerably. Clearly not all countries with indigenous and tribal peoples who are covered by the ILO Conventions and by UNDRIP have decided to gather such statistics, nor do they always allow consistent comparisons with non-indigenous populations.

5. Concluding Remarks

The construction of social indicators for indigenous and tribal peoples is quite tricky, both scientifically and from the point of view of human rights. Although thinking on it is going on, there is a very long way to go. There are, among other problems, tremendous obstacles in the way of developing indicators that take sufficient account of the differences among indigenous and tribal peoples in different parts of the world, and yet remain internally consistent. It is difficult to imagine common indicators addressing successfully the situation of Native Americans and those who live among the tribal peoples in India who live in a stone-age environment, though they do share a number of concerns. On the other hand, there is a real need to construct such indicators and to apply them, because of the need to be able to direct assistance and development efforts in ways that will further indigenous development while respecting Article 2 of Convention No. 169: Article 2 1. Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. 2. Such action shall include measures for: (a) ensuring that members of these peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population; (b) promoting the full realisation of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions; (c) assisting the members of the peoples concerned to eliminate socio- economic gaps that may exist between indigenous and other members of discrimination, indigenous & tribal peoples 331

the national community, in a manner compatible with their aspirations and ways of life. It is equally clear that when statistics relative to the welfare and development of indigenous peoples in the countries where they live have been developed, they consistently show that indigenous peoples are the least well-off in every country in which they are found. While this article does not claim to be an exhaustive examination of statistics on indigenous peoples around the world, research indicates that there are not many countries beyond those mentioned here that systematically gather such statistics. In addition, there are few common characteristics that can be said to be shared in the technical sense between statistical systems in different countries. They often cover only some of the fields necessary to compile full assessments of the situation of indigenous peoples as compared to majority populations in these countries.

MARGINALITY, DISEMPOWERMENT AND CONTESTED DISCOURSES ON INDIGENOUSNESS IN AFRICA1

Felix Mukwiza Ndahinda*

1. Introduction

During the last two decades, a growing number of mainly hunter-gatherer and pastoralist communities have adopted a new form of identification as the indigenous peoples of Africa. Marginalised for centuries or since the colonial encounter, they have liaised with groups from other parts of the world but also with indigenous rights supporters and advocates in claiming special legal protection under the emerging (international) indigenous rights framework. The heteroclite ethno-cultural composition of the African continent is a documented reality. Also documented is the manner in which imposed colonial boundaries disrupted pre-existing equilib- riums and constrained the dynamics of state formation or the still nascent integration process of various identities in many parts of the continent. The numerous conflicts in post-colonial African states are violent expressions of identity-based grievances. Situations vary from one country to another and marginality of particular identities is relative, mostly in those countries with numerous ethno-cultural groups. Mindful of the need to avoid oversimplification of complex realities, the present analysis explores – in general terms – the substance of indigenous claims and discourses in Africa, against the backdrop of contemporary socio-political realities of the continent and the multifaceted forms of identity claims. The disempowered status of particularly vulnerable and marginalised communities is analysed taking into consideration contextual realities that hamper recognition of particular communities

1 This article draws from various parts of F.M. Ndahinda, Indigenousness in Africa: A Contested Legal Framework for Empowerment of Marginalised Communities (Asser Press/ Springer, The Hague/Berlin, 2011). Dr. Felix Mukwiza Ndahinda is an Assistant Professor at Tilburg Law School’s International Victimology Institute Tilburg (INTERVICT – Tilburg University – The Netherlands). He holds a PhD from the same institution (2009); an LLM from the Raoul Wallenberg Institute of Human Rights (Sweden 2006) and a Bachelor’s degree (LLB) from the National University of Rwanda (2003). * Assistant Professor, International Victimology Institute Tilburg, Tilburg Law School, Tilburg University, The Netherlands. 334 felix mukwiza ndahinda as constitutive of indigenous peoples. The analysis discursively questions the suitability of the indigenous rights framework as the channel efforts aimed at empowering claimant hunter-gatherer, pastoralist and other communities.

2. Indigenousness in Africa

2.1. The Sources of Indigenous Claims in Africa Since the end of the 1980s and beginning of the 1990s, an ever-growing list of ethno-cultural groups have increasingly identified themselves and been identified as the indigenous peoples of Africa. As documented in a 2005 report by a Working Group of Experts on Indigenous Populations/ Communities of the African Commission on Human and Peoples’ Rights (ACHPR), the African peoples applying the term ‘indigenous’ in efforts to address their situation “cut across various economic systems and embrace hunter-gatherers, pastoralists as well as some small-scale farmers”.2 Modes of production currently practiced or practiced in a near past constitute, more than anything else, the key element in group determination. Tensions between traditional modes of production and struggles between various groups for power and control of territories and resources predate European colonisation of the African continent. However, the advent of colonialism “brought new economic and political structures to Africa that reinforced the power of agricultural peoples over herders and hunters, and set down the rules of who had access to state apparatus”.3 The enrolment of mostly hunter-gatherers and herders in the global indigenous movement is somewhat rooted in their relative socio-political and economic marginalisation, mainly since the colonial era. It should be borne in mind that categorisation of entire groups as constitutive of hunter-gatherers or pastoralists needs to be nuanced since in many cases the predominance of one mode of production over others is a matter of degree and based on historical rather than contemporary realities. For instance, it was remarked that while some Amazigh or Fulani/Fulbe

2 African Commission on Human and Peoples’ Rights (ACHPR) and International Working Group for Indigenous Affairs (IWGIA), Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (ACHPR and IWGIA, Copenhagen/Banjul, 2005), p. 15. 3 N. Crawhall, ‘The Rise of Indigenous Peoples Civil Society in Africa: 1994–2004’, Indigenous Affairs 3/04, p. 42. indigenousness in africa 335 communities are classified as transhumant pastoralists, others have engaged in settled agriculture or farming.4 Moves by specific groups in Africa seeking protection as minorities or indigenous peoples were heavily inspired by international dynamics and overseas experiences. As early as in 1970, records show that George Manuel, then head of the National Indian Brotherhood of Canada, visited, among others, Tanzania in his efforts to gain global support for the indigenous rights cause.5 The fact that Tanzanian claimant groups were, subsequently, the first from the continent to send representatives to Geneva to attend a session of the United Nations Working Group on Indigenous Populations (UNWGIP) was likely not a coincidence. It was rather an expression of a successful domestication of global dynamics, using varied networking channels.6 The last decade of the 20th century saw the spread of indigenous rights activism on the African continent. The International Working Group for Indigenous Affairs (IWGIA) – arguably the oldest and most active international non-indigenous organisation advocating for indigenous rights – has been very instrumental in facilitating, to used its own words, “indigenous self-organization” on the African content.7 It hosted in 1993 a conference on the specific Question of Indigenous Peoples in Africa.8 Despite focusing on ‘indigenous peoples’, questions were raised as to the linkages between minority and indigenous status and the applicability of either concept to Africa.9 Even though invoked in this conference – as it is often the case for other fora where these issues are examined – the differentiation between minorities and indigenous people did not seem to represent an issue to be compellingly

4 ACHPR and IWGIA, Indigenous Peoples in Africa: The Forgotten Peoples? The African Commission’s Work on Indigenous Peoples in Africa (ACHPR and IWGIA, Copenhagen/ Banjul, 2006), pp. 15–16. 5 D. Sanders, ‘The Re-emergence of Indigenous Questions in International Law’, 1:3 Canadian Human Rights Yearbook (1983) p. 15. 6 On the first participation of Moringe Parkipuny in a session of the UNWGIP, see M. Parkipuny, ‘The Human Rights Situation of Indigenous Peoples in Africa’, 2:2 Fourth World Journal (1989), , visited on 21 March 2011. See also A.K. Barume, Heading Towards Extinction? Indigenous Rights in Africa: The Case of the Twa of the Kahuzi-Biega National Park, Democratic Republic of Congo (IWGIA Doc. No. 101, Copenhagen, 2000); E. Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’, 16 Hum. Rts. Q.(1994) pp. 58–81. 7 IWGIA, ‘Editorial’, 3 Indigenous Affairs (1998) p. 4. 8 See H. Verber et al. (eds.), ‘…Never Drink from the Same Cup’: Proceedings of the Conference on Indigenous Peoples in Africa (CDR/IWGIA Doc. 74, 1993), p. 5. 9 G. Berge, ‘Reflections on the Concept of Indigenous Peoples in Africa’, in Verber et al. (eds.), ibid., p. 235. 336 felix mukwiza ndahinda determined. The organisation (co-) sponsored several other similar gatherings on the African continent particularly aimed at promoting indigenous rights. The first such conference examining ‘the situation of indigenous peoples in Africa’ to take place on the continent was convened in early 1999.10 With participants from East, Central and Southern Africa, the conference culminated into the adoption of the ‘Arusha Resolutions’, urging African governments to provide for special legal protection of mainly hunter-gatherer and pastoralist communities.11 Through these two conferences and direct support to particular groups, IWGIA was instrumental in popularising indigenousness in Africa, and setting in motion a dynamic which was endorsed by other actors. Two other conferences involving ‘various indigenous peoples and minority groups’ were convened, under the auspices of the United Nations Office of the High Commissioner for Human Rights (OHCHR).12 They explored multiculturalism in Africa: Peace and Constructive Group Accommodation in Situations involving Minorities and Indigenous Peoples. The Arusha, Kidal and Gaborone conferences acknowledged the difficulties attached to invocation of indigenous peoples and minority claims in the African contexts as well as challenges relating to the demarcation of these two categories. During the 2001 second conference held in Kidal, the representative of the Secretariat of the ACHPR – J. Batchono – “drew attention to the difficulties of raising indigenous and minority issues in Africa when there was insufficient agreement on their definition”.13 He further indicated that, “in certain instances, resorting to the use of the terms ‘minorities’ and ‘indigenous’ could become part of the problem in responding to the needs of such communities and peoples”.14 Several participants echoed the same concerns by expressing a “preference for describing indigenous peoples and minorities as excluded or marginalized communities, peoples or groups”.15 In spite of expressed

10 See IWGIA, The Indigenous World 2001–2002 (IWGIA, Copenhagen), p. 453. For a text of the resulting resolutions, see IWGIA, ‘Arusha Resolutions’, 2 Indigenous Affairs (1999) pp. 50–55. 11 IWGIA, ‘Arusha Resolutions’, supra note 9, paras. 9.2–9.3. 12 See ECOSOC, Report[s] on the Seminar[s] on ‘Multiculturalism in Africa: Peaceful and Constructive Group Accommodation in Situations Involving Minorities and Indigenous Peoples’, Arusha, Tanzania, UN Doc. E/CN.4/Sub.2/AC.5/2000/WP.3; Kidal, Mali, UN Doc. E/ CN.4/Sub.2/AC.5/2001/3; and Gaborone, Botswana, UN Doc. E/CN.4/Sub.2/AC.4/2002/4. The phrase is borrowed from: E/CN.4/Sub.2/AC.5/2001/3, para. 7. 13 UN Doc. E/CN.4/Sub.2/AC.5/2001/3, para. 52. 14 Ibid. 15 Ibid., para. 53. indigenousness in africa 337 doubts over the suitability and desirability of the indigenous rights framework in Africa, indigenous rights activism has pragmatically included several dozens of African ethno-cultural communities into the global indigenous rights movement.

2.1.1. Indigenous Hunter-Gatherers Based on the idea that Africa is the cradle of mankind and civilisation,16 and owing to the prevailing belief among historians and socio-anthropologists that for 99 per cent of their history all humans were hunter- gatherers, it is widely affirmed that African hunter-gatherers are the first inhabitants of territories on which they currently live.17 The historical and territorial anteriority of hunter-gatherers in specific parts of Africa needs to be looked at against the backdrop of the so-called ‘Kalahari debates’. Historical and anthropological studies have revisited early researches on identity of (Southern) African hunter-gatherers, yielding into contrasted ‘traditional’ and ‘revisionist’ views.18 Originally focused on Southern Africa but arguably transposable to other sub-regions,19 the debates are rooted in the fact that “[t]raditionalists … regard the people called Bushmen, San or Basarwa as exponents of a hunting-and-gathering culture and essentially isolated until recent times, while ‘revisionists’ regard them as an underclass and historically part of larger social formations”.20 Depending on the adopted traditionalist or revisionist views, answers might defer as to whether particular hunter-gatherer communities are the first inhabitant of particular territories. The hunter-gatherer category regroups communities that either wholly or partially live by hunting and/or gathering as well as other communities

16 See C.A. Diop, The African Origin of Civilization: Myth or Reality, trans. by M. Cook (Lawrence Hill Books, Westport, 1974); and Precolonial Black Africa: A Comparative Study of the Political and Social Systems of Europe and Black Africa, from Antiquity to the Formation of Modern States, trans. by H.J. Salemson (Lawrence Hill Books, New York, 1987). 17 K.A. Spielmann and J.F. Eder, ‘Hunter and Farmers: Then and Now’, 23 Annu. Rev. Anthropol. (1994) p. 311. 18 A. Barnard, ‘Kalahari Revisionism, Vienna and the “Indigenous Peoples” Debate’, 14:1 Social Anthropology (2006) pp. 1–16; M. Guenther et al., ‘The Concept of Indigeneity: Discussion’, 14:1 Social Anthropology (2006) pp. 17–32; J.S. Solway and R.B. Lee, ‘Foragers, Genuine or Spurious? Situating the Kalahari San in History’, 33 Current Anthropology (1992) pp. 187–224. 19 On the Central African region, see K. Biesbrouck et al. (eds.), Central African Hunter- Gatherers in a Multidisciplinary Perspective: Challenging Elusiveness (CNWS Publications, Leiden, 1999) pp. 1 et seq. 20 Barnard, supra note 17, p. 2. 338 felix mukwiza ndahinda in transition from these lifestyles. Claimant indigenous hunter-gatherer groups are constitutive of communities generally regrouped under three main generic categories: Central African Pygmies (Batwa),21 Southern African San (Bushmen)22 and East African foragers.23 Due to their un(der)- documented history and the remoteness of their habitat, available anthropological and sociological records are crippled with doubts in attempting to clearly demarcate these three categories; mostly in those countries where there exist more than one group. Furthermore, beyond these large categories, it is believed that there are other pockets of hunter-gatherers in the Horn of Africa and in West Africa.24 According to various estimates, African current or former hunter-gatherers constitute an overall population of somewhere between 400,00025 and 500,000 peoples.26 However, these estimates are to be taken with a grain of salt since there are no reliable sources on the approximate number of members of some groups such as Equatorial Africa’s Pygmies.27

21 ‘Batwa’ is the plural of the commonly used ‘Twa’, the latter is a stem word out of which Ba or Mu prefixes are added to, respectively make singular and plural forms in many ‘Bantu’ languages. See for instance J. Lewis, The Batwa Pygmies of the Great African Region (Minority Rights Group International (MRG), London, 2000). 22 See R. Hitchcock and D. Vinding (eds.), Indigenous Peoples Rights in Southern Africa (IWGIA, Doc. No. 110, Copenhagen, 2004); L. Cassidy et al., Regional Assessment of the Status of the San in Southern Africa: An Assessment of the Status of the San/Basarwa in Botswana (Legal Assistance Centre, Report No. 3, 2001); J. Suzman, Regional Assessment of the Status of the San in Southern Africa: An Assessment of the Status of the San in Namibia (Legal Assistance Centre, Report No. 4, 2001). 23 J.R. Campbell, ‘Ethnic Minorities and Development: A Prospective Look at the Situation of African Pastoralists and Hunter Gatherers’, 4:1 Ethnicities (2004) pp. 5–26. 24 As the Koegu in Ethiopian (ibid., p. 10) and the Bassari in Senegal (R.W. Nolan, ‘Labour Migration and the Bassari: A Case of Retrograde Development?’, 10:4 Man (1975) pp. 571–588; M. Gessain and A. Desgrées du Lou, ‘L’évolution du lévirat chez les Bassari’, 68:1 Journal des africanistes (1998) pp. 225–248). 25 R.B. Lee and R.K. Hitchcock, ‘African Hunter-Gatherers: Survival, History, and the Politics of Identity’, Supp. 26 African Study Monographs (2001) p. 260; R.B. Lee and R. Daly (eds.), The Cambridge Encyclopaedia of Hunter-Gatherers (Cambridge University Press, Cambridge, 1999) p. 176. For other figures, see J. Burger, Report from the Frontier: The State of the World’s Indigenous Peoples (Zed Books, London, 1987) p. 166; Campbell, supra note 22, p. 10; R.B. Lee, ‘Twenty-First Century Indigenism’, 6:4 Anthropological Theory (2006) pp. 455–479. 26 J. Lewis and J. Nelson, ‘Logging in the Congo Basin: What Hope for Indigenous Peoples’ Resources, and Their Environment’, 4 Indigenous Affairs (2006) p. 9; J. Kenrick, ‘The Forest Peoples of Africa in the 21st Century: Present Predicament of Hunter-Gatherers and Former Hunter-Gatherers of the Central African Rainforests’, 2 Indigenous Affairs (2000) p. 11. 27 For details on the various communities, see F.M. Ndahinda, Indigenousness in Africa: A Contested Legal Framework for Empowerment of Marginalised Communities (Asser Press/ Springer, The Hague/Berlin, 2011) pp. 67–71. indigenousness in africa 339

Even though their relative anteriority on territories or in areas where they live is less contested – notwithstanding the above referred to Kalahari debates – only few African hunter-gatherer groups have succeeded in effectively participating in the international indigenous movement. Some groups like the Twa of Rwanda or Basarwa of Botwsana have bridged strong international alliances and are now frequent participants in international fora dealing with indigenous rights, or networks dedicated to conservation, environmentalism and related issues touching on, or inter- secting with, the substance of the indigenous rights agenda. However, little still remains known on numerous others (mainly pygmy groups of Tropical Africa) whose knowledge of, or contact with, international bodies and networks remains very limited, if not inexistent. Self-identification being one of the pillars of global indigenism, with participation in global networks and venues serving as a stamp legitimis- ing indigenous claims, those groups which are not (yet) full participants in international indigenous fora cannot formally be seen as an integral part of the movement since they still remain in the shadows of their recluse environments and livelihoods. But since nearly all current groups of African hunter-gatherers share similar marginal conditions rooted in a long history of subjugation and dispossession, they are frequently included in global literature on indigenous peoples and, as such, made part of indigenous peoples’ rights agenda.28 Many of them, under the guidance, direction of or influence from indigenous rights activists, are progressively rallying the global quest for justice for indigenous peoples and expressing their grievances using a now familiar language – of historical entitlement to (fundamentally land) rights on the basis of cultural distinctiveness – borrowed from overseas indigenous activism.

2.1.2. Contested Indigeneity of Pastoralists Pastoralist groups represent the larger number of communities identifying with the indigenous movement from the African continent. During the roughly two decades of indigenous activism on the continent, traditionally transhumant pastoralist groups – like the Maasai, Mbororo, the Khoe, the Tuareg/Berbers (now Imazighen) – have been particularly active in national and transnational indigenous rights networks. Some

28 See IWGIA, ‘Hunter-Gatherers’, Indigenous Affairs 2/00 (supra note 25), and the various yearly IWGIA reports, The Indigenous World. See also ACHPR and IWGIA, supra note 1. 340 felix mukwiza ndahinda literature has in fact suggested that insistence on the commonality of pastoralists’ experiences with hunter-gatherer groups has led to a situation whereby participation of the latter in the global indigenous movement has remained under the shadow of the former (particularly the Maasai).29 The anteriority of particular pastoralist communities on currently occupied lands subject to their indigenous claims is far from being a settled fact. In any case, historical, sociological and anthropological studies have described complex migratory waves and mingling between different groups throughout centuries – or millennia – whereby asserting priority in time and continuous occupation of specific territories by specific groups is a difficult, and at times a hazardous, task.30 Like hunter-gatherers, most pastoralist groups enrolling in the global indigenous movement are mainly presented as hinging on their threatened traditional lifestyle (herding in this case); being at the margin of the so-called ‘modern society’ and excluded from circles of state power.31 It is generally affirmed that colonial and post-colonial administrations’ favouring of “settled agriculture over hunting, gathering and nomadic cattle-herding has been instrumental in both marginalizing and stigmatizing some peoples and inspiring them to identify themselves as indigenous groups”.32 Nevertheless, a closer examination of historical processes of their respective subjugation and marginalisation might reveal some substantial differences between the two sets of groups. First, subjugation of (former) hunter-gatherers predates the colonial era while political and socio-economic exclusion of pastoralists is, arguably, embedded in comparatively recent colonial and post-colonial experiences.33 In fact, it is an irony of modern African history to note that the ‘heroic fighters’ or ‘once intrepid warriors’ Maasai34 currently feature

29 J. Igoe, ‘Becoming Indigenous Peoples: Difference, Inequality, and the Globalization of East African Identity Politics’, 105: 420 African Affairs (2006) p. 416. See also Lee, supra note 24, pp. 465–468. 30 J.R. Bowen, ‘Should We Have a Universal Concept of “Indigenous Peoples” Rights? Ethnicity and Essentialism in the Twenty-First Century’, 16: 4 Anthropology Today (2000) pp. 12–16. 31 See for instance IWGIA, The Indigenous World 2006 (IWGIA, Copenhagen) pp. 421 et seq. 32 H. Verber and E. Wæhle, ‘… Never Drink from the Same Cup’, in Verber et al., supra note 7, p. 10. 33 For relevant literature, see J. Igoe and D. Brockington, Pastoral Land Tenure and Community Conservation: A Case Study from North East Tanzania (International Institute for Environment and Development, Pastoral Land Tenure Series No. 11, 1999), pp. 5 et seq.; Lee and Daly, supra note 24, p. 181. 34 As featuring in the title of D.L. Hodgson, Once Intrepid Warriors: Gender, Ethnicity and the Cultural Politics of Maasai Development (Indiana University Press, Bloomington, 2001). indigenousness in africa 341 alongside historically low-profile and often dominated hunter-gatherers in rising up – under a hence shared indigenous identity – against perceived state oppression.35 Second, if most hunter-gatherer communities have almost always been in the margins of political power in post-independent African countries, many pastoralist groups were less excluded and somehow maintained direct contact with, or were involved in, national politics.36 Most revealingly, Moringe Parkipuny the pastoralist Maasai who became the first African participant in the United Nations Working Group on Indigenous Populations in 1989 was at the time a member of the Tanzanian Parliament. The demise of African pastoralism – once considered as the quintessential source of wealth – 37 is an undisputable reality that has adverse impact on the very existence of the overwhelming majority of members of pastoralist communities in the various countries where they live. Yet, the nature of threats facing pastoralists does not match the status of destitution and subjugation of most, if not all, hunter-gatherer communities which have lived at the bottom of the societal pyramid for the past few centuries. Substantive indigenous claims by African pastoralists raise a number of issues. Not all pastoralists are participants in the indigenous rights movement.38 The ‘modernisation’ of considerable sections of non-participating groups might have produced elites who, a priori, do not meet some requirements of indigenousness, and where a significant number of group members still practice traditional pastoralism.39 Additionally, determination of group membership is challenging due to constantly changing

35 This is to be contrasted with claims of autonomous existence of African hunter- gatherers until a relatively recent past, used as the main issue in the previously evoked Kalahari debate. 36 The case of Maasai in both Kenya and Tanzania as some group members rose to such posts as prime minister of Tanzania in the 1980s (Edward Sokoine) or vice-president in the Kenyan presidential cabinet of the 1990s (George Saitoti) as mentioned in Igoe, supra note 28, p. 417. 37 R. Waller, ‘Pastoral Poverty in Historical Perspective’, in D.M. Anderson and V. Broch-Due (eds.), The Poor Are not Us: Poverty and Pastoralism in Eastern Africa (James Currey/East African Educational Publishing/ Ohio University, Oxford/Nairobi/Athens, Ohio, 1999) p. 20. 38 Groups such as the Hima of Uganda, the Hema of Eastern D.R. Congo, the Tutsi of Rwanda, Burundi or Eastern D.R. Congo, and Southern Africa’s Tswana – to name but a few – are fundamentally (or at least historically) pastoralists but not currently participant in the global indigenous movement. 39 For relevant literature, see J.P. Chrétien, The Great Lakes of Africa: Two Thousand Years of History, trans. by S. Straus (Zone Books, New York, 2003); E. Fratkin, ‘East African Pastoralism in Transition: Maasai, Boran, and Rendille Cases’, 44:3 African Studies Review (2001) pp. 3–4. 342 felix mukwiza ndahinda political and socio-economic conditions of peoples formerly designated as pastoralists but who have, over the time, engaged in various other (side or main) activities including agriculture, trading or other ‘modern’ means of livelihood.40 In those countries with dozens, if not hundreds, of different ethnolinguistic groups, pastoralists are not the only, or the most, destitute members of society. Ownership of livestock gives them some material advantage vis-à-vis the masses of dispossessed rural agricultural communities whose survival solely rests on soil cultivation with inherent climatic hazards. In fact, some pastoralists are even resented by impoverished masses of other rural dwellers as being a relatively well-off social class whose engagement into global indigenism only aims at preserving formerly enjoyed privileges.41 Accordingly, invocation of marginalisation can sometimes be construed in rather relative terms. Finally, since self-identification coupled with land claims and shared experiences of subjugation, marginality and dispossession are said to be the salient elements of current global indigenous claims,42 the potential number of groups which might readily resort to this identity considered as conferring certain (political and material) advantages might end up rising to unmanageable proportions for both national and international scenes.43 This suggestion builds on the fact that the often branded indigenous peoples’ special connection with ancestral lands for survival is also to be taken in much more relative terms in its application to Africa. It cannot be opposed by, say, pastoralists against millions of African rural communities whose survival rests on the practice of subsistence agriculture on their equally inherited lands.44

40 N. Kipuri, ‘Seeking Space in Postcolonial Politics: The Case of Indigenous Peoples in East Africa’, in K Wessendorf (ed.), Challenging Politics: Indigenous Peoples’ Experiences with Political Parties and Elections (IWGIA Doc. No. 104, Copenhagen, 2001), pp. 246–275. 41 Most revealing is the title of the book by V. Azarya, Aristocrats Facing Change: The Fulbe in Guinea, Nigeria and Cameroon (University of Chicago Press, Chicago, 1978). 42 B. Kingsbury, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’, 92 American Journal of International Law (1998) p. 455; S. Saugestad, The Inconvenient Indigenous: Remote Area Development in Botswana, Donor Assistance, and the First People of the Kalahari (Nordic Africa Institute, Borås, 2001) pp. 55–67. 43 These seem to be the conclusions reached by once UN Special Rapporteur Alfonso Martínez in his Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations, Final Report by the Special Rapporteur, UN Doc. E/ CN.4/Sub.2/1999/20, 22 June 1999. 44 For further details, see M. Mamdani, When Victims Become Killers: Colonialism, Nativism and Genocide in Rwanda (Princeton University Press, Princeton, 2001) pp. 234–263. indigenousness in africa 343

Communities currently practicing or in transition from pastoralism as the main or traditional means of livelihood are spread across the African continent. Just like for hunter-gatherers, there are no reliable sources on the overall population of African (transhumant) pastoralists. Representa tive communities include, but are not limited to: the Maasai, Turkana, Rendille, Barabaig, Karamojong in East Africa; the Khoe, Nama, Himba in Southern Africa; the Fulani (mainly the Mbororo), Toubou and Imazighen in West and Northern Africa.45 Some studies suggest that there are more than 50 million pastoralists in sub-Saharan Africa, while inclusion of agro-pastoralists leads to a much higher figure of 260 million peoples.46 These figures do not – at least fully – include the Imazighen (Berbers and Tuaregs) said to represent more or less 30 million people spread across Western and Northern Africa.47 The communities mentioned above are regular participants in the global indigenous movement. However, there are other groups not (very) active in indigenous fora but which rely on pastoralism as their traditional livelihood activity. They include: Afar (Djibouti, Eritrea and Ethiopia); Issa (Djibouti and Ethiopia); Kerayu (Ethiopia); Beja, Kababish, Misseriya, Reshiat (Sudan); Wardei, Orma,

45 On the Khoe, the Nama, the Himba, see Saugestad, supra note 41, pp. 26–30; J. Suzman, Minorities in Independent Namibia (MRG, London, 2002); N. Crawhall, Indigenous Peoples of South Africa: Current Trends (South African San Institute, International Labour Office, Geneva, 1999); S. Robins, ‘NGOs, “Bushmen” and Double Vision: The ≠Khomani, San Land Claim and the Cultural Politics of “Community” and “Development” in the Kalahari’, 27:4 Journal of Southern African Studies (2001) p. 846. On the Imazighen and the Fulani/ Fulbe, see IWGIA, The Indigenous World 2007 (IWGIA, Copenhagen, 2007), p. 434; B. Maddy- Weitzman, ‘Ethno-politics and Globalisation in North Africa: The Berber Culture Movement’, 11:1 Journal of North African Studies (2006) p. 73; M. Moritz, ‘FulBe Pastoralists and the Neo-Patrimonial State in the Chad Basin’, 25 Geography Research Forum (2005) p. 86. For alternative, lower but generic estimates, see A.J. Gordon, ‘Cultural Identity and Illness: Fulani Views’, 24 Culture, Medicine and Psychiatry (2000) p. 298; A. Wane, Review of the Literature on Pastoral Economics and Marketing: West Africa (Report prepared for the World Initiative for Sustainable Pastoralism, IUCN EARO, 2006); S. Tonah, ‘Integration or Exclusion of Fulbe Pastoralists in West Africa: A Comparative Analysis of Interethnic Relations, State and Local Policies in Ghana and Côte d’Ivoire’, 41:1 Journal of Modern African Studies (2003) pp. 91–114; M. de Bruijn and H. van Dijk, ‘Changing Population Mobility in West Africa: Fulbe Pastoralists in Central and South Mali’, 102 African Affairs (2003) pp. 285–307; C. Dutilly-Diane, Review of the Literature on Pastoral Economics and Marketing: North Africa (IUCN EARO, Report, World Initiative for Sustainable Pastoralism, 2006); J. Markakis, Pastoralism on the Margin (MRG, London, 2004), p. 15. On East African Communities, see International Committee of the Red Cross (ICRC), Livestock Study in the Great Horn of Africa (ICRC, Nairobi, 2005). 46 ICRC, ibid., p. 1. 47 See IWGIA, supra note 44, p. 434; Congrès Mondial Amazigh, ‘Les Amazigh du Maroc: Un Peuple Marginalisé’, p. 2, , visited on 9 March 2007. See also ACHPR and IWGIA, supra note 1, pp. 22–24. 344 felix mukwiza ndahinda

Sakuye (Kenya); Dinka, Nuer, Shilluk (South Sudan), and a considerable number of Somali clans.48 Similarly, the Hima (Uganda), Hema (D.R. Congo) and Tutsi (Burundi, Rwanda, Congo and Uganda) are historically pastoralist communities and relatively large sections of these groups still practice and live by traditional pastoralism. As in the case of hunter-gatherers, land and territorial rights are central to indigenous claims by the various African pastoralist groups. Contex tually, indigenous claims are voiced on a continent where globalisation and flow of capital have created a situation whereby the gap between tiny percentages of rich and masses of poor is very significant, and continuously increasing.49 Hence, beyond struggles for preservation of non- dominant cultures, the stakes of competition for resources are equally determinant factors for involvement in the indigenous movement.50 An integral part of the non-governmental organisation (NGO) revolution on the African continent, enrolment in global indigenism, in Igoe’s words, amounts to “a successful adaptation to the conditions laid down by foreign donors on the part of local political actors who seek in this way to gain access to new resources”.51

2.1.3. Other Claimant Indigenous Communities Since contemporary indigenous identification is mostly based on subjective rather than objective criteria, a growing number of other groups not falling under the hunter-gatherer and pastoralist categories have equally invoked indigenousness on the ground of their situational characteristics. For instance, the agriculturalist Bogo people of Togo said to total some 6,000 people have expressed indigenous claims, in spite of practicing the most dominant mode of production on the African continent.52

48 For some elaborations thereon, see ICRC, supra note 44, p. 5; M.A. M. Salih, ‘Pastoralism and the State in African Arid Lands: An Overview’, 2 IWGIA Newsletter (1993) pp. 4–13. 49 Saugestad, supra note 41 pp. 77–78. See also illustrations in UNDP, ‘Addressing Social and Economic Disparities for Human Development’, in Kenya: Human Development Report (UNDP, 2001), pp. 1–12. 50 D.L. Hodgson, ‘Introduction: Comparative Perspectives on the Indigenous Rights Movement in Africa and the Americas’, 104:4 American Anthropologist (2002) pp. 1041 et seq. 51 J. Igoe, ‘Scaling up Civil Society: Donor Money, NGOs and the Pastoralist Land Rights Movement in Tanzania’, 34:5 Development and Change (2003) p. 867. 52 An exchange of the author with Honorine Abra Mawwanvi, a representative from the group during the 6th Session of the United Nations Permanent Forum on Indigenous Issues. indigenousness in africa 345

The Ogonis of Nigeria represent one of the most world-renowned ‘African indigenous peoples’ not fitting into the hunter-gatherers or pastoralists classification. Traditionally practicing farming, fishing and hunting,53 the Ogoni people living in the oil-rich Niger delta in Nigeria gained international attention due to the tragic circumstances surrounding the 1995 execution of their acclaimed leader Ken Saro Wiwa together with eight other Nigerians by the repressive military regime of Sani Abacha.54 Constituting one of the estimated more than 300 different ethnicities in Nigeria, and representing some 300,000 to 500,000 people55 out of a national population of around 141,356,000 people,56 the Ogonis were listed under the admittedly non-exhaustive enumeration by the 2005 ACHPR’s report as the only indigenous group in Nigeria and categorised as small-scale farmers.57 While the tragic execution of Ken Saro Wiwa and others attracted international sympathy towards the Ogoni cause, the latter are only one of the many communities living in the Niger Delta and more or less facing similar problems. Other groups include the Izons (Ijaws), Isokos, Urhobos, Itsekiris, Ilajes, Andonis, Ibibios, Orons, Efiks, Anangs, Ekpeyes, Ekweres and others, totalling some 7 to 12 million.58 All these groups are said to depend on “fishing and small-scale farming subsistence farming for their livelihood”.59 The choice of indigenousness by the Ogonis as a relevant framework through which they could channel their grievances against the Nigerian central government has been analysed as one among many other strategies used by a number of the above groups from the oil-rich Niger Delta in claiming a share into resources generated by the exploitation of ‘their’ oil.60 Other strategies include environmentalism, minority rights and general human rights activism.

53 C.R. Ezetah, ‘International Law of Self-Determination and the Ogoni Question: Mirroring Africa’s Post-Colonial Dilemma’, 19 Loy. L.A. Int’l & Comp. L.J. (1996–1997) p. 814. 54 Ibid., p. 811. See also B. Clifford, ‘Political Process Theory and Transnational Movements: Dialectics of Protest among Nigeria’s Ogoni Minority’, 49 Social Problems (2002) pp. 395–415. 55 Clifford, supra note 53, p. 396 (estimates dated 2002); I.L. Worika, ‘Deprivation, Despoilation and Destitution: Whither Environment and Human Rights in Nigeria’s Niger Delta’, 8:1 ILSA J. Int’l & Comp. L. (2001–2002) p. 7. 56 UN, World Population Prospects: The 2006 Revision and World Urbanization Prospects: The 2005 Revision, , visited on 15 June 2010. 57 ACHPR and IWGIA, supra note 1, p. 16. 58 The names and figures are provided Worika, supra note 54, pp. 4–5. 59 Ibid., at p. 5. 60 J. Oloka-Onyango, ‘Reinforcing Marginalized Rights in an Age of Globalization: International Mechanisms, Non-State Actors, and the Struggle for People’s Rights in Africa’, 18 Am. U. Int’l L. Rev. (2002–2003) pp. 860–862. 346 felix mukwiza ndahinda

Since their situational characteristics are not substantially different from neighbouring groups, it is not to be excluded that in the future other Nigerian ethnic groups could raise indigenous claims and seek recognition of rights attached thereto. Present and potential future claims by the Oginis and other Niger Delta communities have to be looked at in historical perspective of a particularly troubled part of Nigeria as most of the territory where this activism takes place forms part of the former secessionist Biafra region. The looseness or absence of authoritative criteria for determination of indigenousness has led to the participation in the global indigenous movement of groups perceived as not typically representative of the indigenous identity: the Rehoboth Basters and the Boers. The Rehoboth Basters are said to represent a population of 35,000 peoples.61 Niezen portrays the Rehoboth Basters as: “descendants of indigenous Khoi and Afrikaans settlers who claim that, with Namibia’s independence in 1990, they were deprived of their traditional form of self-government, had their communal land expropriated, thus losing their means of subsistence based upon cattle raising, and were denied use of their mother tongue in administration, justice, education and public life”.62 Some analysis considers the Rehoboth Basters as a formerly privileged group under both German colonisation,63 and South African mandate over Namibia.64 Throughout this pre-independence period, they enjoyed a relative autonomy; a status which was formally recognised under Act No. 56 of 1976 passed by the South African Parliament and granting them a “right to self-government in accordance with the Paternal Law of 1872”.65 Labelled as ‘coloured peoples’, they enjoyed a relatively privileged position

61 Divergent figures vary from 33,000 to 41,000 people. On these figures, see Suzman, supra note 44, p. 19; A.H.E. Morawa, Minority Languages and Public Administration: A Comment on Issues Raised in Diergaardt et al. v. Namibia (European Centre for Minority Issues (ECMI), October 2002), p. 2, , visited on 6 July 2010. 62 See R. Niezen, The Origin of Indigenism: Human Rights and the Politics of Identity (University of California Press, Berkeley, 2003) pp. 21–22 (emphasis added). 63 See G.J.J. Oosthuizen, ‘The Evil of Colonialism: The Rehoboth Baster Uprising in German South-West Africa (Namibia) during the First World War, 1914–1915’, in D.E. Keen and P.R. Keen (eds.), Considering Evil and Human Wickedness (Inter-Disciplinary Press, 2004) pp. 93–111; B. Madley, ‘From Africa to Auschwitz: How German South West Africa Incubated Ideas and Methods Adopted and Developed by the Nazis in Eastern Europe’, 35:3 European History Quarterly (2005) pp. 429–464; W. Werner, ‘A Brief History of Land Dispossession in Namibia’, 19:1 Journal of Southern African Studies (1993) p. 139. 64 J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia, Communication No. 760/1997, UN Doc. CCPR/C/69/D/760/1997 (2000), paras. 2.1–2.7. 65 Ibid., para. 2.3. indigenousness in africa 347 vis-à-vis the black masses under South Africa’s apartheid practices – as extended to their administered Namibian territory – characterised by a hierarchy of races.66 The advent of Namibian independence resulting in a transfer of power by South Africa to (mainly elites from) the black majority was not necessarily a happy occurrence for all as it led to a subsequent loss by the Basters of their previously enjoyed ‘privileged’ position.67 In fact, they strongly objected to the exercise of a wide range of powers by the new authorities in the wake of the country’s independence.68 The Rehoboth Basters leadership undertook a number of initiatives including unsuc cessful legal battle in domestic and international (quasi) judicial bodies.69 In addition to legal battles, the community strategically endorsed indigenousness as a new identity through which the struggle for communal land rights could be channelled. In a formal declaration, dated 10 October 1992, they proclaimed themselves an indigenous people and, accordingly, demanded “all rights to which autochthonous [sic] and indigenous peoples are entitled to according to international practice and conven tions”.70 The following year, in 1993, they took their case to the UNWGIP where their representative made an impressive statement “on the dis crimination of the Rehoboth Basters: an indigenous people in the Republic of Namibia”.71 They further established contacts with other claimant

66 F.W. Krüger, ‘Identity Building and Social Transformation: The Cases of Namibia and Botswana Compared’, 46 GeoJournal (1998) p. 81. 67 K. Kjæret and K. Stokke, ‘Rehoboth Baster, Namibian or Namibian Baster? An Analysis of National Discourses in Rehoboth, Namibia’, 9:4 Nations and Nationalism (2003) pp. 579–600. 68 Rehoboth People’s Motion in the Wake of Namibian Independence of 1990, 20 March 1990, , visited on 10 July 2007. See also D. Simon, ‘Restructuring the Local State in Post-Apartheid Cities: Namibian Experience and Lessons for South Africa’, 95 African Affairs (1996) pp. 51–84. 69 See The Rehoboth Bastergemeente and J.G.A. Diergaardt v. The Government of the Republic of Namibia and others, Judgment of 26 May 1995, High Court of Namibia, paras. 1–37, , visited on 10 July 2010; Rehoboth Bastergemeente v. Government of the Republic of Namibia, Judgment of 14 May 1996, Supreme Court of Namibia, 1996 NR 238 (SC); other invoked provisions were Artcile 14 (fair trial), Article 17 (right to privacy), and Article 25(a) and (c) (participation public affairs and access to public service); J. G. A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia. 70 The Rehoboth Baster’s Declaration as an Autochthonous and Indigenous Peoples of 1992, at , visited on10 July 2007. 71 Y.J.D. Peeters, ‘On the Discrimination of the Rehoboth Basters: An Indigenous People in the Republic of Namibia’, , visited 5 on December 2010. 348 felix mukwiza ndahinda indigenous groups in the sub-region – namely the Griqwa and Nama – aiming at sealing the “First International Treaty between Indigenous Khoisan First Nations in Southern Africa”.72 From their initial participation until 2005, community representatives participated in all sessions of the UNWGIP,73 and appeared before the subsequently created United Nations Permanent Forum on Indigenous Issues (UNPFII).74 The Rehoboth Basters’ move was emulated by the Afrikaner Volksfront, an umbrella organisation formed by a number of right-wing Afrikaner groups hostile to the democratic transition in South Africa.75 They claimed to be indigenous “out of the belief that Afrikaner identity and language developed uniquely and distinctively in Africa, away from its origins in Europe”.76 Their participation in the UNWGIP was triggered by political dynamics in South Africa resulting in the partial loss of their previously held dominant position, at least in the political realm. In spite of being accredited to participate in the 12th and 13th sessions of the UNWGIP, other participants were uneasy with their indigenous claims. Faced with an unreceptive audience, they stopped their appearance before the UNWGIP or other related fora dealing with indigenous issues. However, ‘Afrikaner’ indigenous claims in South Africa persisted. The UN Special Rapporteur, following his 2006 country visit, referred to the fact that he received a communication from some “organization purport- ing to represent the ‘Boerevolk’, the ‘only indigenous White Nation in Africa’”.77 He unequivocally rejected their indigenous claims on the ground that they did not meet the criteria of indigenity “set out in international legal standards and discourse at the present time”; contending that they enjoyed protection under general human rights norms available

72 See , visited on 1 November 2010. 73 See the reports of the Working Group on Indigenous Populations, 11th–23rd sessions: UN Docs. E/CN.4/Sub.2/1993/29; E/CN.4/Sub.2/1994/30; E/CN.4/Sub.2/1995/24; E/ CN.4/Sub.2/1996/21; E/CN.4/Sub.2/1997/14; E/CN.4/Sub.2/1998/16; E/CN.4/Sub.2/1999/19; E/ CN.4/Sub.2/2000/24; E/CN.4/Sub.2/2001/17; E/CN.4/Sub.2/2002/24; E/CN.4/Sub.2/2003/ 22; E/CN.4/Sub.2/2004/28; E/CN.4/Sub.2/2005/26. 74 See Unrepresented Nations and Peoples Organization (UNPO) and Rehoboth Basters Kaptein’s Council, ‘Alienation of Rehoboth lands’, , visited on 10 July 2010. 75 See M.F. Ramutsindela, ‘Afrikaner Nationalism, Electioneering and the Politics of a Volkstaat’, 18:3 Politics (1998) p. 184. 76 Crawhall, supra note 44, p. 11. 77 R. Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People: Mission to South Africa, UN Doc. E/CN.4/2006/78/Add.2, para. 79. indigenousness in africa 349 for every person in the country “including the right to equality and non-discrimination”.78

2.2. Criticisms of Indigenous Identification in Africa Participation by Afrikaners and Rehoboth Basters in the indigenous movement has been a source of heated debates as to the appropriateness of their indigenous claims and reignited discussions over the need for objective criteria in identification of indigenous peoples.79 Early records on their participation reveal a rejection by various actors and analysts of their indigenous claims.80 Even United Nations reports, in the early years of their participation, expressed doubts on the inclusion of Rehoboth Basters’ and Afrikaners’ representatives in the UNWGIP under the ‘indigenous peoples’ category.81 More interestingly, it was reported that during the 12th session of the UNWGIP “the secretariat received a petition, signed by 82 indigenous participants, expressing concern about the participation of the Afrikaner Volksfront and the Rehoboth Baster Community because of alleged racist backgrounds”.82 But more than in other fields these cases have revealed strong disagreements among anthropologists over support or rejection of indigenism as a relevant concept to refer to some contemporary identities. Fierce criticisms castigating ‘native’ and ‘indigenous’ as “euphemisms for what used to be termed ‘primitive’”83 have been strongly rejected by others who downplay the perceived anthropological and terminological negative connotations of an essentially ‘legal’ concept presented as a “useful tool for political persuasion”.84 In most cases, support for, and

78 Ibid. 79 See for instance J.J. Corntassel and T.H. Primeau, ‘The Paradox of Indigenous Identity: A Levels-of-Analysis Approach’, 4:1Global Governance (1998) p. 150. 80 J. Corntassel, ‘Who is Indigenous? “Peoplehood” and Ethnonationalist Approaches to Rearticulating Indigenous Identity’, 9:1 Nationalism and Ethnic Politics (2003) pp. 75–100; P. Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, 2002) pp. 33–34. 81 The various reports of the UNWGIP referred to above show that Rehoboth Basters representatives were listed under ‘indigenous peoples’ organisations and nations, as well as other ‘organisations and groups’ in 1993; then under (non-indigenous) ‘organisations and groups’ during the following two sessions (1994 and 1995) before reappearing under the former category for the subsequent years. 82 UN Doc. E/CN.4/Sub.2/1994/30, para. 28. 83 A. Kuper, ‘The Return of the Native’, 44:3 Current Anthropology (2003) p. 389. See also A. Béteille, ‘The Idea of Indigenous People’, 39:2 Current Anthropology (1998) pp. 188–189. 84 Barnard, supra note 17, p. 7. See also J. Kenrick and J. Lewis, ‘“Indigenous Peoples” Rights and the Politics of the Term “Indigenous”’, 20:2 Anthropology Today (2004) pp. 4–9; M. Asch et al., ‘On the Return of the Native’, 45:2 Current Anthropology (2004) pp. 261–268. 350 felix mukwiza ndahinda emphasis on, either position results in oversimplification of complex dynamics, realities and agendas. As illustrated by the cases of the Rehoboth Basters and Afrikaners Volksfront, the nature of indigenous claims from the African continent, if analysed in context, makes it quite intricate, and at times impossible, to dissociate legitimate recourse thereto by marginal identities in desperate need for empowerment measures, from strategic moves by groups seeking political and socio-economic gains through some kind of societal repositioning strategies. Exploitation of indigenousness as a path to ‘development’ with attached ‘donor politics’ and NGO activism appears to be at odds with previously held (mis)conceptions of indigenous peoples as survivors of modernity whose only wish is to be left alone in their ‘natural’ milieu.85 A number of observers of the phenomenon have, thus, marvelled at the somehow strange marriage between cultural relativism underlying indigenous rights advocacy, and channels through which this advocacy conveyed, namely information technology and global networking through NGOs, presented as paramount vehicles of globalisation, with its underlying “homogenizing tendencies”.86 Thus, the paradoxical reality is that “situations portrayed as battles for ‘cultural survival’ by the indigenous rights movement are often considered by the people concerned to be battles about livelihood, poverty alleviation, and access to development or social services”.87 One among many other expressions of multiple agendas behind indigenous claims is the ‘com- modification of culture’ through such practices as ethno-tourism.88 Not surprisingly, both proponents and opponents of the indigenous rights movement have invoked the Rehoboth Basters and Afrikaner Volksfront cases for differing reasons. The former have presented the unsympathetic attitude of indigenous peoples’ organisations and international institutions towards ‘Basters’ and ‘Boers’ claims as reflective of a possibility for self-regulation in a movement whose subject-matter lacks clear definitions or authoritative identification criteria.89 Beyond the

85 See the introductory words of Burger’s, Report from the Frontier, supra note 24, p. 1. 86 Kuper, supra note 82, p. 401. See also R. Sylvain, ‘Disorderly Development: Globalization and the Idea of “Culture” in the Kalahari’, 32:3 American Ethnologist (2005) pp. 354–370. 87 Suzman, reply in Kuper, supra note 82, p. 399. 88 Sylvain, supra note 85, p. 356. 89 Niezen, supra note 61, p. 21, where Rehoboth Basters’ case is presented as an exception in a system in which “indigenous delegates come to the meetings with little insecurity about their own status as ‘indigenous’ and few open doubts about the claims of others”. For other supporters of the movement, see also Kenrick and Lewis, supra note 83, pp. 4–9. indigenousness in africa 351 apparent humanism and humanitarianism in indigenous discourses, opponents have denounced political instrumentalisation of indigenous rights by claimants groups. Some argue that there is a kind of residual chauvinism by those who want to perpetuate immutable images of the ‘indigenous’ as an embodiment of the “authentic exotic Other”.90 In any case, the matter remains far from settled in the view of regular participation of Rehoboth Basters in the indigenous peoples’ movement and continuing indigenous claims by fractions of right-wing Afrikaner groups. Subjective identification is met by equally subjective forms of recognition or rejection of indigenous claims of particular groups by peers, activists, scholars, governments or intergovernmental organisations and institutions. Many African governments remain reluctant to specifically recognise in their constitutions the rights of indigenous peoples, invoking the looseness of the concept and its potential to accommodate a wide range of claims, some seen as carrying destabilising effects on fragile states and volatile inter-groups relations.91

3. Resistance to Recognition of the Indigenous Identity in Africa

3.1. The Evolution of Constructions of Indigenousness in Africa Activism for recognition of indigenous rights is not matched by serious and deeply researched studies on the implications that such recognition could have in ethnically diverse African countries. Even where there is a relative abundance of research material on particular groups – as is the case for Southern African San or East African Maasai – it is increasingly clear that there are profound disagreements among ‘experts’ as to the relevance and desirability of ‘indigenousness’ as a source of identity whose recognition might be part of the solutions to the real problems communities face. The reluctance of many African governments to

90 See generally Sylvain, supra note 85, p. 356; B.K.R. Burman, ‘Indigenous and Tribal Peoples in World System Perspective’, 1 Stud. Tribes Tribals (2003) pp. 7–27, at p. 10; and J. Suzman, ‘Indigenous Wrongs and Human Rights: National Policy, International Resolutions and the Status of the San of Southern Africa’, in A. Barnard and J. Kenrick (eds.), Africa’s Indigenous Peoples: ‘First Peoples’ or ‘Marginalized Minorities?’ (Centre for African Studies, University of Edinburgh, 2001) pp. 273–297. 91 African Union (AU), Decision on the United Nations Declaration on the Rights of Indigenous Peoples, Doc. Assembly/Au/9 (VIII) Add.6), Assembly/AU/Dec.141 (VIII), 29–30 January 2007, paras. 1–10. 352 felix mukwiza ndahinda recognise indigenousness as a legal category of domestic relevance and the fluctuating positions of African countries in the negotiation process of the UN-sponsored Declaration on Indigenous Rights provide grounds for questioning the relevance, suitability or applicability of the concept to the continent. For many states, the concept of indigenous populations is associated with colonialism and aggression by foreign nations. There is no doubt that at the time of the 1884–1885 Berlin Conference culminating into the ‘scramble for Africa’ between European imperial powers, and later within the framework of the Covenant of the League of Nations, all natives of colonised territories were referred to as ‘indigenous’ in contrast to the colonial settlers.92 European conquest of and control over natives’ lands culminated into the establishment of clear legal, institutional and social differentiations between original inhabitants of conquered territories on the one hand and the colonisers on the other hand. Within the colonies, differing laws and institutions, of either European or ‘indigenous’ origin, were established to regulate socio-political and economic interactions.93 A product of the ‘divide and rule’ political strategy, the institutionalisation of differences – not only between the colonisers and the colonised but also between diverse local groups – was also a tool used by colonial administrations in their efforts to assert effective control over the colonies.94 The colonial “modernization project”95 was motivated by the idea that it was necessary to emancipate native peoples from their indigenousness. This goal is clearly stated in Article 22 of the Covenant of the League of Nations which uses ‘peoples not yet able to stand for themselves’ and ‘indigenous population’ interchangeably. Until African independences, the concept was still perceived as generally applicable to all descendants of pre-colonial Africa. This fact might

92 See Article 2(VI) of the General Act of the Conference at Berlin, 26 February 1885, 10 Martens Nouveau Recueil (ser. 2), at 414, reprinted in (1909) 3 Am. J. Int’l L. 7 (hereafter, the General Act of the Berlin Conference). On terminological uses of ‘scramble for Africa’, see e.g. M.E. Chamberlain, Scramble for Africa, 2nd ed. (Longman, London/New York, 1999), and T. Pakenham, The Scramble for Africa: White Man’s Conquest of the Dark Continent from 1876 to 1912 (Random House, New York, 1991). 93 See A. Kouevi, ‘La Problématique Autochtone en Afrique’, in F. Houtart (Dir), L’Avenir des Peuples Autochtones: Le Sort des ‘Premières Nations (L’Harmattan, Paris, 2000) p. 178; A. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth- Century International Law’, 40 Harvard International Law Journal (1999) pp. 1–80. 94 J. Ngugi, ‘The Decolonization-Modernization Interface and The Plight of Indigenous Peoples in Post-Colonial Development Discourse in Africa’, 20 Wisconsin International Law Journal (2002) pp. 321–322. 95 Borrowed from ibid., p. 321. indigenousness in africa 353 be deduced from ratifications of the 1957 ILO Convention 107 whereby out of 27 initial ratifications (9 Latin American ratifying states later denounced the Convention following the adoption of Convention 169 in 1989)96 6 are from African countries, 3 of which have no groups involved in current indigenous activism.97 Until the beginning of the 1970s, international legal scholarship and practice still considered all descendants of pre- colonial inhabitants of Africa as indigenous. This is evident in the reference to ‘indigenous’ in the 1975 ICJ advisory opinion Concerning Certain Questions Relating to Western Sahara.98 In essence, the decolonisation process was presented as a process that resulted in a transfer of territorial sovereignty from settlers to indigenous populations.99

3.2. The Absence of Comprehensive Studies on Indigenousness in Africa Most studies on contemporary legal conceptualisations of indigenousness invoke the groundbreaking work of José Martinez Cobo, the United Nations Special Rapporteur on Discrimination against Indigenous Populations.100 His often quoted Study of the Problem of Discrimination against Indigenous Populations is considered as a landmark interna tional attempt to circumscribe ‘indigeneity’.101 However, his studies and

96 ILO Convention No. 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (International Labour Conference, 40th Sess., 1957). On ratifications, see , visited on 18 October 2010. 97 Angola, Egypt, Tunisia, Ghana, Guinea-Bissau and Malawi are party to ILO Convention No. 107 as of July 2007. As of the same date, the latter three states have no listed groups actively involved or enlisted in the indigenous rights movement. 98 Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, 12, where reference is made to consultation of ‘indigenous population’ for purposes of assessing whether the decolonisation process is in conformity with the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) of 14 December 1960 (see paras. 48, 62 and 3–4 of the Opinion). 99 Kingsbury, supra note 41, p. 426. 100 For some studies, see A. Xanthaki, Indigenous Rights and the United Nations Standards: Self-Determination, Culture, and Land (Cambridge University Press, Cambridge, 2007); Y.M. Donders, Towards a Right to Cultural Identity? (Intersentia, Antwerp, 2002); W.J.M. van Genugten, and C. Perez-Bustillo, ‘The Emerging International Architecture of Indigenous Rights: The Interaction between the Global, Regional and National Dimensions’, 11 International Journal on Minority and Group Rights (2004) pp. 379–409; A. Eide, ‘Rights of Indigenous Peoples: Achievements in International Law during the Last Quarter of a Century’, 37 Netherlands Yearbook of International Law (2006) pp. 155–212, S.J. Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford University Press, New York, 2004). 101 J.R. Martinez Cobo, Study of the Problem of Discrimination against Indigenous Populations, Final Report, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, Introduction. 354 felix mukwiza ndahinda conceptualisation of indigenousness did not cover the African continent. While acknowledging that his ‘working definition’ was of a purely provisional nature,102 the Special Rapporteur suggested that a corresponding study be “undertaken to cover African countries, perhaps with a slightly modified working definition”.103 Since the formulation of these recommendations, arguments in favour of inclusion of Africa and Asia into the global indigenous movement have revolved around pragmatic considerations rather than sound theoretical foundations. Numerous groups from Africa and Asia have, de facto, been internationally recognised as indigenous peoples, notwithstanding the challenges faced by a search for common denominators with groups from other parts of the world. Within UN circles, one of the most vocal advocates for inclusion was former UN Special Rapporteur and Chairperson of the UNWGIP Erica-Irene Daes. Her work stressed cultural distinctiveness and self-identification as two widely-accepted criteria in the assessment of indigenousness.104 Special Rapporteurs Stavenhagen and Anaya but also other international actors including UN specialised agencies or institutions have made cases for recognition of indigenous identity in Africa.105 Interestingly, there have been discordant voices even within the institutional structure of the UN questioning the suitability of the indigenous rights framework in Africa. In his 1999 Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations, Special Rapporteur Alfonso Martinez espoused the position commonly held by a number of states from Africa and Asia by putting

102 Ibid., paras. 19–20 and 366. In para. 19, the report specifies that the study was merely limited to 37 countries. 103 Ibid., para. 20. 104 E.-I.A. Daes, Evolution of Standards Concerning the Rights of Indigenous Peoples: The Concept ‘Indigenous Peoples: Information Received from Indigenous Peoples’ Organizations, UN Doc. E/CN.4/Sub.2/AC.4/1996/2/Add.1; E.-I.A. Daes, Working Paper by the Chairperson- Rapporteur on the Concept of ‘Indigenous People, UN Doc. E/CN.4/Sub.2/AC.4/1996/2; A. Eide and E.-I.A. Daes, Working Paper on the Relationship and Distinction between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, UN Doc. E/CN. 4/Sub.2/2000/10. Her identification criteria (in E/CN.4/Sub.2/AC.4/1996/2) still stressed: a) Priority in time, with respect to the occupation and use of a specific territory; b) The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; c) Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and d) An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist. 105 For further details, see Ndahinda, supra note 26, pp. 20–42. indigenousness in africa 355 forward what he considered as the reasons pleading against recognition of exclusive indigenous claims.106 He argued that such claims by some groups living within artificially drawn state boundaries provide an additional ground for ‘Balkanisation’ of those states for which they have “not only the right but also the duty to preserve their fragile territorial integrity”.107 Accordingly, he sceptically concluded that relevant claims put forward in African or Asian states “should be analysed in other forums of the United Nations than those that are currently concerned with the problems of indigenous peoples; in particular in the Working Group on Minorities of the Sub-Commission on Prevention of Discrimination and Protection of Minorities”.108 Partly due to practical considerations imposing indigenousness as the most far-reaching forum offering collective protection of communities, this proposition has often been so easily sidelined without substantive discussions on its merits. Alfonso Martinez’s remarks raised two major concerns on the applicability of indigenousness beyond the Americas and Australasia: the suitability of claims for special legal protection on the ground of aboriginality and the relevant forum for such or related claims. This cautious approach to indigenousness has been espoused by a number of anthropological studies which, while acknowledging the need for protection of marginalised and dispossessed groups, underscore states’ “legitimate grounds for emphasizing the characteristics, interests and rights shared by all citizens, rather than dividing them into indigenous and non-indigenous peoples”.109

3.3. Questioning the Empowering Potential of the Indigenous Framework in Africa The plight of indigenous peoples and the global indigenous movement have, indeed, been subject to a wide range of conceptual and analytical perspectives beyond the sole realm of law. They are also a subject matter of developmental agendas of national and international bodies. They are deeply debated in political philosophy and socio-anthropological studies.110 Inherently premised on relativistic approaches to social realities,

106 See UN Doc. E/CN.4/Sub.2/1999/20. 107 Ibid., para. 89. 108 Ibid., para. 90. 109 Bowen, supra note 29, p. 14. 110 See R. Eversole et al. (eds.), Indigenous Peoples and Poverty: An International Perspective (Zed Books, London, 2005); M. Blaser et al. (eds.), In the Way of Development: Indigenous Peoples, Life Projects and Globalization (Zed Books, London, 2004); Thornberry, supra note 79; and Kuper, supra note 82, pp. 389–402. 356 felix mukwiza ndahinda socio-anthropological and philosophical theories have played a tremendous role in furthering protection and recognition of indigenous peoples and their distinctive identities. As Messer rightly noted, “indigenous rights have been the special legacy of anthropology and cultural relativism, as well as a target of anthropological concern in criticising modernization trends and development practices”.111 Despite the inescapable ethnocentric reflections of the ‘self’ in most analyses of the ‘other’, these disciplines attempt to relate to individuals and groups, not necessarily as beneficiaries of rights or duties under national or international realms, but by focusing on their socio-cultural patterns.112 They provide the substance upon which legal considerations over subjects of a specific form of protection – in this case who qualifies as indigenous? – are (or rather should be) drawn. Since indigenousness presently appears to be the sole international legal regime somewhat comprehensively accommodating group rights, many marginal groups, including from the African continent, have little choice than to endorse the indigenous flag in seeking national and international protection of their collective identity. Part of the problem is that demands by groups claiming to be indigenous, including in Africa and Asia, are (still) formulated using the radical autochthonous-settler or colonisers-colonised dichotomisations bor rowed from the American and Australasian contexts.113 Despite constantly shifting emphasis thereon, indigenous rights advocates use first occupancy of ancestral lands as a ground for special protection. Yet, arguments in favour of recognition of diversity within national realms find their limits in the fact that some forms of affirmation of identities might translate into threats to the very existence of states or harmonious coexistence of various ethno-cultural groups. Due to controversies attached to claims of first occupancy of territories beyond the context of European expansion and colonisation, the legitimate grievances of marginalised, dispossessed and victimised groups would, ideally, fit into other broader categorisation or fora than indigenousness. Despite differences in terms of substantive rights, UN Special Rapporteur Alfonso Martinez suggested that the minority rights framework might be less contested than indigenous.114

111 E. Messer, ‘Anthropology and Human Rights’, 22 Annu. Rev. Anthropol. (1993) p. 236. 112 P. Just, ‘History, Power, Ideology, and Culture: Current Directions in the Anthropology of Law’, 26:2 Law & Soc’y Rev. (1992) pp. 373–411. 113 The different formulations of general demands by indigenous groups, including in Africa and Asia, are elaborated in, among others, Niezen, supra note 61, pp. 145 et seq.; Anaya, supra note 99, pp. 97 et seq. 114 E/CN.4/Sub.2/1999/20, paras. 90–91. indigenousness in africa 357

However, in more than one African country, the minority rights framework encounters similar problems as indigenousness since the multiplicity of ethnicities does not fit into the dichotomous imagery of ‘mainstream dominant majority’ versus ‘marginalised minority groups’.115 Some scholarship has tried to theoretically differentiate mere ‘ethnic groups’ with ‘minorities’ under international law.116 Others studies have suggested that most of the commonly rehearsed – but not agreed upon – identification criteria for minority status might be applicable to most groups in multi-ethnic African states, and, as such, they concluded that most of them are entirely composed of minorities.117 Absent definitions and cognisable identification as well as differentiation criteria between indigenous peoples and minorities, an organisation such as the Working Group of Indigenous Minorities in Southern Africa (WIMSA) has – by strategy or ignorance – incorporated both concepts in its name without attaching much importance to their legalistic definitions attached thereto.118 In fact, even if many marginal groups from African countries are struggling for recognition as ‘indigenous’ rather than ‘minorities’, some of them have participated in international bodies and networks dealing with both issues, despite attempts to institutionally and norma- tively differentiate the two frameworks.119 The practice of the United Nations Human Rights Committee has made it clear that indigenous peoples can invoke relevant International Covenant on Civil and Political Rights (ICCPR) provisions on minority rights.120 It remains, however,

115 S. Slimane, Recognizing Minorities in Africa (MRG, London, 2003), , visited on 19 May 2010; R. Blanton et al., ‘Colonial Style and Ethnic Conflict in Africa’, 38:4 Journal of Peace Research (2001) pp. 473–491; ECOSOC, Minorities in South Asia, UN Doc. E/CN.4/Sub.2/AC.5/2003/WP.13. 116 See W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Clarendon Press, Oxford, 1995), ch. 2. See also P. Thornberry, ‘Indigenous Peoples in International Law: Definition, Claims, Process’, in Barnard and Kenrick, supra note 89, p. 82. 117 E/CN.4/Sub.2/1999/20, para. 91. The MRG, World Directory of Minorities (MRG, London, 1997), pp. 388–533, lists numerous African groups as minorities. 118 This organisation participates in UN-sponsored indigenous gatherings, as reflected in B. Festus, ‘Statement prepared for the 6th United Nations Permanent Forum on Indigenous Issues Special Theme: Territories, Lands and Natural Resources’, New York, 14–25 May 2007, on behalf of the organisation. 119 This is a case of the Karamojong, Ogoni, Oromo, Tuareg, among others, listed as indigenous peoples in the ACHPR and IWGIA, supra note 1, pp. 15–16. Representatives from these groups participated in sessions of the UN Working Group on Minorities. See their statements at the 12th Sess. in 2006, , visited on 11 October 2010. 120 This results from the previously invoked jurisprudence of the HRC and, mostly its General Comment No. 23: The Rights of Minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/ Add.5, paras. 3.2 and 7. 358 felix mukwiza ndahinda unclear whether particular groups can actively and cumulatively invoke minority and indigenous rights protection without weakening some arguments put forward by indigenous claims for more than just minority protection. The situation differs from country to country, but in more general terms the minority rights framework is still widely resisted in Africa. From a purely formal legal standpoint, recognition of indigenousness within African regional and domestic fora is still a highly contentious matter. Some 35 African countries voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples.121 African regional institutions have undertaken a number of initiatives aimed at promoting and protecting aspects of collective (indigenous) rights, including through the establishment of a Working Group of Experts on Indigenous Populations/ Communities.122 There are cases of express or indirect forms of recognition of indigenous rights in domestic legal systems of some African states.123 These might be read as signs of an endorsement of this framework by various actors on the continent. However, it is fair to state that very few states (still) expressly recognise the domestic applicability of indigenous rights precepts and exclusive identification as ‘indigenous’ is resisted by (members of) non-claimant communities. Most states still hold ambivalent positions on the matter since there has been much pressure on African actors to recognise indigenousness as an applicable legal category for specific African ethno-cultural groups. Such identification is still widely contested due to historical connotations of the ‘indigenous’ concept and its perceived inapplicability to the inherently diverse ethnic landscape of the African continent. Recognition of the indigenous identity is further complicated by some socio-political considerations. In a country like Kenya, existing data suggests that the country is comprised of some 42 to more than 70 different ethnic groups.124 Pastoralists and hunter-gatherers identifying with the indigenous movement purportedly represent some 20 per cent of the

121 See UN Docs. A/61/PV.107 and A/61/PV.108, 13 September 2007. For a text of the Declaration see United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/61/L.67, 12 September 2007. 122 For an elaborate analysis thereon, see Ndahinda, supra note 26, pp. 204–207. 123 Ibid., pp. 93–105. 124 See ibid. The report reproduces a 1989 classification of people living in Kenya into 56 broader categories based on ethnicity and other parameters. A number of groups, including some of those claiming indigenousness are not listed. That is the case with Awer, Endorois, Ilchamus, Gaaljecel, Malakote, Munyayaya, Ogiek, Pokot, Sabaot, indigenousness in africa 359

Kenyan national population.125 Out of those, the ACHPR and IWGIA Report on Indigenous Populations/Communities in Africa lists 14 different hunter-gatherers and transhumant pastoralist groups claiming indigenousness.126 In his end of 2006 visit to the country, the UN Special Rapporteur met with representatives of 25 different communities claiming indigenousness, a figure representing, roughly, more than a third of the country’s ethnic groups or tribes.127 Generally referred to in official jargons as ‘excluded communities’, ‘marginalised groups’ or other related terminologies, these people are portrayed as characterised by “poor access to resources and opportunities, insecurity of tenure and alienation from the state administration”.128 Similarly in Rwanda, a search for coherence in post-genocide policies and laws, aimed at eradicating ethnicity – at least in the public sphere – appears to be the main reason barring the government from expressly mentioning Twas as constitutive of an indigenous people.129 The government holds that the most appropriate way to address their predicament is to empower them so that they may enjoy full equality with members of

Sengwer, Talai, Watta, Yakuu. See Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, Pursuant to General Assembly Resolution 60/251 of 15 March 2006 entitled ‘Human Rights Council’, Mission to Kenya, UN Doc. A/HRC/4/32/Add.3, para. 21. Exploitation, for political ends, of ethnic classification of the country’s population led the government to drop ethnic data in the 1999 census (but it was reintroduced in the 2009 census). For the higher figure of 70 ethnic groups, see Bannon, ‘Designing a constitution-drafting process: lessons from Kenya’, 116 Yale Law J. (2007) p. 1853, note 152. 125 Percentage provided by IWGIA, The Indigenous World 2005 (IWGIA, Copenhagen, 2005), p. 452. 126 ACHPR and IWGIA, supra note 3, pp. 15–16. 127 UN Doc. A/HRC/4/32/Add.3, para. 5. The said-communities are: Awer, Boni, Borana, Burgi, Elmolo, Endorois, Ilchamus, Gaaljecel, Gabra, Maasai, Malakote, Munyayaya, Ogiek, Orma, Pokot, Rendille, Sabaot, Sakuye, Samburu, Sengwer, Somali, Talai,Turkana, Watta and Yakuu (the underlined groups do not appear in the admittedly 2005 non-exhaustive listing by the ACHPR and IWGIA). 128 M.O. Makoloo, Kenya: Minorities, Indigenous Peoples and Ethnic Diversity (MRG, London, 2005), p. 14. 129 See for instance Letter No. OMB.03/629/10/04/UE from the Office of the Ombudsman to the president of CAURWA, stating in para. 4 that nowhere in the Rwandan Constitution is it stated that Twas are part of the historically marginalised groups. A chapter on Social Justice of a popularised document, embodying the main ideas to be included in the Constitution (Ibitekerezo by’Ingenzi ku Itegeko Nshinga (January 2002), at pp. 134–135), specifically mentioned Batwa among groups in need of some form of ‘affirmative action’ in tackling specific problems they faced. The reference was eventually removed in the final text. See also Eighth Periodical Report of Rwanda to the African Commission on Human and Peoples’ Rights 2002–2004 (March 2005), p. 42, , visited on 27 November 2008. 360 felix mukwiza ndahinda other groups.130 From this perspective, generally applicable human rights norms are sufficient if they are to be really implemented on an equal footing. The result would be a united, ethnicity-free Rwandan society which would only reflect or reinforce past unity (whether real or romanticised) that was historically undermined by decades of colonial and post-colonial divisive policies.131

4. Marginality and Disempowerment in Africa

4.1. The Complexity of the African Ethno-Cultural Landscape The overall African population is estimated to be 1,022,234,000 in 2010.132 This relatively small, even though fast-growing, population, comparatively to single countries like India133 or China,134 engulfs, proportionally, the most complex and diverse ethno-cultural and/or linguistic compositions of national populations on the planet.135 A clear understanding of this complexity is further complicated by a lack of comprehensive and updated data documenting, accurately, the ethno-cultural and linguistic composition of every African country. Many of the available figures portraying the diverse ethnic composition of African population are based on mere estimates recorded in the few available studies thereon. Some of those studies are outdated while others provide amplified figures by activists whose main concern is to boost their case rather than empirical accu- racy. Such figures should be taken with caution, and still need to be complemented by a more comprehensive mapping of the continent’s ethno-linguistic diversity.

130 Interviews with Jacqueline Bakamurera (Assistant Attorney General in Charge of Community Programs, Human Rights and Legal Aid Services) and Laurent Nkongoli (Commissioner of the Rwandan Human Rights Commission in charge of legislation) on 2 and 3 July 2008, respectively. 131 This was the argument put forward in an interview with Jacqueline Bakamurera, and Laurent Nkongoli. 132 World Population Prospects: The 2010 Revision, , visited on 12 March 2011. 133 See the UN data, which estimates India’s total population at 1,224,614,000 (2010), , visited 10 May 2011. 134 China’s population is estimated to be 1,341,335,000 (2010), < esa.un.org/unpd/wpp/ unpp/p2k0data.asp>, visited on 10 May 2011. 135 On ethnicity in Africa under historical perspective, see B.J. Berman, ‘Ethnicity, Patronage and the African State: The Politics of Uncivil Nationalism’, 97 African Affairs (1998) pp. 305–341; A.Y. Lodhi, ‘The Language Situation in Africa Today’, 2:1 Nordic Journal of African Studies (1993) pp. 79–86. indigenousness in africa 361

The intricate nature of the identity question in Africa can hardly be subjected to an examination of a general character without leading to an oversimplification. The fluidity of identification of a collective as an ethnic, religious, racial group or as a tribe, a clan or a lineage, coupled with conceptually disputed meanings and definitions associated with any of these concepts, further complicates any endeavour aimed at identifying the multifaceted ethnographic composition of (mostly sub-Saharan) African countries.136 Faced with such complexity, social scientists have resorted to equally complex methods and techniques aimed at simplifying the complex reality of diverse African national identities.137 Substantive indigenous peoples’ claims need to take into consideration the complex ethno-cultural diversity of the African continent. Besides indigenousness, there are other forms of affirmation of differential identities in Africa (and elsewhere) equally impacting on processes of nation-building. International legal discourse has endorsed the concepts of ‘peoplehood’ and ‘nationhood’ as consecrated terminologies referring to indigenous groups. Yet, their struggles are equally an expression of ethnicity in so far that the latter concept refers to “a subjective perception of common origins, historical memories, ties, aspirations … by persons, linked by a consciousness of special identity, who jointly seek to maximise their corporate political, economic, and social interest”.138 In that respect, claimant indigenous peoples’ “struggles for constitutional recognition intersect and clash”139 with numerous other expressions of differential group iden tities in more than one African country. As examples of secessionist wars in Biafra, Katanga and Somaliland – among many others – reveal, aspirations for groups to varied forms of self-determination are not limited to the sole claimant indigenous groups but are shared by other groups which equally question African statehood under inherited colonial boundaries.140 The established correlation between various forms of

136 See C. Lentz, ‘“Tribalism” and Ethnicity in Africa: A Review of Four Decades of Anglophone Research’, 31:2 Cah. Sci. hum. (1995) pp. 303–328. 137 As in, for instance, D.N. Posner, ‘Measuring Ethnic Fractionalization in Africa’, 48:4 American Journal of Political Science (2004) pp. 849–863; Blanton et al., supra note 114, pp. 473–491. 138 N. Chazan et al., Politics and Society in Contemporary Africa, 3rd ed. (Lynne Rienner, Boulder, 1999) p. 108. 139 J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, Cambridge, 1995) p. 3. 140 Administrative entities of Nigeria, Democratic Republic of Congo and Somalia, respectively. For an elaborated discussion thereon, see J. Klabbers and R. Lefeber, ‘Africa: Lost between Self-Determination and Uti Possidetis’, in C. Brölmann et al. (eds.), Peoples and Minorities in International Law (Martinus Nijhoff, Dordrecht, 1993) pp. 46–53. 362 felix mukwiza ndahinda

‘identity politics’ and conflicts on the continent dictates a more holistic approach to the numerous challenges arising from the ‘eclectic ethnic composition’ of most African countries rather than merely isolating indigenous claims.141 The overall complexity of the identity fabric of the Africa continent should always be kept in mind in order to fully comprehend the apprehensive attitude most governments have towards recognition of new rights to claimant indigenous peoples. Their arguments that such recognition would open a Pandora box of identity claims should be taken seriously and weighed on their merit against favourable arguments put forward by indigenous rights advocates.142 According to rough estimates, the 54–55 African states are inhabited by peoples speaking more than 800 languages and belonging to hundreds of ethnic groups, ranging from 100 to more than 250 per country.143 A higher figure of more than 2,000 ‘tribes or ethnic societies’ has been put forward.144 Needless to mention that a number of ethnic or linguistic groups sharing the same identity fall within the territorial jurisdiction of more than one state, owing to the very artificial process of state formation on the continent. For this reason, it is certain that a summation of ethnic or linguistic groups per country would certainly total more than 1,000 ethnic or linguistic groups in Africa.145 Illustratively, existing – even though diverging – figures show that single countries like Nigeria, Cameroon and the Democratic Republic of Congo are home to some 200 to more than 250 different ethnic and/or linguistic groups each, thereby totalling more than seven hundred different groups.146 By additionally looking

141 Borrowed from I. William, ‘Ethnicity, Ethnicism and Citizenship: A Philosophical Reflection on the African Experience’, 8:1 J. Soc. Sci. (2004) p. 45. 142 Compare AU, Assembly/AU/Dec.141 (VIII), with the various articles, statements and press releases on the 2006 deferral of the adoption of the said Declaration by the UN General Assembly, at , visited on 16 March 2011. 143 Chazan et al., supra note 137, p. 5. This alternative figure results from the contentious status of Western Sahara, recognised by the Organization of African Unity (OAU) and its successor, the African Union (AU), as a separate state. 144 G.B.N. Ayittey, Africa Betrayed (St. Martin’s Press, New York, 1992), p. 3. See also Lodhi, supra note 134, p. 79, where the author posits, from the linguistic perspective, that of the “estimated 6,200 languages and dialects in the world, 2,582 languages and 1,382 dialects are found in Africa”. 145 See MRG, supra note 116, pp. 388–533. 146 On the ethnic composition of Cameroon, Democratic Republic of Congo and Nigeria, see C. Skutsch (ed.), Encyclopaedia of the World’s Minorities, Vols. 1–3 (Routledge, New York, 2005) pp. 259, 326 (Vol. 1) and p. 914 (Vol. 2), respectively; and MRG, supra note 116, pp. 479, 523 and 444, respectively; see also Committee on the Elimination of Racial Discrimination (CERD), Reports Submitted by States Parties under Article 9 of the indigenousness in africa 363 at estimates of ethnic groups in Ethiopia, Ivory Cost, Kenya, Tanzania, Uganda, Zambia and South Africa, it appears that many African countries are constituted by a mosaic of peoples with linguistic and ethnic affiliations that remain until now a challenging mystery for relevant studies.147 The picture would be far from complete without mentioning the fact that in addition to ethnic divide characterising national diversity and generally conceived as applicable to populations of sub-Saharan/black Africa, inhabitants of some countries are further categorised by racial or religious affiliation.148 Against this background, it does not come as a surprise when one study notes that “[f]ourteen out of the fifteen most ethnically heterogeneous societies in the world are in Africa”.149 In many countries numbering dozens or even some hundreds of different ethnic or tribal groups, political dominance of one or two groups would ipso facto result in marginalisation of a multitude of others. Contrary to the often branded imagery of postcolonial ethnic dominance in indigenous discourse, it results from this complex reality characterising many countries on the continent that “sub-Saharan Africa stands out as the only region in which fewer than half of the countries have an ethnic majority group”.150 It is not surprising that in relation to some countries, all ethnic groups composing the national population are listed as minorities at risk.151 A ranking of countries with the most endangered groups in the Minority Rights Group International (MRG) report State of the World’s Minorities 2007 locates 10 out of 20 most dangerous countries for particular communities in Africa.152

Convention, Fifteenth Periodic Reports of States Parties, Democratic Republic of the Congo, UN Doc. CERD/C/COD/15, para. 17 (450 different tribes). 147 The three volumes of Skutsch, supra note 145, provide the following data on ethnic or linguistic composition of these countries: in Ethiopia some 50 to 70 ethnic and/or linguistic groups; in Ivory Coast some 60 different groups; in Kenya some 70 ‘tribal’ groups; Tanzania some 120 linguistic groups; Uganda more than 40 distinct groups; and in South Africa some 50 to 70 groups further classified by racial group. 148 See M.F. Ramutsindela, ‘National Identity in South Africa: The Search for Harmony’, 43 GeoJournal (1997) pp. 99–110. 149 W. Easterly and R. Levine, ‘Africa’s Growth Tragedy: Policies and Ethnic Divisions’, 112 Quarterly Journal of Economics (1997) p. 1219. 150 J.D. Fearon, Ethnic Mobilization and Ethnic Violence (August 2004) p. 3, , visited on 8 March 2010. 151 This is the case for Burundi and Rwanda where Hutu, Tutsi and Twa are listed by MRG as ‘peoples under threat’, as it appears in Minority Rights Group International (MRG), State of the World’s Minorities 2007, p. 118, , visited on 21 March 2010. 152 Ibid., p. 11. 364 felix mukwiza ndahinda

Grounding on the above description of the ethno-cultural diversity of many African countries, multiculturalists argue that one inescapable path towards resolving the underlying frictions or conflicts is constitutional recognition and equal protection of all groups.153 Since the realisation of this rightful aspiration proves onerous in many respects, endeavours aimed at addressing the indisputable marginality, and in many instances victimisation, of claimant indigenous groups need to be contextualised and driven by a balancing of their interests with those of other groups in countries where they live.

4.2. Relative Marginality and Disempowerment Marginality and dispossession of particular African groups is often described in terms of their ruthless victimisation by ‘dominant’ groups or ‘elites’.154 In reality, such depiction of sources of marginality and dispossession mirrors the common grievances expressed by most indigenous groups elsewhere. The argument highlights a common denominator justifying the current focus on ‘situational’ characteristics of the world’s indigenous peoples at the expense of terminological and semantic coherence.155 Most grievances expressed by hunter-gatherer, pastoralist and other communities participating in the global indigenous movement are real and the urgent need for long-lasting solutions to problems they face can hardly be overstated. The characteristically nomadic lifestyle of hunter-gatherers and pastoralists has, historically, constituted a source of their vulnerability.156 Contemporary manifestations of vulnerability include: the shrinking resources in the forests (hunter-gatherers) or savan- nahs/arid lands (pastoralists) no longer able to sustain the lives of still growing communities, patterns of encroachments on their lands and territories by members of other groups and abject poverty and landlessness

153 See for instance C. Taylor et al. (eds), Multiculturalism: Examining the Politics of Recognition (Princeton University Press, Princeton, 1994) pp. 25 et seq.; W. Kymlicka and W. Norman, Citizenship in Diverse Societies (Oxford University Press, Oxford/New York, 2000) pp. 1 et seq. 154 In this respect, see the constantly updated account of challenges faced by indigenous peoples worldwide in IWGIA, The Indigenous World (1999–2000, 2000–2001, 2001– 2002, 2002–2003, 2004, 2005, 2006, 2007, 2008, 2009 Reports), , visited on 3 September 2010. 155 Ibid. See also Niezen, supra note 61, pp. 20–23. 156 M. Adams et al., Land-Water Interactions: Opportunities and Threats to Water Entitlements of the Poor in Africa for Productive Use (Draft Paper for UNDP Human Development Report 2006), pp. 8 et seq, , visited on 5 May 2009. indigenousness in africa 365 of uprooted members of these communities.157 The critical issues of landlessness, stigmatisation and the inability to compete with others in hostile environments leaves many of these communities – mostly hunter- gatherers – with no other choice than mendacity and exploitation by members of other communities for whom they are forced (by conjectures) to work with little, if any, remuneration.158 In the particular case of African hunter-gatherers, they are portrayed as communities that face “a shrinking of land base, pressures to subordinate themselves to state policies that limit their mobility and freedom of action particularly in the area of conflict with wildlife management policies … and strong pressures to assimilate to the cultural practices of their neighbours”.159 For ages, members of neighbouring groups and the wider society have considered and treated them as inferior human beings.160 Living at the bottom of the societal ladder, activists portray most of them as being on the verge of total annihilation or extinction, unless something is done to address their plight.161 However, ‘modernism’ and related changes that occurred since the colonial encounter in the second half of the 19th century (for most African countries), was not a result of a rational choice for most (members of) African communities considered as having better adjusted to changing national, regional and global realities. Several communities have constantly changed their means of subsistence over generations and the colonial encounter brought with it even more dramatic and rapid changes for many. There are clear cases of individuals from, or virtually entire communities of, hunter-gatherer or pastoralist societies who have adopted other modes of production throughout the relatively recent history.162

157 See J.Z.Z. Matowanyika, ‘In Pursuit of Proper Contexts for Sustainability in Rural Africa’, 11:2 The Environmentalist (1991) pp. 85–94; De Bruijn and Van Dijk, supra note 44, pp. 285–307. 158 Widely documented in IWGIA’s periodic Indigenous Affairs and Indigenous World publications. For more, see , visited on 8 May 2010. 159 Lee and Hitchcock, supra note 24, p. 260. 160 D.V. Joiris, ‘The Framework of Central African Hunter-Gatherers and Neighbouring Societies’, Supp. 28 African Study Monographs (2003) pp. 57–79. 161 See for instance the various reports by IWGIA, mainly the (yearly) Indigenous World, and the periodic Indigenous Affairs, at , visited on 12 October 2010. 162 See for instance the discussion on Batwa potters (Ceramists); on Arusha or Parakuyo (semi-)farmers in Ndahinda, supra note 26, pp. 67 et seq., for references to some individuals or communities that have re-adapted to other types of livelihoods. In fact, many of the indigenous representatives who travel throughout the world carrying their indigenous rights message are an example of re-adaptation to changing realities. 366 felix mukwiza ndahinda

At the same time, a large number of individuals and communities within African countries have both adapted to changing realities and environments while keeping their traditional ways and customs.163 Debates as to whether some communities were more naturally inclined to, and equipped for, changes that occurred in their livelihoods are certainly not subject to easy answers. It is a fact that most communities engaged in the indigenous movement have suffered, and continue to suffer from, the adverse consequences of disruption of their traditional lifestyles and means of subsistence. Indigenous rights activism insists on the linkages between historical injustices and present conditions. However, for the sake of clarity, the indigenous rights language needs to answer the question as to whether specific redress measures should depend on such factors as to whether the disruptions of traditional lifestyles were triggered by the pre-colonial dynamics, the colonial administrations, the post-colonial state, changing climatic and environmental conditions and/ or the mere course of history. The global indigenous rights agenda is promoted as a means of safeguarding communities against assimilation and helping them to preserve their distinctive identity.164 However, even if some groups are larger than others in African countries where indigenous claims are formulated, ideas of cultural and political dominance of particular identities should be much more nuanced. For instance, the substance of indigenous claims by the Maasai (among other claimant groups) appear to be less about cultural dominance of Kikuyu, Luhya, Luo (Kenya), Nyamwezi, Sukuma or Chaga (Tanzania).165 In the same vein, Twa marginality and activism is less about their cultural distinctiveness vis-à-vis the Hutus and the Tutsis (Burundi, Rwanda) or the numerous other communities in the Democratic Republic of Congo or Uganda. Substantive grievances by these and other

163 As extensively discussed in O. Vaughan (ed.), Tradition and politics: indigenous political structures in Africa (Africa World Press, Trenton, 2005). See also B. Oomen, ‘“Walking in the Middle of the Road”: People’s Perspectives on the Legitimacy of Traditional Leadership in Sekhukhune, South Africa’, in M. Hinz and F.T. Gatter (eds.), Global Responsibility: Local Agenda: The Legitimacy of Modern Self-Determination and African Traditional Authority (Lit Verlag, Münster, 2006) pp. 127–174. 164 For elaborations on the emergence of contemporary indigenous rights movement, see for instance Niezen, supra note 61, pp. 29 et seq.; Anaya, supra note 99, pp. 56 et seq. 165 The reality might slightly differ from country to country, with cultural distinctiveness being, arguably, more of an issue in Arabic-speaking countries of Northern Africa. For more on some of these groups, see S.H. Bukurura, ‘Indigenous Communication Systems: Lessons and Experience from among the Sukuma and Nyamwezi of West-central Tanzania’, 4:2 Nordic Journal of African Studies (1995) pp. 1–16. indigenousness in africa 367 claimant African indigenous groups rather insist on socio-economic and political salience of members of other communities within modern state structures inherited from the colonial order.166 In that respect, the main concern does not really seem to be about cultural survival of specific identities. In other words, cultural survival challenges are not an exclusive concern of claimant indigenous groups. The activities undertaken by various indigenous grassroots organisations, arguably, suggest that the most pressing needs have more to do with socio-economic and political empowerment of disadvantaged communities.167 Empowerment measures might differ, depending on whether claims are framed in terms of cultural preservation rather than socio-economic and political marginality. These nuances are important since, on an African continent harbouring a mosaic of socio-linguistic identities, the need for preservation of distinctive languages and cultures is shared by all ethno-cultural communities. Advocates of indigenous rights denounce attempts by African governments to sendentarise hunter-gatherers regardless of the underlying motivations. Motivations may range from self-interests of governments trying to access claimant indigenous peoples’ lands to (arguably) genuine social policies aimed at availing infrastructural facilities to relevant communities such as schools and water supply for the San/Basarwa of Botswana.168 In the particular case of hunter-gatherer communities of the central African rainforests estimated to be between 250,000 and 300,000 people, Kenrick suggests that some 95,000–131,000 still live in, or have direct and regular access to, the forest.169 If these figures are to be trusted, this means that somewhere around half of (former) hunter-gatherers of central Africa – including some 60,000–76,000 Twa ‘potters’ – no longer live in, or by, their ‘natural’ rainforests.170 Similarly, many eastern African

166 It is, however, necessary to stress the fact that the cultural versus socio-economic and political dichotomy is not an absolute one. 167 See Ndahinda, supra note 26, chs. 6 and 7. 168 For the rationales behind policies of sendatarisation, see Roy Sesana Keiwa Setlhobogwa and Others v. The Attorney General, High Court of Botswana held at Lobatse, Misca. No. 52 of 2002, 13 December 2006, para. 21–34 (Justice Dow judgment), on the discussion of the government’s contentions about the rationale behind the CKGR move. See also J. Kenrick, ‘Present Predicament of Hunter-Gatherers and Former Hunter- Gatherers of the Central African Rainforests’, in Barnard and Kenrick, supra note 89, pp. 39–60; D. Vinding and E. Waehle, ‘Focus on Hunter-Gatherers of Equatorial Africa: Human Rights and Development Challenges’, 4 Indigenous Affairs (1996) pp. 13–21. 169 See Kenrick, supra note 167, pp. 43 and 52. These figures include groups listed as still living in the forest and the estimate of Twa of the Great Lakes Region still living in the forest. 170 Ibid., p. 55. 368 felix mukwiza ndahinda hunter-gatherers communities no longer live in, or only by, the forest. In addition to this relatively small population of African (former) hunter- gatherers, there are several millions of pastoral and nomadic societies living in Eastern, Central, Western, Northern and Southern Africa (as elaborated in Section 2.1.2.). The continuation of traditional lifestyles of African pastoralists and hunter-gatherers requires expansive spaces and sustainability of natural resources upon which these lifestyles rest. Activism by, or for, claimant indigenous peoples in Africa insists on the fact that there is a need to restrict access to their shrinking resources (forests or grazing lands) by members of other communities, and to respect the willingness of relevant communities to lead their traditional and ancestral way of life.171 There are many reasons – demographic growth and increasing scarcity of resources – that might render such restrictions neither effective nor realistic. Legitimate calls for governments to address urgent problems of landlessness and other forms of precariousness of the livelihoods of claimant indigenous peoples leave unanswered questions as to how this should be practically translated into reality. Designation of all Central Africa’s hunter-gatherers as forest peoples seems to suggest that since the forest is the natural environment of these communities, recognition of their indigenous rights implies that they should be granted re-access to ‘ancestral’ forests.172 Discussions with individuals and groups of Twa potters suggested that a return to forest life, even in the most ideal of circumstances, might not be the primary aspiration of communities whose natural bond, if any, with that particular environment and lifestyle is not (any longer) a contemporary reality.173 There is evidence to the fact that the pressing need of Twas of Rwanda might be to see an end to their discrimination and to have equal access to opportunities enjoyed by other Rwandans, including the right to land, education, healthcare and fair representation in state structures.174

171 See for instance the various (nuanced) contributions in IWGIA, 2 Indigenous Affairs (1999), focusing on participant African groups in the global indigenous movement. 172 On the ‘Forest People’ appellation, see the various Africa-related reports by FPP, , visited on 5 May 2009. 173 Interviews with members of Batwa communities in Nyaruguru and Gasabo, Rwanda in June and July 2008. 174 Ibid. indigenousness in africa 369

5. Conclusion

Since the last two decades, indigenous rights activism is a real phenomenon that is part of the African socio-political landscape. Claimant indigenous groups assert their cultural difference as they denounce their socio-political marginalisation and economic deprivation. They have coalesced with other groups, activists and donors in advocating their rights as indigenous peoples. Like in other parts of the world, their substantive indigenous claims revolve around political and socio-economic self-determination. More specifically, claimant groups denounce their pre-colonial marginalisation (mostly for hunter-gatherers) as well as colonial and post-colonial injustices to justify the quest for special protection of their identities. Pressures on ancestral lifestyles due to climatic changes or human activity are further reasons used by some ethno-cultural groups inhabiting forests, arid and semi-arid environments to justify their claims for special protection. Some African countries’ legislative, executive or judicial bodies have taken steps in either debating or recognising indigenous rights. At the regional level, the ACHPR has lent its institutional support to indigenous rights promotion and protection in Africa. Debates over indigenousness in Africa have revolved around opposed views between activism by, or alongside, groups presented as dispossessed, marginalised and subjugated by ‘mainstream society’ on the one hand, and reservations over the exclusive appropriation of this identity by some groups in multi-ethnic states, out of fears that such dynamic embod- ies long-term negative implications on the other.175 Since a large number of groups fulfil or are likely to fulfil the loose identification criteria for indigenousness – the example of Kenya with some 25 claimant indige nous ethno-cultural communities is eloquent – many African states are hesitant or adamantly opposed to domestic applicability of the indigenous rights legal framework. References to ‘African indigenous peoples’ in a number of writings are essentially a result of generalisations and transposition of realities from other continents to a context where local realities are hardly taken into consideration or seriously examined.176 It is

175 On these debates, see Hodgson, supra note 49, pp. 1037–1049; Kuper, supra note 82, pp. 389–402; Barnard, supra note 17, pp. 1–6; Guenther et al., supra note 17, pp. 17–31; M. Asch et al., supra note 83, pp. 261–268. 176 It is clear in writings of such legal and/or political philosophers as Kymlicka that their theorisations are primarily concerned with societies of European settlement. See Kymlicka and Norman, supra note 152, pp. 297–342. This is acknowledged in ch. 12 by J.T. Levy, ‘Three Modes of Incorporating Indigenous Law’, p. 318. 370 felix mukwiza ndahinda therefore not surprising to note that a number of anthropologists and other scholars with extensive knowledge and familiarity with African realities have expressed sceptical positions vis-à-vis the indigenousness as a relevant form of identification, a suitable legal category with empowering attributes.177 Grounding on nearly two decades of participation by some African groups in international, regional and even national networks and institutions, a number of activists, scholars and (mainly Western) governments view the process of recognition of indigenous rights in Africa as imperative and irreversible. Whether presented as a strategic tool for political persuasion in the battle for equal and specific rights, or as an endeavour aimed at safeguarding threatened cultures of first peoples, the rising number of claimant groups and opportunistic resort to indigenousness for political and socio-economic advantage legitimise any questioning of its appropriateness. The resulting immediate political and material benefits, including gaining the much needed national and international visibility, are undeniable. Doubts, however, subsist on the long-term effects that crystallisation of this new form of group identification will have on harmonious relations between various communities and on national cohesion. Most African countries are inhabited by several ethnic groups established on their territories for several centuries, if not millennia. With few exceptions, cultural heterogeneity of most African states is hardly contested. Despite the fact that some entire groups have historically been marginalised in political and socio-economic spheres, the often used dichotomisation between ‘internally colonised indigenous communities’ and ‘dominant mainstreams’ holds a limited relevance in those inherently heterogeneous countries where there is no cognisable and immutable dominant group in all spheres of life. In many cases, marginality and the destitute status of particular groups is a result of geographical and socio- economic dynamics than a result deliberate politics of exclusion. Groups geographically located in the peripheries of epicentres of political and socio-economic life of particular countries have generally been the last beneficiaries of developmental or participatory policies. This description matches a wide number of rural African entire communities,

177 In this respect, see Suzman, reply in Kuper, supra note 82, pp. 399–400; Hodgson, supra note 49, pp. 1041 et seq.; Sylvain, supra note 85, pp. 354–370; but also Alfonso Martinez in E/CN.4/Sub.2/1995/27; and more generally Thornberry, supra note 79, pp. 37–40. indigenousness in africa 371 far beyond the limited number of communities enlisted in the global indigenous movement. In others cases, political and socio-economic marginality of particular groups in postcolonial African states is, arguably, a result of policies irresponsibly carried out over the years by some elites with limited foresight in their leadership. Adherence by the postcolonial state to development models giving preference to settled (agricultural) lifestyle over pastoralism or hunting-gathering culminated in progressive impoverishment of groups living by the latter modes of production. Relative marginality of claimant indigenous groups is generally not contested in many African states. Furthermore, the need for concerted action in addressing their current situation, taking into consideration their identity, is hardly questioned. The main source of contention is the idea that “some Africans are indigenous while others are not or that some are more indigenous than others”.178 Conceptual rejection by governments and other actors of ‘indigenous peoples’ as an applicable legal and social category in Africa carries an adverse effect on (at least some) claimants’ substantive and legitimate demands for special protection as the most disadvantaged members of societies where they live. It has been argued that “if Africans had been at the UN table at the start of the UNWGIP process, they could have emphasised that the issue is not aboriginality, but rather the ongoing particular relationship of hunter-gatherers and pastoralists to natural resource management”.179 The questioning of indigenous claims in Africa does not dispute the pressing need to address the root causes of marginality and disempowerment of claimant communities, taking into consideration the landscapes in which solutions are to be framed. Critics of indigenous rights in Africa argue that arrangements to protect particularly vulnerable communities would lead to long-lasting solutions only if they holistically address socio-political and economic sources of marginality of not only claimant indigenous but also other communities.

178 J. Woodburn, ‘The political Status of Hunter-Gatherers in Present-Day and Future Africa’, in Barnard and Kenrick, supra note 89, p. 12. The author argues in favour of emphasising the status as ‘first peoples’ meaning ‘first owners of land’ than indigenous peoples, perceived as applicable to all Africans. 179 Burman, supra note 89, p. 10.

ENGAGING THE LEVIATHAN: NATIONAL DEVELOPMENT, CORPORATE GLOBALISATION AND THE ENDOROIS’ QUEST TO RECOVER THEIR HERDING GROUNDS

Korir Sing’Oei*

1. Introduction

The socio-economic position of the Endorois, an indigenous minority group in Kenya’s Rift Valley region, is a function of their pastoralist culture interacting with a state whose developmental imperative is to modernise through markets. The marginal position occupied by pastoralism in the economic matrix of the state has led to its de-emphasis in favour of economic activities that respond to market demands, in this case, tourism, mining and energy extraction. But in order to achieve this national aspiration, the Endorois were forcefully evicted by the Kenyan state with the consequent loss of livelihood, culture and religion. I begin by providing a contextual appraisal of the Endorois community and place their struggle within the framework of Kenyan law. I then ana lyse the proceedings of the Endorois case at the African Commission on Human and Peoples’ Rights, including an interrogation of the Commis sion’s decision from the perspective of comparative human rights. The last part of the article considers the impact of the Commission’s decision in Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRG) (on behalf of the Endorois) v. Kenya1 in addressing the role of corporations in human rights violations/protection. Conversely, this part of the article will attempt to respond to Ayse Betul

* Former co-counsel for the Endorois; Founding Trustee, Centre for Minority Rights Development, Kenya; Doctoral candidate, Tilburg Law School, Tilburg, The Netherlands. 1 Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRG) (on behalf of the Endorois) v. Kenya (Feb. 2010), African Commission on Human and Peoples’ Rights, Communication (decision on merits), Communication 276/2003, at , visited on 1 June 2011 (hereinafter the “Endorois Decision”). The Complaint was filed on 29 August 2003 (hereinafter the “Complaint”). The Complainants’ submissions on merits were filed on 19 July 2005 (hereinafter the “Complainants’ Merits Submissions”) while the Kenya State Response to the complaint was filed on 31 July 2006 (hereinafter the “State Response”). 374 korir sing’oei

Celik’s question: “[T]0 what extent [are] international mechanisms, norms and reconceptualizations influential in forcing states to comply, especially in areas that they consider sensitive or untouchable?”2 Given the near untouchability3 of corporate interests in Africa, this article assesses the possibility that decisions of international or regional human rights bodies could provide incentives for re-configuring the asymmetrical power relationship between corporate interests and indigenous peoples in the continent.

2. A People and Their Land

2.1. The Endorois “Peoples” The Endorois are a distinct Kalenjin speaking community, and the original inhabitants of the Lake Bogoria area within Kenya’s Rift Valley region.4 The community numbers approximately 400 families (just over 10,000 people according to the 2009 Kenyan census). These families have been practitioners of the pastoralist lifestyle in this location since time imme- morial. The Endorois depend upon their livestock for survival, grazing their animals near Lake Bogoria during the rainy seasons, while turning to the Mochongoi forest in the dry seasons. The land surrounding Lake Bogoria is extremely fertile, providing green pastures as well as medicinal salt licks vital for their livestock’s health. Equally important, Lake Bogoria

2 A.B. Celik, ‘Transnationalization of Human Rights Norms and Its Impact on Internally Displaced Kurds’, 27:3 Human Rights Quarterly (2005) p. 973. 3 Globalisation has expanded the role of corporate actors with regards to them performing some functions traditionally carried out by states in Africa, especially socio-economic rights provisions. The human rights questions arising from the apparent withering of the state and the ubiquitous role of corporate power has been analysed elsewhere. See generally, J. Oloka-Onyango, ‘Who’s Watching “Big Brother”? Globalization and the Protection of Cultural Rights in Present Day Africa’, 27:4 Human Rights Quarterly (2005). 4 The Kenyan government (Respondent State) questioned this assertion and argued that the Endorois were not a distinct group but only a sub-group of the Tugen community in Baringo. See Endorois Decision, supra note 1, para. 161. The Respondent State during the oral hearings at the 40th Ordinary Session in Banjul, The Gambia, stated that: “(a) the Endorois do not deserve special treatment since they are no different from the other Tugen sub-group, and that (b) inclusion of some of the members of the Endorois in ‘modern society’ has affected their cultural distinctiveness, such that it would be difficult to define them as a distinct legal personality (c) representation of the Endorois by the Endorois Welfare Council is allegedly not legitimate”. Cf. Case of the Saramaka People v. Suriname (Judgment of 28 November 2007), Inter-American Court of Human Rights (IACtHR), Series C No. 172, at paras 80–84. engaging the leviathan 375 is integral to the religious and cultural practices of the community. Narratives on the Endorois’ conception of the self are bound up with the L. Bogoria territory and livestock ownership.5 Disconnected from these factors, their dignity and collective survival from both a socio-psychological as well as material perspectives appear imperilled. Baringo, the district where L. Bogoria is situated and the home of the Endorois, was the nerve centre of Kenyan and Rift Valley politics from the 1960s to the present. Daniel Arap Moi, Kenya’s long serving former president and a champion of the one party state, hails from the Tugen community, a more dominant group of the Kalenjin, and was Member of Parliament for Baringo through his 40 year-long tenure in active politics. His rule was known for the suppression of opposition at the national level,6 and Moi was even less accommodative of any plurality at the local level. It is therefore unsurprising that Moi was outright hostile to the Endorois’ attempts to frame themselves as distinct from his Tugen tribe, instead referencing them as a small clan of the larger Tugen. Given this hostile political environment, the Endorois’ attempts to pursue a political settlement to their land claims failed. While it has been a key policy goal of the state since independence in 1964 to expand tourism earnings in Kenya, the collapse of global prices for its main export crops, coffee and tea, in the late 70s increased the pressure on the government of Kenya to look for other sources of foreign currency. Tourism was the natural and viable alternative. The tourism model adopted by the Kenyan state was to convert any pristine savannah country teeming with wildlife into protected areas and to empty these spaces of human inhabitants. The attempt to recreate an exotic state of “wild and freshness of nature’s beauty”7 for the enjoyment of international tourists resulted in the annexation of the Endorois’ territory into a national park. As will become evident in the following discussion, a legal framework that did not adequately protect common property regimes located in customary law facilitated this annexation.

5 Sworn Statement of Richard Yegon in support of the Endorois Communication (on file with author). 6 J. Barkan, ‘Kenya After Moi’, Foreign Affairs (January/February 2004), at , last visited 6 April 2011. See also Human Rights Watch/Africa, Failing the Internally Displaced: The UNDP Displaced Persons Program in Kenya (HRW, New York, 1997) p. 36. 7 M. Colchester, ‘Conservation Policy and the Indigenous Peoples of the Commonwealth’, paper presented to the conference ‘Indigenous Peoples of the Commonwealth and the Millennium Development Goals’, London, University of London, 20–21 March 2003, p. 5. 376 korir sing’oei

2.2. The Legal Character of Endorois’ Land under Kenyan Law Kenya’s political economy of land did not change much during the immediate post-colonial phase.8 Land hitherto forcefully appropriated from African communities, particularly in Kenya’s “white highlands” in the Rift Valley and Central provinces, was protected as private property in the hands of either white or African elite, instead of being redistributed at the end of colonial rule. The unresolved land questions rooted in colonial dis- possessions constitute an important cause of communal grievances giving rise to untold conflicts, the culmination of which was the post-electoral violence in 2007. While the failure of the electoral system to deliver credi- ble outcomes was the proximate cause of the resulting mass atrocities, historical grievances around land in Kenya’s Rift Valley region was, in the main, the underlying structural cause of this violence.9 Partly owing to the ecological fragility of the Endorois’ land, the community’s traditional territory was spared of much of colonial land grab.10 Although all land in Kenya was declared “crown lands” via the Crown Lands Ordinance of 1915,11 Endorois’ land was “reserved” by colonial authorities from lease, sale or any other disposition since it was “required for use or support … [ of an] aboriginal native tribe”.12 The

8 See generally H.Okoth-Ogendo, Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya (ACTS Legal Studies Series, Acts Press, Nairobi, 1991). 9 See e.g. C. McGreal, ‘Who’s to blame? It depends where you begin the story’, The Guardian (7 February 2008), at , last visited 1 June 2011. Citing land inequality the paper argues: “The extended Kenyatta family alone owns an estimated 500,000 acres (2,000 square kilometres). That represents a large chunk of the 28 million acres (113,000 sq km) of arable land in Kenya. The remaining 80 per cent of the country is mostly semi-arid and arid land. The Kenya Land Alliance says more than half the arable land in the country is in the hands of only 20 per cent of the population. Two-thirds of the people own, on average, less than an acre per person. There are 13% who own no land at all.” Kofi Annan’s prescription aimed at securing long-term stability in Kenya after the 2007 violence included the recognition that land was a source of “economic, political, social and environmental problems in Kenya” and recommended fundamental reforms to the sector. See Kenya National Dialogue and Reconciliation, Statement of Long Term Issues and Solutions (30 July 2008), at , last visited 1 June 2011. Subsequently, Kenya adopted a National Land Policy in 2009 and incorporated most of its policy recommendations in the new Constitution adopted in August 2010. 10 The other reason is arguably the geographical location of this territory. Baringo was one of the ‘closed’ districts by virtue of a colonial statute, the Outlying Districts Ordinance, 1902 (now repealed). 11 The effect of the Crown Lands Ordinance of 1915 was to render native tribes in Kenya ‘tenants at the will of the Crown’. See Wainaina v. Murito, 23:9 Kenya Law Report (1922) p. 102. 12 Kenya Colony, Crown Land Ordinance, 1915, Section 25. engaging the leviathan 377 creation and survival of a “reserve” was entirely within the discretion of the Protectorate’s administration. Colonial status in 1920 resulted in the enactment of the Native Lands Trust Ordinance 1938 which re-designated “reserves” as “native lands” and removed their control totally from the 1915 Crown Lands Ordinance. The land earmarked as “natives lands” was vested in the Natives Lands Trust Board to administer the “occupation, use, control, inheritance, succession and disposal of any land situated in the native lands” in accordance with “existing native law and custom or any subsequent modification thereof”.13 At independence, native lands became trust land defined in sections 114–116 of the independence Constitution,14 and regulated by the Trust Lands Act.15

2.3. The Illegal Taking of Endorois’ Land? Under Kenyan law, property in trust land is vested in a public body, to wit, County Councils, subject to the beneficial ownership of communities “ordinarily resident” in the land.16 This implies that trust lands under Kenyan law (before the adoption of the new Constitution 2010) are quasi- public in character. Inarguably then, when the Kenyan state desires to acquire trust land for a specific public purpose – a process known to Kenyan law as “setting aside” in contrast to “compulsory acquisition” – the rules that govern the exercise of the sovereign’s eminent domain17 are severely constrained.18 The disadvantages flowing from the weak legal

13 Ibid., Section 68. 14 Section 115(1) of the Constitution (repealed 23 August 2010) of Kenya provides: “All Trust land shall vest in the County Council within whose area of jurisdiction it is situated.” Section 115(2) also provides: “Each county council shall hold the Trust land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests or other benefits in respect of the land as may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual.” 15 Laws of Kenya, Trust Land Act, Chapter 288 of 1963. 16 Ibid. Section 69 of the Act provides: “In respect of the occupation, use, control, inheritance, succession and disposal of any Trust land, every tribe, group, family and individual shall have all the rights which they enjoy or may enjoy by virtue of existing African customary law or any subsequent modifications thereof, in so far as such rights are not repugnant to any of the provisions of this Act, or to any rules made thereunder, or to the provisions of any other law for the time being in force.” 17 P. Veit et al., Protected Areas and Property Rights: Democratizing Eminent Domain in East Africa (World Resource Institute, Washington DC, 2007), at , last visited 1 June 2011. 18 Section 75, Constitution of Kenya Act (repealed in August 2010 but operative during the Endorois litigation) provided for the protection of ‘property of any description’ from 378 korir sing’oei protection of a community’s beneficial ownership under the trust lands arrangement become evident in the case of the Endorois. Beginning in 1973, the government designated the most important parts of Endorois land as a game reserve.19 This decision was not preceded by prior informed consultation “in good faith and through the representative institutions” of the community in line with international standards.20 All that happened was unilateral promises made by the state ostensibly to ameliorate the resulting vulnerabilities arising from the group’s impend- ing displacement. Unfettered access to L. Bogoria, construction of cattle dips, building of schools, and most importantly relocation to land of equal compulsory possession or acquisition unless such possession or acquisition complied with several conditions: public purpose for the acquisition, proportionality of public purpose to private hardship expected from the compulsory acquisition, prompt payment of compensation, access to court for aggrieved parties. While the Land Acquisition Act (Chapter 295) prescribes a comprehensive procedure for compulsory acquisition, the Trust Lands which established the procedure for ‘setting aside’ of trust lands in contrast has much weaker protections, particularly for communities: “Where written notice is given to a council, under subsection (1) of section 118 of the 1963 Constitution, that an area of Trust land is required to be set apart for use and occupation for any of the purposes specified in subsection (2) of that section, the council shall give notice of the requirement and cause the notice to be published in the Gazette. (2) Before publishing a notice under subsection (1) of this section, the council may require the Government, within a specified reasonable time – (a) to demarcate the boundaries of the land, and for this purpose to erect or plant, or to remove, such boundary marks as the council may direct; and (b) to clear any boundary or other line which it may be necessary to clear for the purpose of demarcating the land; and, if the land is not demarcated within the time fixed by the council, or if the person or body on whose application the land is to be set apart so requests, the council may carry out all work necessary for the demarcation of the land and require the applicant to pay the cost of the demarcation, (3) A notice under subsection (1) of this section shall specify the boundaries of the land required to be set apart and the purpose for which the land is required to be set apart, and shall also specify a date before which applications for compensation are to be made to the District Commissioner. (4) Where the whole of the compensation awarded under section 9 of this Act to persons who have applied before the date specified in the notice given under subsection (1) of this section has been deposited in accordance with section 9 of this Act, the council shall make and publish in the Gazette a notice setting the land apart.” Trust Land Act, supra note 16. 19 Kenya government Gazette Notice No. 239 of 1973 set apart the land as the Lake Hannington Game Reserve. The Lake Hannington Game Reserve was revoked by Gazette Notice No. 270 of 1974 and renamed the Lake Baringo Game Reserve. See also State Response to Endorois Complaint, supra note 1, p. 2, para.5. 20 ILO Convention 169, Convention concerning Indigenous and Tribal Peoples in Independent Countries (entry into force 5 September 1991), Article 6. engaging the leviathan 379 value constituted the most significant promises made by state officials to the community leadership.21 The state did not extend any real choice to the community, neither inviting it to reject, amend or accept the proposed development intervention. The removal of the community from L. Bogoria procured in this context of unequal bargaining power and coercion was neither consensual nor based on informed appreciation of the scope of state’s intrusion on the community’s livelihood. It is unclear whether the process was fully compliant with even the minimalist requirements of section 7 of the Trust Lands Act. The interaction between the central government and County Council of Baringo on the one hand and the Endorois community on the other in the process of setting aside is equally uncertain. What is clear, however, is that the gravity of legal consequence of such setting aside is not dissimilar to action on compulsory acquisition of private property by the state. In both cases, the effect is to “extinguish any estate, interest or right in or over the land or any part thereof that may be vested in any person or authority”.22

2.4. The Consequence of Inadequate Property Rights Protection The weak legal protection of rights of communities “ordinarily resident” in trust land has led to at least two effects: corporate privatization of these lands or exploitation of natural resources appurtenant thereto without much challenge by communities. In the case of the L. Bogoria Game Reserve, several powerful state and non-state interests are involved, including the Kenya Wildlife Services (KWS), Kenya Electricity Generation Company (Kengen), private hoteliers, universities and mining companies. These developments are defined as beneficial to the ‘nation’, but have a disproportionate negative impact on the local community both in terms of environmental destruction and threats to livelihood security. KWS is a state corporation established by statute.23 The Wildlife (Conservation and Management) Act of 1976 amalgamated the then Game Department and the Kenya National Parks to form a single agency, the Wildlife Conservation and Management Department (WCMD) and mandated it to manage wildlife. Subsequently, through an amendment to the Act in 1989, the Kenya Wildlife Service was established to replace

21 See Witness Statement of Richard Arap Yegon, dated 15 August 2005 (on file with author). 22 Section 75(3), Constitution of Kenya Act (repealed), supra note 15. 23 Republic of Kenya, Wildlife (Conservation and Management) Act, Chapter 376. 380 korir sing’oei

WCMD.24 KWS now coordinates the wildlife protection and tourism industry which earns the country in excess of USD 1 billion annually. KWS has initiated the process to transform L. Bogoria into a UNESCO World Heritage Site. Lake Bogoria National Reserve is famous for its numerous geysers and springs. A spa hotel, the Lake Bogoria Hotel owned by Merica Group of Hotels associated with Kenya’s former president, Daniel Moi, is located within the park. The lodge is 300 kilometres away from Nairobi and 150 kilometres from L. Nakuru National Park, the renowned habitat of flamingos. In 2001, Corby Ltd., a Kenyan firm with political links to the ruling elite, was licensed to mine red rubies close to Wasseges River which feeds into L. Bogoria. The local community had no involvement with the project. The mining activities involved heavy excavation and movement of soil and rock as well as heavy extraction of water from the river.25 The serious environmental ramifications of the mining activities were reported to Kenya’s environmental agency in 2004 by the community but no action was taken. Reports indicate that the mining activity impaired an important source of water for the community: The river is now said to be heavily polluted by heavy metals and chemicals used for cleaning rocks in the mining process. It is reported that drinking the water from the river results in sickness, vomiting and diarrhoea. Despite this, no environmental impact assessment has been carried out due to a loophole in Kenya’s Mining Act that allows extraction activities to proceed without an impact study if these activities are classified as “exploration” rather than “mining”.26 Earlier, researchers from the University of Leicester had studied the micro-organisms in Kenya’s Lake Bogoria in the 1990s. A biotechnology firm, Genencor International, sold an enzyme it had extracted from one of the organisms found in Lake Bogoria – a special type called an “extremo- phile” – to Procter & Gamble, its business partner. Procter & Gamble ultimately used this enzyme to develop an extremely successful line of “Tide

24 Ibid., Section 3. 25 See Field Gemology Blog at , last visited 5 June 2011. 26 International Commission of Jurists, Kenya World Organisation Against Torture Centre for Minority Rights Development, The Lie of the Land: Addressing the Economic, Social and Cultural Root Causes of Torture and Other Forms of Violence in Kenya (An Alternative Report to the Committee on Economic, Social and Cultural Rights, 2008), p. 6, at , last visited 1 June 2011. engaging the leviathan 381 bleach” that was used to stonewash denim. While Genencor adamantly defended its “biodiversity expeditions”, no informed consent either from the indigenous Endorois or the Kenyan state preceded the research. In 2004, the Kenyan Wildlife Society in conjunction with the International Centre for Insect Physiology and Ecology (ICIPE) announced their intention to bring an international lawsuit against Genencor for its violation of intellectual property rights.27 The community’s role in the intended litigation was never defined, and to date the community has not been informed about any action taken by the state. Kengen, a state owned public company involved in energy generation, in its quest to diversify energy sources to drive Kenya’s quest for an industrial economy, has identified L. Bogoria as an important site for geothermal energy production. The Endorois community does not expect to benefit from the project, because the experience of communities around Lake Naivasha is similar: there geothermal energy has been generated for at least 15 years without any benefit going to indigenous and local communities.28 Environmentalists have argued that the excessive release of sulphur oxide associated with geothermal energy generation will result in acid rains that will further destroy the fragile L. Bogoria ecosystem and the community’s livestock based livelihoods will be further jeopardised.

3. The Judicial Struggle of the Endorois

3.1. The Endorois in Kenyan Courts By the early 1990s, it was certain that none of the informal commitments made by the Kenyan government to the Endorois would be met. In the 20 years of waiting for the state to fulfil its promises, a community which hitherto was independent in its food security, had been reduced to a state-dependent group of internally displaced persons. Confronted with bleak prospects, the community began to organise and mobilise itself

27 A.Barnett, ‘Multi-million bio-piracy Lawsuit over Faded Jeans and African Lakes’, The Observer (5 September, 2004), at accessed on April 2, 2011. 28 K. Sing’Oei, The Case of the Olkaria Maasai: Harmful Development Processes and the Culpability of the State (2005), available at , last visited 5 April 2011. See also N. Bw’Obuya, The Socio-Economic and Environmental Impact of Geothermal Energy on the Rural Poor in Kenya (2002), available at , last visited 5 April 2011. 382 korir sing’oei taking advantage of the political opportunities emerging from the global democratisation movement whose effects were beginning to impact the country. Indeed, the community’s legal struggle was seen as the first real political challenge to Moi’s stranglehold over his Baringo backyard.29 While the political praxis of the state underwent some marginal changes after the re-introduction of multiparty politics, the justice system- underpinned by a weak constitutional order and sustained by a conservative judicial culture-remained a bastion of retrogression. Consequently, rather than attack the entire trust land framework, the Endorois’ strategy was to use principles of the law of trusts to provide some form of limited remedy to the community’s grievances.30 The Endorois community first launched their campaign in Kenya’s domestic courts, challenging the manner in which the Baringo and Koibatek county councils – the joint trustees of the L. Bogoria trust land – exercised their trusteeship.31 Specifically, the community questioned the allocation of revenue collected from the park, which left the community out of the profit structure and, consequently, poor and destitute. The community also challenged the legality of their eviction from the park. Furthermore, the community contended that continuous denial of access to grazing land as well as cultural and religious sites within the park violated their constitutional and statutory rights.32

29 The involvement of Paul Muite, Mirugi Kariuki and Kiplenge Juma, well known lawyers associated with the opposition parties then, meant that the Endorois’ struggle was framed as part of the broader anti-Moi project. 30 Section 59 of the Act provides: “Save in regard to matters wherein express provision is made in this Act, Trust land shall be subject in all respects to the general law from time to time in force.” Trust Lands Act, supra note 16. The import of this provision is that general law on trusts is definitive of the relationship between the County Council holding the trust land (Trustee) and the beneficiary community (in this case, the Endorois). Common law courts have observed that “a trustee shall not be permitted to use the powers which the trust may confer upon him at law, except for the legitimate purpose of his trust”, per Sir James Wigram in Balls v. Strutt (1841), 1 Hare 146, at 149, cited with approval in Cowan v. Scargill (1985) Ch 270. 31 High Court of Kenya (Nakuru), William Ngasia and Others v. Baringo County Council and Others, Miscellaneous Civil Case No. 183 of 2000. The Endorois filed this application in the High Court, seated in Nakuru, under Section 84 of the Kenyan Constitution. The High Court heard the case on 19 August 2000 and delivered the judgement on 19 April 2002. Endorois Complaint, supra note 1, p. 23, para 98. 32 Specifically, the Endorois sought the following orders: i. A declaration that the land around Lake Baringo is property of the Endorois community held in trust for their benefit by the county council of Baringo and the County Council of Koibatek under Sections 114 and 115 of the Constitution of Kenya; engaging the leviathan 383

The Kenyan High Court dismissed the Endorois’ claim upon a finding that “the law did not allow individuals to benefit from such a resource simply because they happen to be born close to the natural resource”.33 The legal conclusions indicate the extent of the court’s failure to engage with the broader issues raised by the Endorois’ claim, particularly: • The nature of trust duties arising under the Trust Lands Act, including the corresponding rights of communities thereunder; • The status of Endorois’ native title whether it was extinguished by the setting apart; • The entire gamut of human rights violations claimed to have arisen following the community’s eviction.34

ii. A declaration that the County Council of Baringo and County Council of Koibatek are in breach of fiduciary duty of Trust to the Endorois community because of their failure to utilize benefits accruing from the game reserve to the benefit of the community contrary to Sections 114 and 115 of the Constitution of Kenya; iii. A declaration that the Applicants and the Endorois community are entitled to all the benefits generated through the game reserve exclusively and/or in the alternative the land under game reserve should revert to the community under the management of Trustee appointed by the community to receive and invest the benefits to the interest of the commu7nity under section 117 of the constitution of Kenya; iv. An award of exemplary damages arising from the breach of the Applicants constitutional rights under Section 115 of the Constitution of Kenya. Ibid. 33 William Ngasia and Others v. Baringo County Council and Others, High Court Miscellaneous Civil Case No. 159 of 1999. Justice David Rimita granted leave on 1 July 1999 and Miscellaneous Civil Case No. 183 of 2000 proceeded to the High Court of Kenya at Nakuru on 19 August 2000, Endorois Complaint, supra note 1, p. 23, para. 98. 34 Section 115(1) of the Constitution (repealed 23 August 2010) of Kenya provides: “All Trust land shall vest in the county council within whose area of jurisdiction it is situated.” Section 115(2) also provides: “Each county council shall hold the Trust land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests or other benefits in respect of the land as may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual.” Supra note 15. These provisions excluded water masses and mineral deposits from the general control of local authorities. This Section also subjected the application of African customary law to statutory law as well as the dictates of public morality and health. Kenya’s trust doctrine has dubious foundations in paternal- ism. One political unit is viewed to lack the capacity to fully manage its own affairs is subjected to some measure of supervision and control by a higher authority. For instance, colonisation of Africa was predicated on the principle that colonial powers would “watch over the preservation of native population and the improvement of the conditions of the moral and material well being”. See General Act of the Berlin Conference, Article 6 (26 February 1885) (Official Documents (1909) 3 (Supp) 7 American Journal of International Law, in R. Pinero, Indigenous Peoples, Postcolonialism and International Law: The ILO 384 korir sing’oei

While the Endorois community appealed against the High Court judgement, uncertainty as to the existence of right to appeal,35 and the sheer inefficiency of the Kenyan court system conspired to deny the community further national remedy.36 Kenyan courts acted consistently with other courts in East Africa in their utter disregard for property rights not located in written statutes.37 This conservative streak has reduced the utility and relevance of courts as mechanisms for arbitrating complex historical land claims. Recognising the futility of pursuing remedies at the domestic level, the Endorois sought redress at the African Commission on Human and Peoples’ Rights. By a Letter of Intent forwarded on 22 May 2003, an Admissibility Petition submitted in August 2003 and various Merits Petitions submitted thereafter, the Endorois placed their claim solidly within the protective jurisdiction of the African Commission.

Regime (1919–1989) (Oxford University Press, London, 2005) p. 20. The League of Nations internationalised and legitimised trusteeship as a sacred trust that civilisation owed to those “peoples not yet able to stand by themselves under the strenuous conditions of the modern world”. Covenant of the League of Nations, Article 22, 225 CTS 195 (1919), in Pinero, this note, p. 21. 35 The Kenyan Constitution Act (repealed), supra note 15, provided for a right of appeal by virtue of Section 84(7) “against determinations of the High Court … as of right”. This section of the Constitution was introduced in 1997 as an amendment to the Constitution of Kenya, effectively overruling common law decisions, such as Anarita Karimi Njeru v. The Republic (No. 2), (1979) Kenya Law Reports, p. 162, which had suggested that there was no right of appeal. Even with this amendment, the courts were still reluctant to consider appeals on human rights issues. 36 In Kenya, court proceedings are hand written and have to be typed after judgement has been issued, and only on request by an aggrieved party and at their cost. No certified copies of proceedings in relation to the Endorois high court case had been prepared two years after the Notice of Appeal had been lodged, which effectively froze any possible appeal. Endorois Complaint, p. 2, para. 6. 37 The Ogiek, a hunting gathering community, has for three decades years sought to have their ancestral land claim arbitrated by the Kenyan courts without success. See e.g. High Court of Kenya (Nakuru), Francis Kemei, David Sitinei and others v. The Attorney General, the PC Rift Valley Province, Rift Valley Provincial Forest officer, District Commissioner, Miscellaneous Civil Application No. 128 of 1999. Court argued in obiter dictum thus: “If hunting and gathering in a territory were in themselves alone to give automatic legal proprietary rights to the grounds and soils we hunt and gather upon, then those who graze cattle nomadically in migratory shifts everywhere according to climatic changes would have claimed ownership of every inch of every soil on which they have grazed their cattle.” See also A.K.Barume, ‘Indigenous battling for land rights: The case of the ogiek of Kenya’, in J. Castellino and N. Walsh, International Law and Indigenous Peoples (Martinuus Nijhoff Publishers, Boston, 2005) pp. 365–392. engaging the leviathan 385

4.2. Proceedings before the African Commission on Human and Peoples’ Rights The African Commission is an institution of the African Union38 created under the African Charter on Human and Peoples’ Rights.39 As a quasi- judicial body, the African Commission has both a protective and promotional mandate.40 Under its promotional mandate, the Commission is empowered to “formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legis- lations”.41 In pursuit of this objective, the African Commission undertakes country visits and missions,42 and has several thematic rapporteurs and Working Groups, including the Working Group of Experts on Indigenous Populations/Communities. Under its contentious or protective jurisdiction, the African Commission invites causes of action based on violations of the Charter by state parties. Both states and non-state actors have legal capacity to present petitions to the Commission for determination.43 The Commission receives both oral and written submissions from contending parties, and in private hearings, makes a determination, which once final is ratified by the African Union Assembly of Heads of States and published.44 States are expected within 90 days of notification of a decision to file reports on the steps taken to implement the decision.45 It is from this body that the Endorois

38 Article 5(e) of the Constitutive Act of the African Union, the successor of the Organization of African Unity, does not explicitly recognise the Commission as one of its institutions but subsequent decisions of the African Union have brought the Commission under its ambit. 39 African Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986, Article 30. 40 Ibid. 41 Supra note 40, Article 45(b). 42 See African Commission on Human and Peoples’ Rights, ‘List of adopted Promotion/ Protection, Special Rapporteur and Fact-finding Mission Reports’, at , last visited 2 June 2011. 43 Supra note 40, Articles 47 and 55, respectively. 44 Supra note 40, Article 59. 45 African Commission on Human and Peoples’ Rights, Resolution on the Importance of Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights, Adopted during the 40th Ordinary Session, Banjul, the Gambia, November 2006. 386 korir sing’oei community sought justice in relation to its loss of Lake Bogoria territory resulting in the community’s loss of livelihood.

4.2.1. The Endorois Case at the African Commission At the African Commission, the Endorois claimed restitution of ancestral land, compensation for wrongful displacement from L. Bogoria Game Reserve and a finding that their right to property, culture, religion, natural resources, development and religion had been contravened. The Endorois attributed all these violations to the Kenyan state based on the principle of “state responsibility” in international law by which any state that violates its international obligations must be held accountable for its acts.46 In particular, the obligation of the state “to respect” means that all state institutions and all other individuals or bodies under the state’s authority must satisfy the demands of a given treaty. Corporate non-compliance with human rights is therefore attributable to the state within whose territory the illegal action or harm occurred-if the state fails to act diligently in bringing justice to victims of corporate malfeasance.47 According to the Special Representative of the United Nations Secretary-General on the

46 See generally Draft Articles on Responsibility of States for Internationally Wrongful Acts, reproduced in Report of the International Law Commission on the Work of its Fifty- Third Session, UN GAOR 56th Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001). Article 5 thereof provides explicitly: “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.” 47 The ACHPR has held states culpable for failing to protect citizens from corporate violation of socio-economic rights. In the Ogoni case, the Nigerian government was accused of having “condoned and facilitated these violations by placing the legal and military powers of the State at the disposal of the oil companies”. The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, 2001, Comm. No. 155/96, para. 3. In relation to civil political rights, the Commission has held that “[e]ven where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders. Chad therefore is responsible for the violations of the African Charter.” See Commission Nationale des Droits de l’Homme et des Libertes v. Chad, African Commission on Human and Peoples’ Rights, 1995, Comm. No. 74/92, para. 22. However, in Zimbabwe Human Rights NGO Forum v. Zimbabwe, the complainant unsuccessfully sought to attribute the torture perpetrated by the Zimbabwe ruling party, ZANU, and its military wing, the Zimbabwe Liberation War Veterans Association, to the Zimbabwean state. Zimbabwe Human Rights NGO Forum v. Zimbabwe, African Commission on Human and Peoples’ Rights, Comm. 2006, Communication No. 245/2002, available at , accessed on June 2, 2011. engaging the leviathan 387 issue of human rights and transnational corporations and other business enterprises: … States are not per se responsible for human rights abuse by private actors. But States may breach their treaty obligations where they fail to take appropriate steps to prevent, investigate, punish and redress such abuse. While States have discretion in deciding upon these steps, they should consider the full range of permissible preventative and remedial measures, including policies, regulation and adjudication.48 The resulting UN “Protect, Respect and Remedy” Framework49 is seen as an attempt to clarify the role of business in complementing state compliance with internationally recognised human rights norms. The develop- mentalist impulse of most African states and the ubiquitous role of business in spurring economic growth imply that the role of business in developing the economy is often equal if not greater than that of the state. Reality continues to indicate that while the state remains sovereign on its territory, the increasing influence by organisations and companies that operate across borders is phenomenal.50 As the role of business in the economy increased, it was reasonable to assume that human rights abuses could increase. To implicate the state in these breaches and leave out the offending corporation would admittedly be unjust.51 This dichotomy of legal responsibility is apparent in Endorois,

48 UN General Assembly, Draft Guiding Principles for the Implementation of the United Nations ‘Protect, Respect And Remedy’ Framework (2010) available at http://www.business -humanrights.org/…/Protect-Respect-Remedy-Framework/GuidingPrinciples>, last visited 2 June 2011. 49 The UN “Protect, Respect and Remedy” Framework for Business and Human Rights (2008), , last visited 2 June 2011. 50 It is argued that while economic globalisation will not lead to the demise of the state, a system of multi-level governance with agents at different levels (global, regional national, local) ideally working together to achieve common goals is inevitable. Nevertheless, the situation could result to one where the state eventually exercises less control over the regulation of the market than before, a situation that may require compensatory protection action at other regulatory levels.. Moreover, in the law of economic globalisation the states’ role is primarily to facilitate the operation of market forces. See e.g. B.W. De Feyter and F. Marrella (eds.), Economic Globalization and Human Rights (Cambridge University Press, Cambridge, UK, 2007). 51 The greatest criticism of the African Commission’s decision in Ogoni has been the lack of clear censure against Shell Corporation which was found to be an important actor in the human and environmental rights violations in Ogoniland. Oloka-Onyango criticises the Commission’s omission to consider the direct accountability of non-state actors, especially where the “law or the regulatory mechanisms of a host state are inadequate to tackle the problem”. He argues that while the focus of international human rights law has 388 korir sing’oei where the community averred in their complaint that “concessions for ruby mining on Endorois traditional land have recently been granted to a private company,” and blamed the Kenyan state for failing to “suspend these activities pending the outcome of the present communication”.52

4.2.2. Overcoming Procedural Barriers: From Admissibility to Merits Hearing The Endorois Communication, as does every claim before the African Commission, had to surmount the requirements of Article 56 of the Charter on Human and Peoples’ Rights.53 Surmounting these procedural

traditionally been on accountability of states, “globalization has sharply brought to the forefront the issue of the lack of accountability of non-state actors”; especially multinational corporations as a result of their increased power in states with weak human rights protection. See J. Oloka-Onyango, ‘Reinforcing Marginalized Rights in an Age of Globalization: International Mechanisms, Non-State Actors, and the Struggle for People’s Rights in Africa’, American University Journal of International Law Review (2003) p. 912. Partly in response to these criticisms, the Commission adopted a resolution in 2004 calling on governments to develop mechanisms to hold non-state actors especially multi-national corporations and business accountable for violations of economic, social and cultural rights in such matters relating to child labour, industrial safety standards, protection against forced evictions and low wages, protection of the environment, including global warming and its impact on ecosystems, livelihoods and food security. See African Commission on Human and Peoples’ Rights, Resolution on Economic, Social and Cultural Rights in Africa, ACHPR/Res.73(XXXVI)04. Subsequently, the Commission has expressed deep concern about “the human rights violations by non-state actors in particular the sector of extractive industries, including mining, oil, gas, and timber extraction” and proceeded to establish a Working Group on Extractive Industries, Environment and Human Rights in Africa whose report is expected in 2011. See African Commission on Human and Peoples’ Rights, Resolution on the Establishment of a Working Group on Extractive Industries, Environment and Human Rights Violations in Africa, ACHPR/ Res148(XLVI)09 available at , last visited 11 June 2011. 52 Endorois Complaint, supra note 1, para. 23. 53 African Charter, supra note 40. Article 56 outlines the admissibility requirements of a communication. It provides: “Communications … shall be considered if they: 1. Indicate their authors even if the latter request anonymity, 2. Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4. Are not based exclusively on news discriminated through the mass media, 5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and engaging the leviathan 389 hurdles is quite difficult, and has specifically marked the end for two recent Communications by groups self-identifying as indigenous communities.54 Under the rationae temporis requirements of the Charter, liability only arises on state parties to the Charter, to wit, after ratification. This means that the claim must have arisen after the Charter came into force and must concern a specific state party to the treaty.55 In the case of the Endorois – whose claim first arose in 1973 upon their eviction from the L. Bogoria territory – the Communication relied on the continuing nature of the violation as an exception to the retroactivity rule.56 The Endorois Communication also sought to circumvent the admis sibility requirement of the exhaustion of local remedies. The Communi cation recognised two exceptions to its rule: the massive nature of the violations and the non existence of “effective, available and efficient” remedies within the Kenyan domestic system.57 While the Kenyan state

7. Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.” 54 See Bakweri Lands Claims Committee v. Cameroon, 2004, African Commission on Human and Peoples’ Rights, Communication 260/02; Anuak Justice Council v. Ethiopia, 2006, Communication 299/03, available at , last visited 11 June 2011. In particular, consideration of the Bakweri Communication would have raised serious issues. The complaint was the first time the Commission had been seized of a complaint by an indigenous minority group over land once considered terra nulius rights (unoccupied land). If the Communication would have been deemed admissible, it would have presented the Commission with the rare opportunity to pronounce on one of the most contentious but yet unresolved issues from Africa’s painful colonial past. See K. Ndiva Kofele, ‘Asserting Permanent Sovereignty Over Ancestral Lands: The Bakweri Land Litigation Against Cameroon’, 13 Annual Survey of International and Comparative Law (2007) p. 107. 55 See African Charter, supra note 40. Kenya ratified the treaty on 21 February 1992. 56 See Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, 1997, African Commission, Communication No. 39/90, para. 155, at , last visited 12 June 2011. The Endorois relied on comparative support from Hopu and Bessert v. France, Views of 29 July 1997, Human Rights Committee Communication 549/1993. See also Admissibility Submissions, supra note 1, at para. 20.6. See also Loizidou v. Turkey, 1996, European Court for Human Rights, 23 EHRR 513 (1996), 1996-VI 2216, reprinted in Series A no. 330-A, p. 22, para. 58 (where Court recalled its endorsement of the notion of a ‘continuing violation’ of the Convention and its effects as to temporal limitations of the competence of Convention organs). 57 See Sir Dawda K Jawara v. The Gambia, 2000, African Commission, Communication 147/95 and 149/96, para. 58, at , (where the ACHPR in explaining the exceptions to the exhaustion rule noted that a remedy is considered “available if the petitioner can pursue it without impediment”, “effective if it offers a prospect of success” and “sufficient if it is capable of redressing the complaint”). 390 korir sing’oei argued against these attempts by citing that domestic remedies had not been exhausted (due to the non-conclusion of a domestic appeal to the Endorois’ constitutional application),58 the Commission determined the Communication admissible. In reaching this decision, it is my assertion that the Commission placed great reliance on the fact that the conclusion of such an appeal would, nonetheless, not afford an effective remedy to the Endorois’ claim. The Commission must have noted that collective notions of property were not recognised within the Kenyan Bill of Rights.59 Another positive step in the process before the Commission was its granting of provisional measures. At the pursuit of the applicant community, under Rule 111 of its rule of procedures, the Commission is empowered to maintain the status quo with respect to the disputed land.60 The Commission, which often sees its principal objective as facilitating constructive dialogue between the parties, leading to the amicable settlement of disputes61 especially motivated by its lack of mechanisms for

58 The Kenyan government grounded its objection on the principle of exhaustion of local remedies expressed in the Ambatielos Claim: “The Defendant State has the right to demand that full advantage shall have been taken of all local remedies before the matters in dispute are taken up on the international level by the State of which the persons alleged to have been injured are nationals”. The Ambatielos Claim (Greece v. U.K.), R.I.A.A. 119 (6 March 1956), referenced in Respondent State Response, supra note 1, at para. 33. To the Kenyan government’s disadvantage, however, the same case presents an exception to this rule, namely “[that] rremedies which could not rectify the situation cannot be relied upon by the Defendant State as precluding an international action”. 59 The Endorois asserted that the Bill of Rights in Kenya’s Constitution (the then Constitution) was modelled along the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The Submissions on Admissibility stated, in pertinent part: “[By] the fact that the 1950 European Convention rests on a highly individu- alistic conception of society it is unsurprising that Chapter V of the Constitution of Kenya does little to protect the concept of group or collective rights in the sense asserted by the Applicants.” Endorois Complaint, supra note 1, para. 17.4. 60 See Chair of the African Commission on Human and Peoples Rights, Letter to His Excellency Mwai Kibaki, President of the Republic of Kenya (9 December 2004) (on file with author). While the African Charter does not provide for provisional measures, Rule 111 of its Procedure has been utilised as an interpretive mechanism in other situations. The binding character of provisional measures in international law, however, remains contentious. F. Viljoen, Human Rights in Africa: National and International Protection (Oxford University Press, Oxford, 2007) pp. 326–329. 61 Comite Culturel pour la Démocratie au Bénin, Hilaire Bedjogoume, El Hadj Boubacare Diawara v. Benin, 1995, Communication 16/88, 17/88, 18/88, at , last visited 11 June 2011, noting “it is the primary objective of the Commission in the communication procedure to initiate dialogue between the parties which will result in an amicable settlement to the satisfaction of both and which remedies the prejudice complained of” (para. 3). engaging the leviathan 391 securing compliance with its decisions,62 also sought to secure an inter partes friendly settlement of the claim without success.63 In another unprecedented step, the Commission allowed video testimony to be introduced, bringing the voices of an oppressed community many miles away to the halls of justice,64 hence confirming the increasing rootedness of the indigenous struggle in Africa.

3.3. A Brief Appraisal of the Endorois Decision In the Endorois case, the African Commission had an opportunity to assess the meaning of the rights to religion, property, culture, natural resources and development in the Charter65 as applied to an indigenous community.

3.3.1. Right to Religious Freedom Sacred sites are important mechanisms by which indigenous communities the world over have protected fragile ecosystems, including water

62 M. wa Mutua, ‘The Construction of the African Human Rights System: Prospects and Pitfalls’, in S. Power and A.T. Graham (eds.), Realizing Human Rights: Moving from Inspiration to Impact (Palgrave Macmillan, New York, 2000) p. 151. Recent developments at the Commission, including the adoption by the Commission at its 40th session (November 2006) of ‘Resolution on the Importance of Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights’, obliging states to report on measures taken and constraints encountered within 90 days of notification of decision, points to increasing possibilities for enhanced implementation. 63 A meeting, on 24–26 August 2006, between representatives of the Kenyan government and the Endorois Community, failed to yield any friendly settlement in terms requested by the Commission. (Meeting notes on file with author). 64 The Commission’s Rules of Procedure are silent in regard to the kind of evidence that is admissible. Parties to disputes before the Commission have been innovative in submitting various forms of evidence to which the Commission has acquiesced. See ‘Rules of Procedure of the African Commission’, Res. ACHPR/RP/XIX (adopted 6 October 1995), reprinted in R. Murray and M. Evans (eds.), Documents of the African Commission on Human and Peoples’ Rights (Hart Publishing, London, 2001) p. 21. 65 Article 14 of the Charter provides: “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.” Culture is protected by Articles 17, thus: (2) “Every individual may freely, take part in the cultural life of his community. (3)The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State”. The right to religious is sancti- fied in Article 8 which states: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” The Charter also protects the right to development in Article 22, thus: “All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.” African Charter, supra note 40. 392 korir sing’oei resources. It is no wonder that to the Endorois the L. Bogoria is not only important as a source of livelihood and identity, but its protection is closely linked to spirituality. The Commission stated in response to the Endorois’ averment of the sacredness of the lake’s water that “religion is often linked to land, cultural beliefs and practices, and that freedom to worship and engage in such ceremonial acts is at the centre of the freedom of religion”.66 Further, the Commission referred to the case of Amnesty International v. Sudan, where the Commission in recognising the centrality of the practice to religious freedom stated that “any restrictions placed on the rights to practice one’s religion should be negligible” and decided that “complete and total expulsion from the land for religious ceremonies is not minimal”.67 Consequently, the Commission decided “that denying the Endorois access to the Lake is a restriction on their freedom to practice their religion, a restriction not necessitated by any significant public security interest or other justification and that allowing the Endorois to use the land to practice their religion would not detract from the goal of conservation or developing the area for economic reasons”.68

3.3.2. Right to Property The root cause for the flagrant abuse of Endorois’ human rights is located in the lack of legal protection of customary property under Kenyan law. As discussed in the first part of this article, Kenya’s constitutional and statutory law embodied by both the Trust Lands Act and the Wildlife Conservation Law failed to appreciate the specificities of Endorois’ traditional attachment to this specific territory. Although the trust land regime grants some form of usurfructuary rights69 to persons ordinarily resident, the African Commission specifically noted that mere access to land would not meet the demands of the right to property in the Charter to the extent that it would leave indigenous peoples vulnerable to further annexation of their territories by the state or third parties. While acknowledging that the establishment of a game reserve was a legitimate aim and served a public

66 Endorois Decision, supra note 1, para. 166. 67 Ibid., para. 172. 68 Ibid., para. 173. 69 This is a right that allows the use of property that belongs to another. The owner of land that bounds or contains a natural water channel has a usurfructuary right to use of the water. The water itself is considered to be held by the public with all adjacent property owners holding rights to its use. Restrictions on that use vary. engaging the leviathan 393 need,70 the Commission found that the complete eviction and denial of the community from the land was disproportionate to this purpose. In other words, the Commission was of the opinion that the creation of the national park did not need to preclude the Endorois’ access and could have been accomplished by alternative means proportionate to the public need for tourism infrastructure. Referring to Articles 26 and 27 of the UN Declaration on the Rights of Indigenous Peoples, the African Commission concluded that “indigenous peoples have a recognised claim to ownership to ancestral land under international law, even in the absence of official title deeds”.71 The Commission has also emphasised that indigenous peoples’ parity of engagement with the state and third parties as “active stakeholders rather than as passive beneficiaries” will only be secured if they have full ownership rights with respect to their customary lands.72 By legitimating the agency of the community, the Commission’s jurisprudence in Endorois demands that the community can no longer be deemed mere recipients of even well intentioned state or non-state development interventions. Instead, the tenor of the Commission’s decision in Endorois requires that the community actively participates in the conception, design and implementation of such interventions.

3.3.3. Right to Culture In examining the right to culture, The Commission has referred to the Human Rights Committee with regard to the exercise of the cultural rights protected under Article 27 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and has stated that “culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.”73 In the case of indigenous communities in Kenya, the Commission has paid particular attention to the report of the Special Rapporteur on the

70 Endorois Decision, supra note 1, para. 215. 71 Ibid., para. 207. Kenya was one of three African governments that opposed the adoption of the UN Declaration on the Rights of Indigenous Peoples. However, its position on indigenous rights has changed over the last two years as indicated by its acknowledgement of existence of minorities and marginalised groups within the framework of the Universal Periodic Review process in November 2010. 72 Ibid., para. 204. 73 Ibid., para. 243. 394 korir sing’oei

Situation of Human Rights and Fundamental Freedoms of Indigenous People in Kenya, which noted that “in recent decades, inappropriate development and conservationist policies have aggravated the violation of their economic, social and cultural rights”.74 Notwithstanding the absence of any limitation on the right to culture under the Charter – in contrast with both the right to religion and to property – the Commission used similar proportionality arguments to weigh the need for cultural expression on the one hand against the establishment of a game reserve on the other: [E]ven if the creation of the Game Reserve constitutes a legitimate aim, the Respondent State’s failure to secure access for the celebration of the cultural festival and rituals cannot be deemed proportionate to that aim. The Commission is of the view that the cultural activities of the Endorois community pose no harm to the ecosystem of the Game Reserve and the restriction of cultural rights could not be justified, especially as no suitable alternative was given to the community.75

3.3.4. Right to Natural Resources The Commission found that the mining of red ruby, although an issue not specifically litigated in domestic courts, had “direct relevance to the matter” before it “given the ruby mining concessions which were taking place on lands, both ancestral and adjacent to Endorois ancestral land” allegedly “poison[ing] the only remaining water source to which the Endorois had access”.76 Applying the three pronged test set out by the Inter-American Court in Saramaka v. Suriname, to determine the extent to which a state may exploit natural resources appurtenant to the customary lands of an indigenous community,77 the Commission found that “Respondent State has a duty to evaluate whether a restriction of these

74 Ibid., para. 245, emphasis added. 75 Ibid., para. 249. 76 Ibid., para. 262. 77 Case of the Saramaka People v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 172 (28 November 2007). The Inter American Human Rights Court set out conditions that must precede state exploitation of natural resources: i. that the specific natural resource falls outside the traditional and cultural use of the indigenous community (paras. 120,121 and 122); ii. that the exploitation and exploration does not imperil the survival, development and continuation of an indigenous groups’ way of life ( paras. 120 and 122); iii. where the natural resources are not relevant to traditional livelihoods their exploitation within indigenous territories may negatively affect the integrity of and access to other resources that are significant to the cultural life and survival of the community (para. 126). engaging the leviathan 395 private property rights is necessary to preserve the survival of the Endorois community”.78 While expressing awareness that “the Endorois do not have an attachment to ruby” the Commission nevertheless found that given that the exploitation of red rubies affected the way the community related with other natural resources, notably water, the Commission found that any exploitation of mineral resources on Endorois’ land should have been preceded by prior informed consultation as well as compensation.79

3.3.5. Right to Development The Commission was unimpressed that the Kenyan government viewed development as dependency rather than as an emancipatory process especially in relation to food provision.80 Instead, consistent with the way the right to development is formulated in the United Nations Declaration on Right to Development, the Commission championed for a development process that would enhance rather than diminish the communities’ choices and capabilities. Arguably, in the context of the right to food, such a development would ensure that if pastoralism as practised by the Endorois was considered dysfunctional, it would receive state policy and material support to enhance its efficiency and sustainability. Referencing the Inter-American Court on Human Rights in Yakye Axa v. Nicaragua,81 the Commission problematised displacement of indigenous communities, reasoning that: Displacement of the members of the community from those lands has caused special and grave difficulties to obtain food, primarily because the area where their temporary settlement is located does not have appropriate conditions for cultivation or to practice their traditional subsistence activities, such as hunting, fishing, and gathering.82 As earlier noted, L. Bogoria’s water to the Endorois served both spiritual and subsistence purposes. By observing the seasonal changes in the water

78 Endorois Decision, supra note 1, para. 267. 79 Ibid., paras. 263–267. 80 Ibid., para. 283. The Commission set out as a principle that: “The result of development should be empowerment of the Endorois community. It is not sufficient for the Kenyan Authorities merely to give food aid to the Endorois. The capabilities and choices of the Endorois must improve in order for the right to development to be realised.” 81 Yakye Axa indigenous community of the Enxet-Lengua people v. Paraguay, 2002, Inter- American Court of Human Rights, Case 12.313, Report No. 2/02, Inter-Am. C.H.R., Doc. 5 rev. 1 (2002) p. 387. 82 Endorois Decision, supra note 1, para. 285. 396 korir sing’oei condition, including its colour, the community determined when to offer specific sacrifices that implicated their overall well-being.83 The Commission admitted evidence adduced by the Endorois demonstrating “that access to clean drinking water was severely undermined as a result of loss of their ancestral land (Lake Bogoria) which has ample fresh water sources”.84 Unlike in a case dealing with Nigeria’s Ogoni people, where the Commission made the general observation that “the intervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common good and the sacred rights of individuals and communities”,85 in Endorois, the Commission shied away from explicitly elaborating the Charter’s specific mode of operation for corporations. Citing the Saramaka decision from the Inter-American system, however, the Commission set out as a principle under the African Charter that those carrying out development or investment plans within indigenous peoples’ territory were under a duty to actively consult with the … community according to their customs and traditions. This duty requires (investors) to both accept and disseminate information, and entails constant communication between the parties. These consultations must be in good faith, through culturally appropriate procedures and with the objective of reaching an agreement.86 While directly spoken to states, the principle set out by the Commission is equally applicable to other actors that interact with indigenous peoples’ territory, including, presumably, corporate actors.87

83 Ibid., para. 78. 84 Ibid., para. 288. 85 The Social and Economic Rights Action Center v. Nigeria, supra note 48, para. 69. 86 Endorois Decision, supra note 1, para. 289. 87 As a minimum, insofar as human rights are incorporated in international customary law or in the general principles of law, ‘other actors’ are under an obligation not to violate, or become complicit in the violation by action, or omissions attributable to them, As the principle duty holder in human rights law, the states’ duties to protect human rights even after opening up to the global economy is to ensure the disposal of sufficient legal instruments that allow their intervention in the domestic economy for the purposes of human rights protection. Failure to attempt this will render states, participating in the process of economic globalisation, to raise human rights in the context of international arbitration “as a justification for post-investment measures that impact on the investor’s profitability if the rules (the law/the contract) applying to the investment did not at the time of the conclusion of the investment agreement refer to human rights as an objective the investment was deemed to achieve or did not include specific protection clauses on issues that are sensitive from a human rights perspective including indigenous rights”. De Feyter and Marrella, supra note 51, p. 14. engaging the leviathan 397

3.4. The Endorois Decision and Corporate Conduct In theory, while the government is both the grantor and guarantor of property rights,88 human rights law provides that indigenous land rights are not necessarily rooted in state-issued titles.89 Instead, and often in contradiction of state-recognised titles, indigenous communities’ entitlement to ancestral land is grounded in their historical connection to land. In Endorois, the Commission was clear that the mere lack of paper title did not disadvantage the Endorois, reasoning that: Articles 26 and 27 of the UN Declaration on the Rights and freedoms of Indigenous Peoples use the term “occupied or otherwise used.” This is to stress that indigenous peoples have a recognised claim to ownership to ancestral land under international law, even in the absence of official title deeds.90 Consequently, if companies wish to invest in lands occupied by indigenous communities, they must do more as part of their due diligence compliance. It is not enough for them to obtain necessary titles and licenses from the state and presume this to be sufficient basis for their investment. They must undertake a more comprehensive investigation of “title worthiness” beyond the state land registries which only chronicle the formal system. In particular, due diligence required under the duty to respect aspect of the United Nations framework is clearly applicable to corporate investment in land occupied by indigenous groups. This framework impliedly obliges corporations to ensure that economic activities do not negatively affect indigenous groups’ rights including the right to life, access to food, water and other material and spiritual needs. This approach is neither novel nor problematic given that the World Bank, through its Operational Directive 4.10, presently mandates the development of an indigenous peoples’ development plan as a prelude to any

88 Bentham saw property as a “legally protected expectation … of being able to draw such or such an advantage from the thing in question according to the nature of the case”. J. Bentham, Principles of the Civil Code (1830). The import of this assertion is that property is only such if legally protected, and law is nothing but a command of the sovereign, meaning that the state is both the giver and sustainer of property through the instrumentality of law. 89 Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295,U.N. Doc. A/RES/47/1 (2007), Articles 8(2)(b), 10, 25, 26 and 27. 90 Endorois Decision, supra note 1, para. 207. 398 korir sing’oei investment in land occupied by an indigenous group.91 The International Finance Corporation (IFC)92 also has a specific performance standard on indigenous peoples which acknowledges that IFC recognizes that the rights of Indigenous Peoples are being addressed under both national and international law … While such legal instruments establish responsibilities of states, it is increasingly expected that private sector companies conduct their affairs in a way that would uphold these rights and not interfere with states’ obligations under these instruments. It is in recognition of this emerging business environment that IFC expects that private sector projects financed by IFC foster full respect for the dignity, human rights, aspirations, cultures and customary livelihoods of Indigenous Peoples.93 Although the Commission could have done more in helping clarify the relationship between indigenous communities and private enterprise within the rubric of the African Charter, it was not invited to make such finding neither by the state nor the applicants.

4. The Transformative Impact of the Endorois’ Claim at the Commission

In February 2010, the African Commission published its decision in the Endorois case. In finding Kenya in violation of various provisions of the African Charter, the Commission recommended as follows: i. Recognise rights of ownership to the Endorois and Restitute Endorois ancestral land. ii. Ensure that the Endorois community has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle.

91 World Bank Group, The World Bank Operational Manual, Operational Policy 4.10: Indigenous Peoples (1 December 2004), at , last visited 11 June 2011. 92 As subjects of international law where they are capable of possessing rights and duties, international financial institutions do have direct human rights obligations. In its advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, the International Court of Justice clarifies that international organisations are bound by “an obligation incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties” (International Court of Justice, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, paras. 89–90). 93 The new IFC policies (2006) are available at . engaging the leviathan 399

iii. Pay adequate compensation to the community for all the loss suffered. iv. Pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the Reserve. v. Grant registration to the Endorois Welfare Committee. vi. Engage in dialogue with the Complainants for the effective implementation of these recommendations. vii. Report on the implementation of these recommendations within three months from the date of notification. viii. The African Commission avails its good offices to assist the parties in the implementation of these recommendations. While the recommendations of the Commission are yet to be fully complied with by the Kenyan state, the Commission’s potential to engage the state and corporate actors in a manner that secures better protection of human rights has already become evident in relation to the Endorois’ claim. We outline some instances of these efficacious developments. According to Asbjørn Eide, human rights evolution has been marked by three stages: idealisation, positivisation and realisation.94 G. Abi Saab sees the process of evolution of a human right on the basis of three indicators before such a right acquires the threshold of law: the degree of achieved consensus about social value, the degree of concreteness of the value and the existence and effectiveness of the mechanism of realisation and supervision.95 Drzewicki adds the conceptualisation, juridisation and normatisation as distinct steps that may also be observed in the formulation of human rights.96 Litigating the Endorois’ claim at the African Commission can thus be seen as contributory to the normatisation of indigenous peoples’ rights, which then lend themselves better to recognition by national courts considering that Kenya is a dualistic state. Indeed, the

94 A. Eide ‘Dynamics of Human Rights and the Role of the Educator’, in A. Eide and M. Thee (eds.), Frontiers of Human Rights Education (Universitets-Forlaget, Oslo, 1983) pp. 105–116. 95 A.S. Georges, ‘The Legal Formulation of a Right to Development (Subjects and Contents)’, in R.-J. Dupuy (ed.), The Right to Development at the International Level (Sijthoof & Noordhoof, Alphen aan den Rijn, 1980) pp. 159–175. 96 K. Drzewicki, ‘Internationalization and Juridization of Human Rights’, in R. Hanski and M. Suksi (eds.), An Introduction to the International Protection of Human Rights (Institute for Human Rights, Abo Akademi University, 1997) pp. 25–26. They cite General Assembly Resolution 41/20 of 1986 for the proposition that human rights norms are sometimes indeterminate in their conceptualization; hence their normative content and character bears questioning. 400 korir sing’oei repeal of the trust land regime and creation of the community land tenure by Kenya’s new Constitution adopted in August 2010 is a pointer to the impact of the Endorois decision.97 Moreover, the internationalisation of the matter brings third party pressure to bear, which states in Africa are keen to avoid. The investigation and exposure of state and corporate conduct by international bodies is something that most states and corporations in Africa eschew. They would rather any judicial action is rooted in domestic rather than international mechanisms. In the case of Kenya, the Endorois Communication at the African Commission has attracted the attention not just of the Commission but also the UN Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous Populations, and some treaty bodies, notably, the Human Rights Committee and the Committee on Economic Social and Cultural Rights. The UN Permanent Forum on Indigenous People has also taken cognisance of the Endorois case, and is following up its progress. African-based institutions, including the African Peer Review Mechanism under the banner of the African Union’s New Partnership for African Development (NEPAD), also propounded broad policy recommendations on the question of minority rights, the Endorois Communication providing the needed imprimatur. The intervention of the Commission through the issuance of provisional measures directed at the Kenyan president engaged the highest political structure in the country, resulting in the halting of the mining process that was commencing within the disputed land. An imminent conflict between the community and investors was averted. Finally, the process at the Commission has resulted in a broad range of stakeholders taking an interest in the challenges facing the Endorois community and other indigenous minorities in Kenya. These include national institutions which although active in various human rights issues had not paid attention to indigenous peoples’ concerns. Such institutions include the National Environmental Management Authority as well as the Department of Mining. Equally, the World Bank also triggered its Policy No. 4.10 on indigenous people with respect to a water project it was funding in Kenya, which would affect the Endorois. The European Union has funded civic education to enable the Endorois to monitor local governance processes, particularly on how decentralised funding is benefiting

97 Constitution of the Republic of Kenya, 2010, Article 63, available at , last visted 12 June 2011. engaging the leviathan 401 the community, and USAID funded its civic education programme on the Constitution. Not to be left behind, the Kenyan state as well has specifically targeted the improvement of education infrastructure in Endorois’ country. Thanks to the level of media surrounding the Endorois’ struggle, more civil society groups in Kenya have approached the community, with a view to supporting the implementation of the recommendations of the African Commission. Moreover, the Baringo and Koibatek local authorities in whom Endorois’ land was previously jointly vested have allowed the Endorois to access the game reserve for purposes of grazing and watering their animals, especially during the last dry season. This is, however, still extremely discre- tionary on the part of park officials, but represents some positive accommodation in the light of past experience. The Endorois’ access for cultural and religious purposes appears to have been increasingly respected if the highly visible community celebration in April 2010 is indicative. The Endorois decision became the rallying call in the context of the campaign for a new Constitution in Kenya. The adoption of this new Constitution, which has affectively abolished the trust land regime discussed before and created a new tenure arrangement based on communities, constitutes the greatest policy gain yet for minorities in Kenya.

5. Conclusion

While Africa’s post colonial state has generally failed to sustainably satisfy the basic needs – food, water, security of land – of the people, this article has shown that international judicial mechanisms can provide important avenues for the redress of historical grievances of minorities rooted in dispossession of ancestral territory. States in Africa confronted by judicial authority, particularly authority emanating from international courts, will inevitably find means of complying with such decisions. The Endorois decision is unequivocal in its conclusion that the state must provide clearer mechanisms for the arbitration of corporate versus community interests in a more sustainable manner.

NOTES ON THE IMPLEMENTATION BY LATIN AMERICAN COURTS OF THE ILO CONVENTION 169 ON INDIGENOUS PEOPLES*

Christian Courtis1

1. Some Facts on the Legal Context of the Countries of the Region

The Latin American and Caribbean region is that in which the greatest number of ratifications of Convention 169 has taken place – 15, at the time of this writing (May 2011).2 This is no accident: many countries in the region are multilingual and multicultural, and in some cases, indigenous people constitute a majority or significant portion of the population. In addition to ratifying Convention 169, along with a series of constitutional reforms taking place since the end of the 1980s, an important number of these countries have incorporated provisions relating to the rights of indigenous peoples and communities into their constitutions. It is no wonder, then, that many of these constitutional and legal changes have impacted the jurisprudence of many countries. Some common factors – applicable to different degrees in each country, but nevertheless representing a regional trend – can help us understand this panorama.

1.1. The Relationship between the Processes of Constitutional Reform and Democratic Transition or Consolidation A significant number of countries in the region have experienced a transition from authoritarian regimes to the implementation of democratic institutions in the period ranging from the mid-1980s to the early 2000s.3

* This article was previously published in 6:10 Sur. International Human Rights Review (June 2009) pp. 53–81. I am grateful to the publishers or Sur Review for granting permission for re-printing it. 1 Professor, University of Buenos Aires Law School, Buenos Aires, Argentina. 2 May 2011. Ratifying states are Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru and Venezuela. 3 See R. Gargarella, ‘Recientes reformas constitucionales en América Latina: una prim- era aproximación’, in 36:144 Desarollo Económico (Jan.–Mar. 1997) pp. 971–990; J.M. Serna de la Garza, La reforma del Estado en América Latina: los casos de Argentina, Brasil y México (UNAM, Mexico, 1998); R. Uprimny and M. García Villegas, ‘Corte constitucional y 404 christian courtis

In many cases, the process was accompanied by substantial constitutional reforms. In other cases, although there was not exactly a transition from an authoritarian to a democratic regime, constitutional reforms accompanied important processes of political mobilisation and renewal. The majority of these reforms have led to a significant number of new rights and institutional innovations, as described in the following paragraphs.

1.2. The Expansion of Constitutional Justice Although the idea of constitutional justice was not foreign in many of the region’s jurisdictions, the fact is that, during much of the 20th century, constitutional judicial review was not common in the region. Many of the constitutional reforms that took place in the last decade of the 20th century have reinforced constitutional control through the creation of special constitutional courts or constitutional sections within superior courts of justice or supreme courts, and through the express provision of legal remedies within the constitution – such as allowing for amparo complaints or judicial review. This has led to a notable expansion of the use of constitutional jurisdiction, which is unprecedented in many countries in the region.4

1.3. Ratification and the Grant of Privileged Status to International Human Rights Treaties Other innovations tested in many countries in the region have stemmed from the privileged status of international human rights treaties. During the period described, many of the region’s nations have increased the number of ratifications of international human rights treaties – a message reinforcing their acceptance of the rule of law and the observance of fundamental rights, as opposed to an authoritarian past characterised by massive human rights violations. The ratification of international human rights instruments can be understood as confidence in the international human rights system, which, in the past, was the forum in which grave human rights violations could be denounced, and at the same time as a message to the international community about the state’s new commitment to the rule of law and respect for human rights.

emancipación social en Colombia’, in B. de Sousa Santos and M. García Villegas, Emancipación social y violencia en Colombia (Norma, Bogota, 2004). 4 See V. Bazán, ‘Algunos problemas y desafíos actuales de la jurisdicción constitucional en Iberoamérica’, in Anuario de Derecho Constitucional Latinoamericano, Tomo I (Fundación Konrad Adenauer, Montevideo, 2007) pp. 37–61. notes on implementation by latin american courts 405

The ratification of a substantial number of international human rights treaties, both regional and universal, has taken place in the context of a prevalent monist tradition that helps define the relationship between international and domestic laws. This means that ratified international human rights treaties become part of domestic law, and that the rights recognised in those treaties can be added to the expanded list of fundamental rights consecrated by the region’s new constitutions.5 Finally, although not uniformly, many countries in the region have conferred upon human rights treaties a privileged legal status, at least with respect to ordinary laws.6 In some cases, such treaties have been given constitutional status,7 while in other cases they are considered part of the so-called “block of constitutional law”,8 and in still other cases they have an intermediate status – below that of the constitution but above ordinary legislation.

1.4. Strengthening of the Regional Human Rights System This renewed relationship between local constitutional law and international human rights law has been buttressed by the strengthening of the Inter-American System of Human Rights. Practically all of the countries in the region have ratified the American Convention on Human Rights and

5 On the application of human rights treaties by domestic judges, see generally M. Abregú and C. Courtis, La aplicación de los tratados de derechos humanos por los tribu- nales locales (Editores del Puerto-CELS, Buenos Aires, 1997) and V. Abramovich, A. Bovino and C. Courtis (eds.), La aplicación de los tratados sobre derechos humanos en el ámbito local. La experiencia de una década (Editores del Puerto-CELS, Buenos Aires, 2007). Specifically, on the application of ILO conventions locally, see G. Gianibelli, ‘El sistema de protección de derechos de la Organización Internacional del Trabajo y sus efectos sobre el ordenamiento interno’, in Abramovich, Bovino and Courtis, this foonote, pp. 355–388 and A. Goldín, ‘Los convenios internacionales del trabajo. Su impacto en la Argentina’, in Abramovich, Bovino and Courtis, this footnote, pp. 315–354. See also C. Thomas, M. Oelz and X. Beaudonnet, ‘The use of international labour law in domestic courts: Theory, recent jurisprudence, and practical implications’, in ILO, Les normes internationales du travail: un patrimoine pour l’avenir. Mélanges en l’honneur de Nicolas Valticos (International Labour Organization, Geneva, 2004) pp. 249–285. 6 C. Ayala Corao, La jerarquía constitucional de los tratados relativos a derechos humanos y sus consecuencias (FUNDAP, Quito, 2003). 7 In the case of Argentina, a list of human rights treaties including Article 75(22) of the Constitution, which may be extended if a human rights treaty is adopted with a qualified majority. It is also the case of Brazil, where a constitutional amendment has granted human rights treaties adopted by a special procedure and a special majority constitutional hierarchy (Federal Constitution, Article 5(3)). 8 R. Uprimny, ‘El bloque de constitucionalidad en Colombia: un análisis jurisprudencial y un ensayo de sistematización doctrinal’, in Compilación de jurisprudencia y doctrina nacional e internacional (Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos, Bogota, 2001). 406 christian courtis have accepted the contentious jurisdiction of the Inter-American Court of Human Rights. One effect of this expansion has been, of course, a considerable increase in the activities of the organs of the system – the Inter-American Court and Commission on Human Rights – in terms of the cases received and decided, the countries involved and the breadth of the themes considered. At the same time, the countries that make up the regional human rights system have had to internalise its decisions and the interpretive criteria defined by the said system. The process is slow and complex and is far from being complete. But it has resulted in many local courts being more receptive to Inter-American jurisprudence – especially that established by the Inter-American Court of Human Rights. This can explain how courts have become gradually accustomed to invoking international human rights standards.

1.5. Recognition of New Constitutional Rights A final element consists of the recognition of the rights of indigenous peoples in the constitutions of the region. Constitutional reforms in the region have been characterised by the expansion of the list of fundamental rights and substantive principles, which include the full range of known rights (civil, political, economic, cultural, collective, minority and environmental rights). In this context, there has also been constitutional recognition of the rights of indigenous communities – a theme that would be impossible to ignore considering the strength and degree of political mobilisation of indigenous peoples and communities in the region.9 Many of the constitutional provisions that recognise the rights of indigenous peoples have been inspired by related international standards, which include, as a prime example, Convention 169 of the International Labour Organization.

2. Convention 169’s Influence on Countries in the Region

While these factors vary from country to country and do not fully explain the phenomenon being analysed, they at least offer some elements that may be helpful in understanding the success Convention 169 has had in

9 R. Sieder (ed.), Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy (Basingstoke, New York, 2002); C.G. Barié, Pueblos Indígenas y Derechos notes on implementation by latin american courts 407 the region, especially in comparison with other regions of the world. Part of the Convention’s influence is reflected in the inspirational function it played in the constitutional and legal reforms related to indigenous peoples in the region. In this sense, many of the concepts articulated therein – such as “indigenous peoples and communities”, “self-identification”, “traditional territories”, “autonomy”, “consultation”, and “uses and customs”, amongst others – were incorporated in one way or another in the constitutions and legal norms of various countries in the region.10 However, what is important for the purposes of this study is that the influence of Convention 169 is not limited to the role of “model legislation” to be followed by local political powers. Convention 169 has been employed and invoked by indigenous peoples and communities themselves, as well as by other actors – both public institutions and civil society – that have acted in defence of the rights and interests of these communities. Additionally, this international instrument has been employed in litigation before local courts and, when necessary, before the bodies of the regional human rights system.

3. Some Criteria for Understanding the Selection of Cases Presented in this Article

As mentioned above, this article includes, in a selective manner and without any claim to exhaustivity, some judicial decisions that have applied Convention 169 of the ILO. The decisions come from both national courts and the Inter-American Court of Human Rights. I have grouped the decisions thematically to demonstrate certain lines of convergence between the courts of distinct countries in the region and the regional human rights court. However, it is useful to put these cases in context in order to properly understand the reasons behind their selection. The different case backgrounds and the diversity of local legal systems and juridical traditions give a mixed picture. It should be clarified that the degree to which the application of Convention 169 has been developed varies significantly

Constitucionales en América Latina: un panorama, 2nd ed. (Abya-Yala-Comisión Nacional para el Desarrollo de los Pueblos Indígenas-Instituto Indigenista Interamericano, La Paz, 2003); F. Flores Jiménez (coord.), Constitución y Pluralismo Jurídico (Corporación Editora Nacional-Instituto de Derecho Público, Quito, 2004); D. Bonilla, La Constitución Multicultural (Siglo del Hombre-Uniandes-Instituto Pensar, Bogotá, 2006). 10 Barié, supra note 10, pp. 58–62. 408 christian courtis amongst the region’s local courts: in some countries, there are few cases and the application of Convention 169 by local courts is in its beginning stages, while in others – including Colombia and Costa Rica – the wealth and variety of cases are enormous.11 In either case, although the examples cited here are few, the reader can get an idea of the span of existing cases if certain variables that must be taken into account are explained.

3.1. Regional Judgments/National Judgments Convention 169 has been applied both by the local courts of various countries,12 as well as by the bodies of the regional human rights system, namely the Inter-American Court and Commission for Human Rights. In the former case – with some exceptions, such as in Belize – Convention 169 is a legal norm incorporated into the domestic law of the countries in question. In the latter case, in contrast, it is important to note that Inter-American bodies do not have jurisdiction in resolving controversies based on violations of Convention 169, as their jurisdiction is based on regional human rights instruments. However, the regional human rights bodies have used the ILO’s Convention 169 as an interpretive norm in specifying the obligations of states established by other international agreements (such as the American Convention on Human Rights and the American Declaration of the Rights and Obligations of Man) as applied to indigenous peoples or communities and their members. Thus, for example, regional human rights bodies have interpreted the right to property or the right of due process, as applied to the rights of indigenous peoples and communities, in light of those rights established by Convention 169. Although the majority of cases discussed here consist largely of domestic jurisprudence, I have also included some extremely important cases decided by the Inter-American Court of Human Rights, not only because the Court’s interpretation is noteworthy, but also because regional jurisprudence often has a subsequent effect on the local jurisprudence of countries that form part of the regional system for human rights.

11 In Colombia, for example, the Constitutional Court has decided more than 40 cases in which the Convention 169 is invoked. See for example C. Botero Marino, ‘Multicultur alismo y derechos de los pueblos indígenas en la jurisprudencia de la Corte Constitucional colombiana’, in Revista Precedente, Anuario Jurídico, Facultad de Derecho y Humanidades (Cali, Universidad ICESI, 2003) pp. 45–87. 12 Among the countries of the region in which there have been judicial applications of Convention 169 are Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Peru and Venezuela. notes on implementation by latin american courts 409

3.2. Countries with a Monist Tradition/ Countries with a Dualist Tradition; Normative Hierarchy of the Convention A related question is how the treaty is incorporated into domestic law and its normative hierarchy in cases where there is direct incorporation of international law. The dominant tradition in Latin America is monist – that is to say, an international treaty is incorporated into domestic law once it is ratified. However, it is important to remember that most of the Caribbean countries have a common law tradition, in which dualism predominates. Amongst such countries, Belize was involved in an interesting case invoking Convention 169 as an interpretive or persuasive tool, even though the country is not a party to that treaty.13 Rather, it is a second question which derives from the relationships between international and domestic law in the monist tradition and which captures some significant differences between countries in the region that have some experience with the judicial application of Convention 169. Here, needless to say, there are different approaches in different jurisdictions, which are in some cases reflected in the judgments discussed. In some countries, international human rights treaties and Convention 169 have been assigned to a category similar to the constitution. These countries include Bolivia and Colombia, which have assimilated Convention 169 into the Constitution by employing the notion of a “constitutional block”. According to this idea, the incorporation of international human rights treaties into domestic law requires an interpretation that blends the fundamental rights found in the constitution with the human rights included in international treaties. Both groups of rights should complement and support each other, forming a unit where, in the case of differences between the sources, a pro homine interpretation should be employed – that is, the source extending rights the furthest should have primacy. The way in which Argentina’s 1994 constitutional reforms addressed the topic is distinct, but the results have been similar: a number of explicitly listed international human rights treaties have been given constitutional status, and Congress may give constitutional status to other international treaties with a qualified majority vote (Article 75, section 22). However, Convention 169 does not form part of this list. The Constitution

13 Aurelio Cal on his own behalf and on the behalf of the Maya Village of Santa Cruz and others v. the Attorney General of Belize and others, 18 October 2007, Supreme Court of Belize, claims 171 and 172 of 2007, para. 130. 410 christian courtis of the Bolivarian Republic of Venezuela assigns constitutional status to all international human rights treaties (Article 23), although in practice the courts have been less inclined to directly implement treaties than in other countries. It is also an open question as to whether the ILO Convention 169 is strictly considered a human rights treaty – a question that has not yet been discussed in these terms. The case of Costa Rica is peculiar: although the text of the Constitution assigns international treaties a level of importance higher than that of the law but lower than that of the Constitution (Article 7), the Constitutional Section of the Supreme Court has interpreted that international human rights treaties have the same hierarchy as the Constitution, or are even above it in cases where treaties guarantee rights more extensively.14 In other countries in the region that have considered the question of the normative hierarchy of human rights treaties in domestic law, the tendency has been to assign them a lower hierarchy than that of the Constitution but higher than that of ordinary legislation. This is the case in Ecuador (Article 425)15 and in Guatemala (Article 46). This is also the case in Argentina for treaties not included in the numerus clausus list of human rights treaties with constitutional importance – a list that does not include Convention 169. In Mexico and Brazil, despite the constitutional text not being clear on this question, we can see a slow rise in the interpretation of treaties as supralegal, but still infra-constitutional, although this interpretation has not been definitively established.16,17

14 See Decision 1992–3435, 11 November 1992, Constitutional Chamber of the Supreme Court of Costa Rica, case 91-002695-0007-CO; Decision 1994-0588, 10 November 1993, Constitutional Chamber of the Supreme Court of Costa Rica, interpretation of the judgments on merits. 15 In any case, Article 417 of the 2008 Constitution of Ecuador sets forth that, “[i]n the case of international human rights instruments and other international agreements, the principles of no restriction on rights, direct applicability and open-endedness, as set forth in the Constitution, shall be applied to human beings” – a formulation that allows for a “constitutionality block” interpretation. 16 Amparo en revisión 1475/98, Sindicato Nacional de Controladores de Tránsito Aéreo, 11 May 1999, Supreme Court of Mexico, Precedent P. LXXVII/1999, Supreme Court of Mexico, Semanario Judicial de la Federación, t. X, November 1999, p. 46; Amparo en revisión 120/2002, Mc. Cain México, S.A. de C.V, 13 February 2007, Supreme Court of Mexico, Precedent P. VIII/2007, Semanario Judicial de la Federación, t. XXV, April 2007, p. 6. 17 As said earlier, in Brazil human rights treaties approved through a special procedure and with a special majority enjoy constitutional status, but the problem of the legal hierarchy of human rights treaties not approved by such procedure still remains open. Most human rights treaties were ratified before the adoption of the constitutional amendment establishing the special procedure and the special majority requirement for treaties to be granted constitutional hierarchy. notes on implementation by latin american courts 411

In any case, and beyond the specific solution adopted, the trend in case law and legislation in the region is to give greater weight to international human rights treaties, and to consider them more frequently in court rulings.

3.3. Types of Litigation Other factors that can help explain the scope of the application of Convention 169 by Latin American courts (and, in some cases, the Caribbean courts) is the wide variety of lawsuits in which it has been employed. Moreover, within this range of lawsuits, the Convention has been invoked by plaintiffs, and as an exception or justification by the defence, and, in some cases, it has been used in this way by state bodies. For example, Convention 169 has been invoked in constitutional challenges against statutes and administrative regulations, amparo petitions, in disputes between the branches of government, in political- electoral actions, in actions for annulment in administrative decisions, in ordinary civil actions (which discuss issues of property or eviction, for example), in criminal cases, and in cases concerning land laws, amongst others. In some countries – such as Chile, Colombia, and Guatemala – qualified parties may request the court with jurisdiction for constitutional review and opinion concerning the compatibility of a treaty that has been proposed for approval to the parliament with the constitution: in those instances, Convention 169 has indeed been the object of such opinions. Convention 169 has been invoked by diverse parties before courts, including of course indigenous communities, their representatives or individual member of indigenous communities. In several cases, the Convention has been invoked by the national human rights institution, ombudsman, public defenders or prosecutors, in cases where the law allows them to bring cases in defence of human rights, either on behalf of specific classes or on behalf of the public interest. Prosecutors or public defenders have also invoked Convention 169 in criminal cases. The Convention has also been invoked by political authorities – legislative or administrative – as a basis to justify adopted public policy measures. For example, in a ruling by the Constitutional Court of Colombia, the Congress invoked Convention 169 to justify a statute to overturn the presidential veto, arguing that the challenged statute had been enacted with the purpose of complying with international obligations arising from the 412 christian courtis

Convention.18 In a case before the Bolivian Constitutional Court, the administrative authority charged with agrarian reform invoked Conven tion 169 as a defence against individual challenges against its measures.19 In short, the experience in Latin American courts shows a great wealth of possibilities for the invocation of Convention 169, which is not at all limited to cases of a constitutional nature.

3.4. Issues If the variety of the types of lawsuits is large, the thematic variety of these cases is even greater. The areas in which Convention 169 is relevant and those in which it has been used as an interpretive tool are manifold. However, it must be noted that a significant percentage of the cases decided by courts in the region deal with disputes related to land and the exploitation of natural resources situated therein, and that several of these cases relate to the consultation and participation of the community in decisions related to this theme. Another significant portion of the cases deal with the relationship between state criminal law and customary or tribal criminal law, in at least two ways: regarding the limits of the application of state criminal law once customary criminal justice has been exercised, and regarding the limits placed on the application of indigenous criminal law by the constitution and other human rights instruments. Finally, there are also cases that cover a variety of other aspects: the right to education and health care for indigenous communities, respect for political autonomy and the manner in which authorities are elected, respect for cultural identity and cultural symbols, and the composition of state bodies charged with the implementation of the obligations relating to indigenous peoples and communities laid out in the constitution and in Convention 169.

3.5. Different Ways Convention 169 is Used by the Courts Finally, there are also differences in the ways in which different courts in the region use Convention 169. Some of these differences are due to the distinct status of the Convention in domestic law, but this factor does not

18 See Decision C-088/01, 31 January 2001, Constitutional Court of Colombia, (Opinion delivered by Judge Martha Victoria Sáchica Mendez). 19 See Constitutional Case 106/2003, 10 November 2001, Constitutional Court of Bolivia, File 2003 to 07,132-14-RDN. notes on implementation by latin american courts 413 explain all the variations recorded in cases where it has been used. At least two other variables can be useful in capturing nuances that help to clarify the issue. On the one hand, there is a difference between cases in which the court directly applies Convention 169, and those cases in which the Convention is used as an interpretive standard or instrument for other laws. This difference does not exactly correspond with monist or dualist traditions: although the majority of countries in the region have adopted a monist approach with respect to the relationship between international and domestic law, many courts in the region still do not directly apply international law – perhaps due to a strong legalist tradition, which stems from the culture of codification. Even in these cases, Convention 169 has been used as an interpretive tool for other laws – at times, for constitutional norms, and at other times for statutory and other infra-constitutional norms. Another useful distinction is the use of the interpretive norm or standard offered by Convention 169 as a main argument used to decide a question as a persuasive or supplementary argument or simply as an illustrative point. In effect, although in many cases the standards enshrined in Convention 169 or the interpretation of domestic law in line with Convention 169 constitutes the basis of the decision, in many others the Convention is cited as an argument to reinforce or complement the decision-making criteria – that is to say, to add some argumentative weight to a decision made on the basis of another piece of law. In some cases, judges appear to construct a two-level argument: the first level argues on the basis of domestic law, and the second one explains that the proposed solution based on domestic law does not infringe but rather is consistent with the state’s international obligations. In short, the gradual introduction of criteria from international law into domestic law is carried on in different manners. In either case, national courts have become more conscious of the need to take seriously the international obligations of the state, and to translate them into judicial decision-making criteria in cases of conflict.

4. Overview of Cases

I chose to group some of the illustrative cases by theme, taking into consideration matters which indicate the relevance of the ILO Convention 169 for the claims of indigenous peoples and communities, which have 414 christian courtis been the subject of court decisions in various countries. I will review some cases related to four thematic areas: a) the claims related to the collective property of the ancestral lands of indigenous peoples and communities; b) the right of indigenous peoples and communities to be consulted before decisions are made that may affect their rights and interests; c) the positive obligations of the state in situations of extreme hardship involving indigenous peoples and communities; and d) applications of Convention 169 in criminal law.

4.1. Claims Involving the Collective Property of the Ancestral Lands of Indigenous Peoples and Communities Not surprisingly, one of the most important claims made by indigenous peoples and communities concerns the recognition or titling of the property of their ancestral lands. Land constitutes an identity trait for indigenous people, defining their way of life and world view. The land has for indigenous peoples and communities a religious significance, and is also the foundation of their economy, which generally fluctuates with the seasons. One unique characteristic about indigenous claims on land is the claim of collective ownership, in the name of the people or the community as the owners, and not in terms of individual property of the members of the community. In Latin America, the ancestral land of indigenous communities and people has frequently been the object of pillage and plunder by the state and by third parties. The close relationship of indigenous peoples and communities to the land has led to the recognition that their collective property ownership constitutes a condition for the survival of those peoples and communities. Given the importance of the issue, the jurisprudence of the region has not been blind to these claims, in which the invocation of the ILO Convention 169 has played a relevant role. The Inter-American Court of Human Rights, for example, has employed Convention 169 as the interpretive standard for the human rights to property enshrined in the American Convention on Human Rights, in those cases where a claim about the ancestral territory of indigenous peoples and communities is at stake.20

20 The Inter-American Court began its case law on the subject with the Awas Tingni case. This case considered for the first time that the right to property established in Article 21 of the American Convention on Human Rights, whose text is similar to Article 1 of notes on implementation by latin american courts 415

In the case of Yakye Axa,21 the Inter-American Court of Human Rights heard a claim regarding the property of the ancestral territory of an extremely poor hunter-gatherer indigenous community in the Chaco area of Paraguay. The community’s ancestral land was held as private property by third parties. The petitioners argued that the lack of effective action by the Paraguayan government to recognise the legal personality of the indigenous community and their property right over their ancestral lands led the community to wait for a response to pending claims in an inhospi- table environment, in extremely precarious conditions. The lack of access to health care and a means of survival caused the death of many members of the community. Given the conditions of the settlement, children of the community were deprived of food, health care, clothing and adequate education. It was argued that the state had violated the rights to life, to private property, due process and legal protection. The Inter-American Court held that in cases where issues of the right to property – and also the rights to life, due process, and legal protection – are applied to indigenous communities the Court must refer to Convention 169 as the appropriate interpretive standard.22 In this sense, the Court notes that “the close relationship of indigenous peoples with the land must be acknowledged and understood as the fundamental basis for their culture, spiritual life, wholeness, economic survival, and preservation and transmission to future generations”.23 In particular, the Court states that [t]he above relates to the provision set forth in Article 13 of ILO Convention No. 169, that the States must respect “the special importance of cultures and spiritual values of the peoples with respect to their relationship with lands or territories or both, as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.24 On the merits, the Court decided that the time that had elapsed since the community first made its claims, without the state recognising the community’s right to property and without granting effective title over their

Protocol 1 to the European Convention on Human Rights, must be interpreted, when concerning indigenous peoples and communities, as a right to collective or communal ownership of land. See Mayagna (Sumo) Awas Tingni v. Nicaragua, 31 August 2001, IACHR, paras. 148–149. In the cases discussed here, the Inter-American Court expands the legal basis of its ruling, making use of Convention 169. 21 Case of the Yakye Axa Indigenous Community v. Paraguay, 17 June 17, 2005, IACHR. 22 Ibid., paras. 127 and 130. 23 Ibid., para. 131. 24 Ibid., para. 136. 416 christian courtis ancestral lands, amounted to a violation of the community’s right to collective property. Furthermore, the Inter-American Court employed Convention 169 to determine the extent of the measures the state must adopt to restitute community ownership over its ancestral lands, given the situation of occupation of these lands by private property owners. In this regard, the Court referred to Article 16(4) of Convention 169, which states that when the return of the people to their ancestral lands is not possible, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees. The Court added that the restitution of the land or the payment of adequate compensation is not subject to the mere discretion of the state, but must be – in conformity with an integrated interpretation of Convention 169 with the American Convention – decided in consultation with the affected peoples, in accordance with their own decision-making processes, values, customs and traditional laws.25 The Inter-American Court has repeated this doctrine in the Sawhoya maxa,26 Saramaka27 and Xakmok Kasek28 cases. Some domestic courts have considered similar claims. One case decided by the Argentine judiciary is a good example of interpreting the civil law – in this case, the notion of property from the Civil Code – in light of the standards established by ILO Convention 169. The case involved a community from Quera y Aguas Calientes,29 in the Jujuy province of northern Argentina, in which the provincial Civil and Commercial Court of Appeals considered a petition for the recognition of adverse possession, initiated by the indigenous community. A particular feature of the petition consisted in the collective character of the claim: the community requested the recognition of the collective ownership of the land in the

25 Ibid., paras. 150 and 151. 26 Sawhoyamaxa Indigenous Community v. Paraguay, 29 March 2006, IACHR, paras. 117–119 and 150–151. 27 Saramaka People v. Suriname, 28 November 2007, IACHR, paras. 93–94 and 131. 28 Xakmok Kasek Indigenous Community v. Paraguay, 24 August 2010, IACHR, para. 157. 29 Aboriginal community of Quera and Aguas Calientes – Cochinoca People v. Jujuy Province, 14 September 2001, Civil and Commercial Court of Appeals of Jujuy, Argentina, First Chamber. notes on implementation by latin american courts 417 name of the community as the property holder – and not in the name of its individual members. The request was based in the direct application of the provisions of the Argentine Constitution and of ILO Convention 169. It refers to the special cultural and spiritual relationship that the indigenous have with the land and with the territories they collectively occupy, recognised by the cited Convention, which Argentina has ratified. In turn, the defendant – the provincial state – requested that the complaint be rejected, arguing that the community only acquired legal personality five years before the case was filed, and therefore could not have complied with the 20 year time period necessary for the application for adverse possession. The Court held that the recognition of legal personality is merely an act that formalises a pre-existing community: when they asked for legal personality, the community had to prove that they shared a common language, religion, conservation of customs, group identification, and willingness for communal land ownership, in addition to holding free election of representatives, amongst other requirements. The granting of legal personality is thus merely declarative, and not constitutive of the legal personality of the community. The Court stated that, after the constitutional amendment of 1994,

the constitutional norm is designed to allow for the granting of legal personality to operationalize an existing right, that is to say the right is not established with the grant, but the act of concession signals that the right is preexisting and merely makes it effective, guaranteeing, amongst other rights, the right of collective property ownership. In other words, it recognizes that the aboriginal communities pre-date the State … and it adopts, as a protective measure, the assignment of the of the land “that they traditionally occupy,” with which they are guaranteed the right to communal ownership of lands which has been exercised historically and not just since such communities were granted legal personality.

What is interesting in the case is that a civil and commercial court, which usually is accustomed in dealing with cases of individual and corporate ownership, had to directly apply constitutional provisions as well as Convention 169 to accommodate the institutions of private law of the Civil Code to a notion of collective right-holder that pre-existed its legal recognition (i.e. the indigenous community) and the notion of collective or community land ownership in general. To do this, the Court must inter- pret the 20 year requirement for adverse possession – established in the Civil Code – in accordance with constitutional and international norms 418 christian courtis when it is applied to the indigenous community. As such, the Court states that the aboriginal community that has recently been granted legal personality will not be treated as a universal or particular successor in terms of private law; rather, we have to take into account that our law has incorporated a new concept of ownership, specifically communal property, in which possession is not exercised by a specific physical person, but instead by the group that forms this community. Based on expert testimony and a site visit to the community, the Court held that the intergenerational “indigenous community” largely complied with the requirement of peaceful and uninterrupted possession for 20 years, as it had been in possession of their lands since pre-Hispanic times. Therefore, the Court considered proven the pacific and uninterrupted possession by the community, recognised the collective ownership of the land claimed by the indigenous community.

4.2. The Right of Peoples and Communities to be Consulted before Decisions are Made that May Affect Their Rights and Interests One of the most important common issues in the area of indigenous rights in Latin America is the right of the peoples and communities to be adequately consulted before the public authorities make decisions that may affect them. These measures include, for example, those involving the exploitation of natural resources found in their territory, the provision of educational services in indigenous communities, and the design of development plans for indigenous peoples and communities. Adequate consultation is a procedural requirement that must be complied with before a decision is made, and the lack of compliance renders invalid decisions made without consultation. ILO Convention 169 clearly articulates this right in its provisions.30 The Inter-American Court of Human Rights has established jurisprudence on the issue.31 I will outline here, however, various cases decided by domestic courts.

30 See Convention 169, Article 6(1)(a):”[In applying the provisions of this Convention, governments should] consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.” See also Articles 7 and 15 of the Convention. 31 See for example Saramaka People v. Suriname, supra note 28, paras. 133–137. notes on implementation by latin american courts 419

The Constitutional Court of Colombia has clearly established the need for consultation with indigenous communities, fixing the interpretive basis in the requirement of “appropriate consultation”, and invalidating administrative and legislative acts adopted without fully complying with this requirement. Two important cases illustrate its position. In ruling SU-039/97,32 a true leading case on the continent regarding this issue, the Constitutional Court considered a tutela claim (name given to the amparo in Colombia) filed by the Ombudsman (Defensor del Pueblo), in representation of a group of members of the U’wa indigenous community, against the Ministry of the Environment and Western Society of Colombia, Inc., arguing that the defendants violated the rights of the community by failing to adequately consult them before granting a license for oil exploration within their territory. According to the complaint, the defendants only had meetings with a few leaders from the community, which did not satisfy the requirement of adequate consultation. The Ombudsman requested the suspension of concession of the environmental license, and the adoption of necessary measures to carry out the procedure of prior consultation with and for the protection of the indige nous community. He also requested, in a separate complaint, for both the revocation of the administrative act that granted the environmental license and the provisional suspension thereof. Both legal actions also invoked the violation of the indigenous people’s rights to territory, self- determination, language and ethnic culture – since the exploitation of non-renewable natural resources would put at risk the preservation of the cultural, social and economic integrity of the indigenous community and the participation of its representatives in those decisions, as prescribed by Articles 6 and 15 of Convention 169. In its decision, the Constitutional Court emphasised not only that individual members of the indigenous community are right-holders, but also that the Constitution recognises that these rights apply to the community as a group. The Court stated that the interest in the exploitation of natural resources in a manner that guarantees sustainable development must be harmonised with the rights of communities living in the exploited areas to conserve their cultural, ethnic, economic and social identity. The way to harmonise and balance these interests is the creation of a participatory mechanism for the communities concerning the decisions that affect

32 Decision SU-039/97, 3 February 1997, Constitutional Court of Colombia (Opinion delivered by Antonio Barrera Carbonell). 420 christian courtis them. The Court held that consultation is a fundamental right, as it is this participation mechanism that ensures the survival of the community as a social group, affirming that Convention 169 forms part of a “constitutional block” – which requires an integrated interpretation of the fundamental rights recognised in the constitution and the human rights recognised in international treaties. An interpretation of the constitution in line with Convention 169 requires the state to conduct a proper consultation with the indigenous peoples before exploiting natural resources in their territories. The consultation must seek to give the community full knowledge of the project and its possible impact on their social, cultural, economic and political development, as well as an assessment of the project’s advantages and disadvantages. The affected communities must be heard and should they not reach an agreement administrative action must not be authoritarian or arbitrary, but objective, reasonable and proportionate. In any event they must find mechanisms to mitigate, restore or correct the effects of any detrimental administrative measures affecting the community or its members. The Court found that the consultation process with the U’wa concerning the oil exploration project was not carried out in a full and appropriate manner, as the meetings were attended by some community members, but not by their leaders. The defendants also failed to hold a meeting to review the effects of the project – which was never carried on because the license had already been issued. Therefore, as the defendants did not carry on the consultation process according to the applicable standards, and in view of the possible damage the project could cause to the indigenous community, the Court found that the U’wa community’s rights of participation, of ethnic, cultural, social and economic integrity, and of due process had been violated. The ruling granted the temporary injunction, suspended the environmental license and ordered that a proper consultation with the community be conducted. This doctrine has been reiterated and applied in subsequent decisions.33 In a recent case of the utmost institutional importance, the Colombian Constitutional Court brought this doctrine one step further by declaring a congressional statute unconstitutional for lack of adequate consulta tion with the indigenous and Afro-Colombian communities potentially

33 See for example, among others, Decisions T-652/98, 19 November 1998; T-606/01, 7 June 2001; C-418/02, 28 May 2002; C-891/02, 22 October 2002; and T-955/03, 17 October 2003, all delivered by the Constitutional Court of Colombia. notes on implementation by latin american courts 421 affected by it. In decision C-030/08,34 the Constitutional Court considered the constitutionality of the so-called General Forest Act (Law 1021 of 2006), in light of its having omitted prior consultation established by Article 6 of ILO Convention 169 for affected indigenous and Afro-Colombian communities. The Constitutional Court reinforced the jurisprudential line drawn in recognition of ethnic and cultural diversity as a constitutional and fundamental principle of Colombian nationality. It emphasised that this special protection is translated into a duty to carry on a consultation process for indigenous and Afro-Colombian communities, before the adoption and implementation of decisions that affect them – a duty that arises from various constitutional norms and from ILO Convention 169. However, given that the case questioned the adoption of legislation without prior consultation, the Court expanded to its previous jurisprudence. The Court held, when it comes to legislation, that the duty of consultation does not arise in any case that may affect indigenous communities, but only in those that directly affect them. The Court clarified, however, that a statute may be considered as having a direct effect when dealing with issues covered in Convention 169, as well as when due to its general nature its provisions have a direct impact on indigenous and tribal communities. The Court also considered issues related to the manner and timing of consultation during the legislative process, as well as the possible legal consequences of non-compliance. The Court held that although the statute included some legal provisions which preserved the autonomy of indigenous and Afro-Colombian communities for the use and enjoyment of forests in their territories, it also established general policies, definitions, guidelines and criteria that may, in a general manner, affect areas in which indigenous and Afro- Colombian communities are settled, with possible repercussions for their livelihoods and the close relationship such communities maintain with the forest. In such circumstances, the Court determined that lack of consultation rendered the statute unconstitutional. The Court also set guidelines with which a statute must comply to be considered valid in such cases: before adoption of legislation, Congress should inform communities about the legislation, explain the scope of legislation and how such legislation could affect them, and give them effective opportunities to object to such legislation.

34 Decision C-030/08, 23 January 2008, Constitutional Court of Colombia (Opinion delivered by Rodrigo Escobar Gil). 422 christian courtis

The Constitutional Section of the Costa Rican Supreme Court has followed a similar path in declaring unconstitutional the adjudication of a concession for oil exploration and exploitation to a private company by the executive branch for a failure to engage in adequate prior consultation with the affected indigenous community. In Ruling 8019 of 2000, the Court decided on an amparo petition, filed by indigenous communities’ development associations and other stakeholders and based, amongst other laws, on ILO Convention 169.35 The Court decided that the authorities failed to comply with the requirement of prior consultation with indigenous communities, as established in Article 15(2) of ILO Convention 169. The Court interpreted the indigenous communities’ right of prior consultation as a necessary requirement for the respect and participation of minorities in a democracy. The Constitutional Section negatively assessed the minister’s failure to order consultation, which was compulsory, and the failure to publish details concerning the bidding process in the press. Thus, the Court granted relief and nullified the administrative adjudication. A final example comes from the Constitutional Court of Ecuador. This Court also considered, in the case of Arcos v. Dirección Regional de Minería,36 a petition for relief – filed by the Ombudsman, on behalf of the Chachis indigenous community and the Afro-descendent community from the Esmeraldas province – concerning a concession that had been granted by the government to a private mining company to “prospect, explore, exploit, benefit, smelt, refine, and market minerals” existing in the territory of these communities. Amongst other grievances, the petition was based on the non-compliance with the requirement of prior consultation with affected communities, invoking Article 15 of the ILO Convention 169. According to the petition, the concession and the commencement of mining activities would cause irreparable harm to natural resources and the health and life of families in communities residing in the territory, in addition to violating the collective rights of the black and indigenous communities by ignoring the requirements of prior consultation with the communities and the obtainment of their approval for an environmental impact assessment.

35 Ruling 2000-08019, 8 September 2000, Constitutional Chamber of the Supreme Court of Costa Rica, Case 00-000543-0007-CO. 36 Claudio Arcos Mueckay v. Regional Bureau of Mines of Pichincha: Regional Director, 13 August 2002, Constitutional Court of Ecuador, No. 170-2002-RA. notes on implementation by latin american courts 423

The Constitutional Court upheld the decision of the lower court and ordered the suspension of the mining license in question, acknowledging that the mining concession would affect the environment where the Chachis and black populations resided and would alter their way of life. The Court stressed that both the Constitution and ILO Convention 169 require prior consultation to assess the effects of exploitation on the lives of the people, determine if their interests would be prejudiced, and to what extent, before undertaking or permitting any prospecting or exploitation of resources existing on their land. Hence, the act of prior consultation was imperative, and its omission rendered the act illegal. It is also interesting to note that the state argued to justify its failure to conduct a consultation the lack of statutory regulation of the consultation process. The Court rejected this argument, sustaining that the state could not claim ignorance of the right of indigenous peoples and communities to be consulted merely due to the lack of a regulatory framework.

4.3. The Positive Obligations of the State in Situations of Extreme Hardship amongst Indigenous Peoples and Communities Another area in which Latin American courts have produced very interesting judgments is that concerning the positive obligations of the state in those cases where indigenous communities face situations of extreme hardship. An important aspect of these cases refers to compliance with positive obligations relating to economic, social and cultural rights of indigenous peoples and communities – and, more specifically, compliance with minimum core obligations that are essential to these rights. Many of these cases have to do with situations where, due to the lack of compliance with the minimum core content of such essential rights as the right to food, health and life of the community members, in some cases the survival of the community itself is at risk. Concerning this problem, Convention 169 offers a rich approach that articulates various facets that emerge from a complex understanding of the principles of equality and the prohibition against discrimination. On the one hand, it obliges the state to adopt measures to promote the full realisation of economic, social and cultural rights of indigenous communities without discrimination – that is to say, it emphasises the state’s obligation to not exclude the indigenous community from its obligations with respect to economic, social and cultural rights (Article 2(2)(a) and (b), and Article 3). Moreover, the Convention establishes the specific obligation to 424 christian courtis adopt measures aimed at eliminating socio-economic differences between members of indigenous communities and other members of the national community (Article 2(2)(c)). On the other hand, Convention 169 requires that the measures adopted by the state respect the identity, integrity and specific ways of life of the indigenous peoples and communities, even though these special measures may involve a different treatment vis-à-vis the rights generally accorded to the rest of the population (Articles 2(2) (b), 3(2) and 4). Convention 169 also requires the participation of the indigenous peoples and communities in determining their own development (Articles 2(1) and 4(2)). In this sense, the Inter-American Court of Human Rights has set important standards, by developing an extensive interpretation of the right to life. Two of the cases already mentioned, Yakye Axa v. Paraguay and Sawhoyamaxa v. Paraguay, address the scope of positive obligations arising from the duty of the state to guarantee that right.37 In both cases, the lack of access for both communities to their ancestral land and the resulting impossibility of satisfying their basic needs through their own traditional means resulted in a situation of extreme need, reflected in serious malnutrition, a high incidence of preventable diseases and deaths caused by both of these. The Court interpreted the right to life enshrined in the American Convention on Human Rights in a broad sense, deriving from it the state obligation to ensure conditions for a dignified life. In the case of Yakye Axa, the Court synthesises its doctrine in the following way: This Court has asserted that the right to life is crucial in the American Convention, for which reason realization of the other rights depends on protection of this one. When the right to life is not respected, all the other rights disappear, because the person entitled to them ceases to exist. Due to the basic nature of this right, approaches that restrict the right to life are not admissible. Essentially, this right includes not only the right of every human being to be free from arbitrary depravation of life, but also the right to be free of conditions that impede or obstruct access to a decent existence. One of the obligations that the State must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human being and with not creating conditions that hinder or impede it. In this regard, the State has the duty to take positive, concrete measures geared toward

37 Yakye Axa Indigenous Community v. Paraguay, supra note 22, paras. 161–169, 172 and 175, and Sawhoyamaxa Indigenous Community v. Paraguay, supra note 27, paras. 152–178. notes on implementation by latin american courts 425

fulfillment of the right to a decent life, especially in the case of persons who are vulnerable and at risk and whose care becomes a high priority.38 The Court has identified, amongst these obligations, duties related to access to health care, education, safe drinking water and food, and has underscored the need to take into consideration, when adopting measures to comply with said obligations, the cultural identity as well as the vulnerability of indigenous peoples and communities, in line with ILO Convention 169 – considered by the Court to be part of the international corpus juris with respect to the rights of indigenous people. Accordingly, the Court has held that, [i]n the instant case, the Court must establish whether the State generated conditions worsened the difficulties of access to a decent life for the members of the Yakye Axa Community and whether, in that context, it took appropriate positive measures to fulfill its obligation, taking into account the especially vulnerable situation in which the community members were placed, their different manner of life (different worldview than those of Western cultures, including their close relationship with the land) and life aspirations, both individual and collective, according to the international corpus juris regarding the special protections required by the members of the indigenous communities: the provisions set forth in Article 4 of the Convention, the general duty to respect rights, as embodied in Article 1(1), the duty of progressive development set forth in Article 26 of that same Convention, and Articles 10 (Right to Health), 11 (Right to a Healthy Environ ment), 12 (Right to Food), 13 (Right to Education) and 14 (Right to the Benefits of Culture) of the Additional Protocol to the American Convention, regarding economic, social, and cultural rights, and the pertinent provisions ILO Convention 169.39 In both cases, the Inter-American Court decided that the state failed to comply with these positive obligations, and it condemned the state for violations of the right to life. Amongst the remedies, the Court ordered the provision of essential services to cover the basic needs of the affected indigenous communities.40 Faced with similar facts, the Supreme Court of Argentina has responded vigorously to an amparo claim presented by the Ombudsman (Defensor del Pueblo) against the national government and the Chaco province, denouncing the situation of extreme hardship suffered by members

38 Yakye Axa Indigenous Community v. Paraguay, ibid., paras. 161 and 162. 39 Ibid., para. 163. 40 Ibid., paras. 205, 220 and 221; and Sawhoyamaxa Indigenous Community v. Paraguay, supra note 27, paras. 224, 229, 230 and 232. 426 christian courtis of the Toba community, inhabitants of that province in Northeastern Argentina.41 The petition requested compliance by the state with its obligation to adopt positive measures in relation to the situation of the indigenous communities, in accordance with the Argentine legislation and Constitution, and with ILO Convention 169. The complaint stated that the indigenous community found itself in a grave socio-economic situation, and consequently the vast majority of its population suffered from endemic diseases that were the result of extreme poverty and lack of adequate food, health care and adequate housing. It underscored that, in the month before the complaint was filed to the Court, 11 deaths were registered in the community. The Argentine Supreme Court admitted the case, and immediately ordered the state to: a) regarding the protective measures taken on behalf of the indigenous community residing in the region, to inform the Court of: 1) the communities’ population; 2) the budget allocated to the communities and its actual spending; 3) the implementation of health, food, and welfare programmes; 4) the implementation of programmes for the provision of safe drinking water, fumigation and disinfection; 5) the implementation of education plans; and 6) the implementation of housing programs; b) appear at a public hearing before the Supreme Court to present and discuss the information requested; and c) as a precautionary measure, provide safe drinking water and food to the indigenous community residing in the affected region, as well as adequate means of transportation and communication to the closest health posts. The Colombian Constitutional Court has also had the opportunity to rule on this issue. In decision T-704/06, the Court had to consider a tutela claim initiated by an association of indigenous chiefs representing a community living in extreme poverty, against municipal and national authorities.42 The community denounced failure by the authorities to effectively transfer budget allocations meant for the community during a period of four years. According to the petition, the municipal authority in Uriba did not

41 Ombudsman’s Office v. National State and other (Chaco Province) on investigative process, 18 September 2007, Supreme Court of Argentina, provisional measures. 42 Case T-704/06, 22 August 2006, Constitutional Court of Colombia (Opinion delivered by Humberto Antonio Sierra Porto). notes on implementation by latin american courts 427 deliver the corresponding budgetary allocations, and did not include any recognition of the accumulated debt in the administrative agreement needed to formalise payment to the community. The petition also enjoins the central government for failure to monitor the proper transfer of funds. The representatives of the community alleged violations of the rights to human dignity, participation, autonomy of the indigenous communities, recognition of cultural diversity, to not be discriminated against for cultural reasons, to health, education, the recognition of legal personality and to the right to petition the authorities, in accordance with constitutional norms and international human rights treaties, including ILO Convention 169. The Court recalled the constitutional and international obligations of the Colombian state regarding the preservation and cultural identity of indigenous peoples, making an important reference to ILO Convention 169. The Court stated that the state was obligated to undertake positive actions to ensure that indigenous communities are granted the full enjoyment of these rights, emphasising the close relationship between the enjoyment of economic, social and cultural rights, the right of subsistence, and the right to cultural identity. This translates into an obligation to support the indigenous communities, especially those that are the least developed, with the resources necessary to satisfy the abovementioned rights. The Court also stressed that despite the existence of decentralised territorial regimes within the government, the guiding principles of coordination, subsidiarity, concurrence and solidarity still apply – meaning that all involved local entities have the responsibility to ensure that resources effectively reach indigenous communities. In the case, the Court considered proven that, although the resources had been transferred to the municipality, the municipality had neither given them to the community nor kept them. The Court also found the departmental and national governments responsible for violations of the rights of the indigenous community, for failure to effectively control the effective transfer of funds meant for the communities. The Court stated that the state had an obligation to train the community so that it could adequately monitor the disposal of funds – an obligation with which it also failed to comply. In conclusion, the Court declared that the rights of respect for human dignity, health, education, participation, and the autonomy of the indigenous communities, as well as the right to not be discriminated against for cultural reasons, had been violated. The Court ordered, as a form of reparation, the transfer of funds that were due to the indigenous community but were never sent, dividing the financial burden 428 christian courtis amongst the authorities found responsible. The Court also ordered the municipality to sign the administrative agreement needed to transfer the funds. In turn, the Constitutional Section of the Supreme Court of Costa Rica handed down a sentence in favour of an indigenous community following an amparo claim filed by the Development Association of the Indigenous Reserve of Guaymi de Osa, which denounced an omission by the administrative authorities in providing necessary assistance to repair a bridge that had been washed away by heavy rains in the area.43 The population on the Indigenous Reserve of Guaymi had been isolated for several days, forcing inhabitants to cross the river swimming or on horseback. The authorities ignored inhabitants’ requests for assistance, alleging that the work supervisor post necessary to complete the reparation of the bridge was not yet filled. The Association invoked, amongst other legal provisions, Article 6 of ILO Convention 169. The Constitutional Section accepted the arguments of the plaintiffs, and found that the administrative organ had not taken the necessary steps to address the emergency situation and to guarantee the community’s access to health and education centres, amongst others. The Court quoted Convention 169 to emphasise the positive obligations the state has in terms of the economic, social and cultural rights of the indigenous community. Accordingly, the Court granted relief and ordered the appropriate measures to restore the bridge over the Rincon River without delay.

4.4. Applications of Convention 169 in Relation to Criminal Law Convention 169 also includes aspects related to the application of criminal law, which has been an additional object of consideration before courts in various countries in Latin America. Schematically, it can be noted that Convention 169 requires, on the one hand, respect for the justice systems of indigenous peoples and communities, limited by the observance of fundamental rights established by the constitution and internationally recognised human rights (Article 9(1)). On the other hand, in those cases where an indigenous person is subject to the state’s criminal justice system, Convention 169 imposes some specific guarantees, like the right to an interpreter (Article 12), the preference for non-custodial sentences whenever possible (Article 10(2)) and the

43 Ruling 2003-08990, 26 August 2003, Constitutional Chamber of the Supreme Court of Costa Rica, Case 3-007279-0007-CO. notes on implementation by latin american courts 429 duty of the judicial authorities to take into account the customs and cultural characteristics of indigenous people in criminal matters (Articles 9(2) and 10(1)). Several examples from the Guatemalan justice system illustrate how Convention 169 is applied in this area. Respect for the judicial decisions of the indigenous community has resulted in the application of the prohibition of double jeopardy, and hence the dismissal of indictments from the state criminal justice system in cases where an issue has been previously decided by community authorities. This was the doctrine held by the Lower Criminal Court of Drug Activity and Crimes Against the Environment in Totonicapan, in a case where the public prosecutor initiated a criminal investigation for aggravated robbery against three indigenous people, when the act in question had already been adjudicated and a sanction applied to those responsible by the indigenous authorities. The judge stated that recognition of the legal validity of the sanction applied by the community rendered impossible the application of new criminal sanctions to those responsible and ordered the case dismissed, citing ILO Convention 169.44 Consideration for the customs and culture of the indigenous people has also led judges to decide that certain types of culturally adequate behaviour cannot be considered criminal, and therefore to dismiss charges or acquit the accused of such charges. One example occurred before a local court in the municipality of San Luis, in the department of Peten, in northern Guatemala. This example concerns a criminal case initiated against a member of the indigenous community following a report by agents of the national police. The accused was charged with alleged “trafficking of national treasures”. According to the police, the accused traded objects of archaeological value, transporting them from one community to another. The judge dismissed the criminal case, relying on evidence that the accused was a Mayan priest. The judge also found credibility in the fact that the accused transported the objects of historical and cultural value for use in Mayan ceremonies and rituals, not with the intention of selling or otherwise commercialising them. The decision was based on constitutional norms and on ILO Convention 169.45 According to the decision,

44 Case E.312.2003. 6°, 25 June 2003, District Court. Criminal, Drug Trafficking and Environmental Offenses Totonicapan Department, Guatemala. 45 Trial N° 517–2003 Of. I., 18 November 2003, Local Court, San Luis Municipality, Peten Department, Guatemala. 430 christian courtis

Subparagraph (a) of Article 5 [of Convention 169] establishes: “The social, cultural, religious and spiritual values and practices of these people shall be recognized and protected, and the nature of the problems which face them both as groups and as individuals shall be duly considered.” Subparagraph (b) of the same Article of the same Convention establishes that the integrity of the values, practices, and institutions of these peoples must be respected. Consequently, numeral 1 of Article 8 of the international instrument mentioned above, establishes: “In applying national laws and regulations to the people in question, due regard shall be given to their customs or customary laws.” Numeral 2 of the same article establishes: “These peoples shall have the right to retain their own customs and institutions, where such are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights. Procedures shall be established, whenever necessary, to resolve conflicts that may arise in the application of this principle.” What this implies for state institutions, including the courts, is that as a fundamental principle, they must respect the institutions and customs of indigenous people. Taking into account what is established in numeral 1 of Article 9 of ILO Convention 169 states: “To the extent compatible with the national legal system and internationally recognized human rights, the methods customarily practiced by the peoples concerned to deal with offences committed by their own community members shall be respected.” If within customary law there is an individual or community authority, the institutions created according to state law, including the judiciary, may not reproach or consider criminal any activity that is in practice or observance of a custom, that it to say, an activity of an indigenous community institution; on the contrary, the state must respect and distinguish the institutions that function in parallel within indigenous law, whenever government institutions, and especially the judiciary are called upon by constitutional law to impart justice, must make a clear distinction between the law and justice, considering that our indigenous law, which enjoys international recognition, also has its own institutions, in which case the law must not be applied, but instead prompt and comprehensive justice; this interpretation conforms with numeral 2 of Article 9 of the same international instrument cited, which establishes: “The customs of these peoples in regard to penal matters shall be taken into consideration by the authorities and courts dealing with such cases”. In the same vein, the Appellate Court of Guatemala, in considering an amparo claim, held that the imposition of the rule obliging indigenous women in prison to wear uniforms in prison – correspondingly forbidding them to use their traditional dress – violated the obligation to respect the customs and culture of indigenous peoples, affecting their right to cultural identity.46 The case was initiated by the Ombudsman (Procurador de los

46 Amparo N° 46–2003 Of. 1, 30 October 2003, Court of Appeals sitting as amparo court, Third Chamber, Guatemala. notes on implementation by latin american courts 431

Derechos Humanos), based on several provisions of ILO Convention 169. The Court held that the prohibition to the use the traditional dress constituted a typical case of discrimination against indigenous groups and especially against indigenous women. The Court emphasised the incom- patibility of the resolution with the state’s obligation to recognise, respect and promote the culture and traditions of indigenous peoples, amongst which is the use of traditional dress: To force male or female Mayan prisoners to wear a uniform, as in the present case, constitutes flagrant discrimination and a violation of article 66 of the Political Constitution of the Republic, which recognizes that Guatemala is formed by diverse ethnic groups, including indigenous groups of Mayan descent. The State recognizes, respects, and promotes indigenous groups’ ways of life, customs, traditions, forms of social organization, use of traditional dress by men and women and use of dialects; on the other hand, it cannot accept a law, which is completely arbitrary and without legal basis or justification, that attempts to force members of Mayan-descendant indigenous groups to wear uniforms, in an act that clearly constitutes discrimination against these citizens, notwithstanding the fact they are subject to the laws of the courts. Consequently, the Court revoked the prison authorities’ administrative order and restored the right to use traditional dress to affected female inmates. The Constitutional Court of Bolivia has also considered questions related to the application of criminal sanctions in the community. In Constitutional Decision 295/03, the Court had to consider an amparo claim filed by a married couple who were members of an indigenous community upon whom the community had imposed – but not yet executed – the sanction of expulsion and threats to cut off energy and water services.47 The plaintiffs alleged that the sanction infringed on their “rights to work, to enter, remain, and move freely throughout the national territory, the right to have private property and to receive just remuneration for work”. After holding a hearing and receiving anthropological expert testimony, the Constitutional Court found that the sanction imposed by the community was in response to non-compliance, on the part of the plaintiffs, with community rules such as the fixing of a common price for service, the payment of fees and fines and the obligation to do communal work.

47 Constitutional Ruling 0295/2003-R, 11 Ma2003, Constitutional Court of Bolivia, Case 2002-04940-10-RAC. 432 christian courtis

The Court noted that the Bolivian Constitution recognises the right of indigenous peoples and communities to maintain their traditional laws and exercise community justice in cases of violations of these laws. The Court recalled, however, that the application of community laws and sanctions is limited by the Constitution, quoting Article 8 of ILO Convention 169.48 The Court granted relief to the plaintiffs and ordered the community to allow them to stay in the community, under the condition that they adjust their behaviour to the community rules. It also ordered the community authorities to inform the Court, within the following six months, “whether the plaintiffs had adapted their lifestyle to the customs of the Community”. The decision seeks to balance both the interests of the community in preserving its communal order and the interests of the plaintiffs in staying in the community. To achieve such balance, the Court agreed to suspend the pending punishment, but only if the plaintiffs adjusted to the community rules – recognising, in this way, the legitimacy of the community authorities’ decision regarding breaches committed by the plaintiffs.

48 See ILO Convention 169, Article 8: “1. In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws. 2. These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of this principle. 3. The application of paragraphs 1 and 2 of this Article shall not prevent members of these peoples from exercising the rights granted to all citizens and from assuming the corresponding duties.” INDEX

9/11 attacks 86 Cemeteries 277–80, 284 Access to social services 2, 14 Church state relations 11, 229, 230, Accommodation 1, 5, 6, 10, 16, 22, 36, 60, 238–244, 247 66, 71, 74–75, 88, 161, 168, 230, 244, Citizenship 23, 33, 46–49, 74, 80, 82–5, 87, 250–256, 272, 336 89, 134, 136, 139, 144, 290, 291, 302, 303, Advisory Committee 10, 13, 42, 46, 50–53, 305–8 55, 69, 92, 96–97, 103, 107, 111–112, Classification, ethno-racial 124–125, 216–220, 226 128–129, 140 See also FCNM Collective ownership 16 Affirmative action 115–116, 125, 128, 137, Colonialism 76, 334, 352 144, 154 Community Cohesion Review 87 Africa 4, 13, 15, 190, 194, 202, 261, 333–338, Confessionalism 265 341–344, 351–371, 373, 381, 391, 400–401 Constantinople (1881, Treaty of) 289, 291 African Commission on Human and Consultation 15, 31, 50–52, 217, 378, 407, Peoples Rights 14–15, 334–336, 365, 373, 412, 418–23 384–388, 392, 398, 401 Prior 15, 395, 422–3 African slaves 14, 324 Cooperation Agreements 271–74 Aliyah 145n97, 149n111 Council of Europe 22,38, 41–2, 48–9, 52, 79, Arumugam v. S. Rajgopal 135 92, 118, 122, 230, 240, 249, 293, 304, Asia 13, 160, 181, 190, 202, 254–255 305, 306 Assimilation 36, 70, 79, 80–82, 84, 86, 91, White Paper on Intercultural 95, 141, 148, 154, 168, 173, 201, 219, 302, 366 Dialogue 79, 80, 83 Forced assimilation 5, 36, 70 Culture 5, 7, 8, 13, 15, 36 52, 57, 64–6, 68, 70, Athens (1913, Convention of) 291 76, 82, 90, 93–102, 113–4, 117, 126, 130, 148, Austria 40, 81 152, 160, 172, 179, 194, 199, 213–5, 218, 220, 276, 335, 340, 367, 372, 382, 393–4, 415, Balkan Wars 288 425, 430 Barabaig 343 Curriculum 6, 8, 10, 39, 56, 100, 180, 208, Batwa 338 258–259, 280, 295 Belgium 81, 86 Customary law 16, 375, 430 Belgian linguistics case 56 Crucifix 258–259 Biodiversity 189–190, 202, 381 Botswana 367 D.H. and Others v. the Czech Republic 133 Breton language 207 Dahlab v. Switzerland 152n117 Dalits 76 Cairo 87 Data protection 115–6, 119, 124, 137, 154 Canada (Canadian Multiculturalism Descent 140–1, 151, 288, 290, 302, 303, 431 Act) 82N Diaspora 117, 117n1, 136, 148, 154 Capability 8, 52, 159, 176, 200, 252, 335 Disadvantage 11, 13, 14, 21, 29, 40, 49, 58, 61, Definition 159 63, 78, 92, 109–114, 121, 131, 138, 160, 177, Building 8 216, 247, 296, 367–7, 397, 420 Deprivation 8, 159, 161–163, 168, 176 Discrimination 4, 27, 29–31, 43–48, 83, Caravans 60, 67 102–113, 115–116, 123–124, 132–134, 137–138, Case studies 3, 4, 8, 17, 118, 128, 138, 340 140, 143–144, 151, 159, 175, 205, 242–7, Catholic church 11, 265–66, 269–70, 251–6, 268, 292, 304, 317, 328, 353, 272–73, 285 368, 423 Catholic religion 11 Prohibition of 4, 6, 7, 8, 10, 230, 238, Celtic languages 205, 207, 210, 214 242–248, 252–255 434 index

Invidious discrimination 28, 29, 33, 37, Ethnolinguistic vitality 173–175 53, 71–72 Double threshold hypothesis of 175 Indirect discrimination 30, 42–44, 48, European Convention on Human 54, 58, 104–105, 108, 138, 255–256 Rights 296, 297, 300, 304, 307 Duty of differential treatment 10, 42, European Court of Human Rights 252, 254 (ECtHR) 4, 26, 44, 56, 58, 60, 62, 67, Systemic 13, 30, 34, 35, 42, 61, 319 229ff, 248–249, 256, 293, 300, 304, 308 Positive action 11, 30–31, 35, 39, 43, European Charter of Minority or Regional 45–46, 54–55, 110–113, 150 Languages 10, 12, 82n37, 93, 205 Dispossession 14, 165, 339, 346, 364, Article 7 221–2 376, 401 Article 13 222–4 Diversity 1, 7, 36, 70, 80, 97, 116, 134, 175, Committee of Experts 220–6 190, 213, 229, 241, 249, 252, 281, 360–4, Generally 205, 207n4, 213, 220–6 407, 421 European Convention on the Status of Dress code 252 Migrant Workers 1977 83n40 Due diligence 243 European Social Charter 38, 40, 44 European Union 74, 77, 86, 193, 197, 292, Economic activities 2, 13, 15, 65, 214, 293, 300 372, 317 European Commission (Handbook on Traditional economic activities 13, 51, Integration) 83n41 64, 67 European Parliament 78 Education 2, 3, 5–12, 33, 38, 55–8, 70, 83, Race Equality Directive 83n40 91–114, 159–183, 190, 195, 196 249, 251, Equal Employment Directive 83n40 257–258 Equality 1, 5, 10–11, 150, 197, 267, 285, 292, Access to education 2 306, 349, 359, 423 Higher education 196 Equal opportunities 5, 91, 160 Integrated education 6, 92 Formal equality 5, 81 Mother tongue education 7,8, 43, 56–57 Effective equality 5 Education in minority languages Right to equal treatment 5 97–99, 113 Substantive equality 5, 22, 26–31, 37, 42, Multilingual education (MLE) 8, 44, 78, 87, 111, 114, 252, 268, 276 175–176 See also discrimination – prohibition of In India 177, 178, 181 discrimination In Nepal 177–179, 180–182 See also duties of differential Bilingual education 98–99 treatment Submersion education 8, 163, 165, 168, See also reasonable accommodation 170, 171, 176 Exemptions 10 Subtractive education 163, 166, 168, 176 Folgero v Norway 257 Multicultural/intercultural education 6, Forced evictions 95–99, 101–102 Framework Convention for the Protection Minority schools 99–101, 109–110, 292, of National Minorities (FCNM) 10, 13, 293, 294, 295, 296, 298, 299, 301, 309, 118, 120–122, 151, 154–155, 213, 215–20, 310, 312 293, 306 Segregated education 6, 101, 103–110 Commentary on the Effective Employment 38–43, 49 Participation of Persons Belonging to access to employment 2, 3, 5, 7, 11, 35, National Minorities in Cultural, 53, 72, 80, 119, 131, 212, 250–2, 319 Social and Economic Life, and in Empowerment 14, 333, 350, 355–360, 364 Public Affairs 217 Endoroi 15, 358, 373–9, 391–3, 401 Art. 4(2) 112 Ethnic conflict 1, 35, 153 Article 5(1) 218–20 Ethnic cheating 115 Art. 6 95 Ethnicity 6, 76, 123, 132, 264, 325, 359–361 Art. 12(1) 92, 94, 99, 100 Ethno-corruption 115, 125, 128 Art. 12(2) 92, 95, 99 index 435

Art. 12(3) 112 ILO 317–24, 330 Art. 13(1) 94, 100n ILO Convention no 169 13, 15, 16, 181, 317, Art. 13(2) 100n 318, 322, 323, 432 Art. 14(1–2) 92, 93, 97, 99 ILO Convention no 107 317, 318, Art. 14(3) 98, 99 322, 353 Aritcle 15 215–8 Imazighen 339, 343 France 81 Imperialism 8 Freedom of religion 6, 10–1, 41, 83, India 4, 8, 76 152, 229, 238–249, 254, 265, 268, Indian education 298, 392 Language in 168–169 Fulani (mainly the Mbororo), 334, 343 Indicators 318 Fundamental rights 7, 22–3, 26–7, Indigenous peoples 2, 4, 12–16, 25, 43, 52, 33, 42, 46, 47, 53, 68, 85, 229, 235, 266, 57, 61–69, 71, part IV (317ff) 404, 428 Definition 317, 318, 322–324 General rights 4,14 Identification in Africa 344, 349–351 Minority specific rights 3, 4, 9, 13, 22, 26, Discourses 333, 351, 353 28, 38, 41, 53, 71 Integration 1, 3, 4, 7,9, 21–25, 32–37, 39–41, See also Minority rights 46–47, 50, 68–70, 73–89, 91–2, 97–8, 102, 109–11, 153, 174, 206–15, 224, 261–4, 274–7, Gaeltacht (Ireland) 211, 212–3 308, 375 Genocide 1, 7, 116, 165–7, 175, 359 substractive integration Germany 81, 84 (Integration Act, The Netherlands) 84n Global English 192, 195 Two way process 36 Greece 12, 287–303 Inter-American Court of Human Group-recognition 116–117, 123 Rights 322 Inter-cultural dialogue 39, 80, 83 Halacha 145n100, 146n102, 147–148 International Working Group for Hate crime 115–116, 123–124, 133, 155 Indigenous Affairs (IWGIA) 335, Headscarf 242, 251 336, 359 Highlands and Islands Enterprise Immutability 132 (Scotland) 211–213 Irish language Himba 343 Generally 205, 207–13, 226 Housing 3, 23, 37, 44–5, 52–3, 60–1, 66, 77, Impact of education on 208–9 83, 87, 205, 277, 326, 426 Impact of public sector on 209–10 Human dignity 49 Ivan Kitok v. Sweden 135 Human Rights Committee 11, 13, 41–2, 45, 48, 55–6, 213, 233, 357, 393, 400 Jehovah Witness 246 See also UN International Covenant on Civil and Political Rights Karamojong 343 Human rights paradigm 11 Kenya 344, 358–359, 363, 366, 369 Hungary 117n1, 123, 124, 126–127, Khoe 339, 343 138n61, 151n117 Kin-state 290, 291, 302, 303, 306, 307 Hungarian Language 224–5 Kosteski v. The Former Yugoslav Republic Hunter gatherers 14, 337–339 of Macedonia 125n21

Identity Land 52–53, 63–68, part IV (317ff) free choice of 6, 115–116, 118–124, 126, ancestral lands 14–16 137, 139, 154–155 land rights 16, 23, 63, 154, 220, 397 identity deprivation 8, 163 Language 4–10, 288, 292, 293, 294–9, 306, self-identification 6, 14, 323–4, 328, 339, 309, 310, 324, 348, 367, 417 342, 354, 407 minority language 4, 6, 8–10, 91, 97, 99, Identity strategies 168, 171–172, 175 136, 168, 190, 199, 205, 293–5 Collective 174–175 minoritized languages 198, 199, 201 Individual 174–175 official language 9 436 index

language requirements 7, 53–4, 72, 98 Migration 73–89 Language policy and socio-economic Migration Policy Index 81n development 206 Millennium Development Goals 321 Language decline 9 Millet 290, 291, 301 heartland 9 Minarets (Swiss) 85 language loss 9 Minority Research Network 1–3 language shifts 9, 209–210 Minority rights 21, 49, 75, 78, 82, 83, Instrumental use of 172–174 115–6, 120, 125, 137, 153, 291, 293, 345, 357, Integrative use of 172–174 372, 400 Länsmann, Ilmari v. Finland 214 See also fundamental rights – minority Länsmann, Jouni v. Finland 214 specific rights Latin America 4, 13, 15, 191, 197, 321–4, Minority protection 353, 403ff Foundational principles 33 Lautsi (v Italy) 257–259 Mochongoi Lausanne Treaty 12, 287–303 Moi, Daniel arap Lausanne (Convention of) 288, 289 Morton v. Mancari 151 League of Nations 287, 306, 311 Mosques 277–279, 284 Legal personality 12, 256, 297–9, 415–8, 427 Moufti 296–298, 312 Level of scrutiny 29, 31, 42 Multiculturalism 36, 73–89 Leyla &Srcedil;ahin v. Turkey 152n117 Canadian Multiculturalism Act 82n Lifestyle 13–14 Multilingualism 9 See also traditional way of life Multilingual socialization 173–174 Limitations to fundamental rights Murphy’s paradox 116, 123 Legitimate limitations 10, 28, 233, Muslims 11–12, 77, 87, 287–290, 292, 293, 235–236 295, 298, 302, 305, 307 Linguistic capital 192, 193, 199 Muslim minority 11–12 Linguistic double divide 171, 173 Muslim communities 278, Linguistic genocide 162, 165–167 280, 284 Linguistic identity 171–175 in history 261–62, 271 Linguistic imperialism 194, 197, 199 associations 263, 274–76, 283 Linguistic Human Right 162, 164, 172n11 Muslim education 272, 276, 280, Literacy 160n3 281n, 285 Living instrument 26, 46n106, 237 Muslim identity 263–64 London 86 Muslim immigrants 262–64, Lovelace v. Canada 120n8, 135 279, 283 Luxembourg 86 Mutual understanding 6, 34

Maasai 339, 340, 341, 343, 351, 366 Nama 343 Madrid 86 Namibia 346–347 Mahuika v. New Zealand 214 Nationalism 287, 288, 295, 302 Marginalization 14, 86, 166, 173, 209, 217, Nationality 24–25, 46–49 334, 340, 363, 369 Naturalization 139–145, 155 Margin of appreciation 11, 229–244, Nepal 4, 8 247–249,257–259 Netherlands 80, 81, 84 Medium of instruction 39, 56–59, 179, New York 86 200, 208 New Zealand 327, 328 Membership criteria 115–117, 122, 130, Noack and Others v. Germany 219n29 134–136, 139 Nordic countries 199 Metic 153, 235 Norway 324 Metro Broadcasting, Inc. v. Federal Communications Commission 128 Oleh 145 Mexico 324 Ominayak v. Canada 214 Migrants – migrant groups 2, 5, 23, 35, 46, One drop rule 141 48, 60, 70, 73–9, 118, 127, 146, 153, 212, Ottoman Empire 12, 287, 288, 291 262–5, 274–8 Ozawa v. US 140 index 437

Participation 42–43, 46–47, 49–53, 60, Saint Francis College v. Al-Khazraji 143 63–64, 68, 71 Sami 12–13, 200, 220 Having a voice 59 San 337, 338, 367 Having a say 59 Bushmen 337, 338 Participatory rights 15 Basarwa 337, 339, 367 Pastoralists 14, 333–336, 339–344, 358–359, Sandhu v. Lockheed Missiles & Space 364–365, 368, 371 Co. 143 Perception 116–118, 125, 132–134, 137, Scottish Gaelic language 150, 155 generally 205, 207–13, 226 Permanent Court of International Impact of education on 208–9 Justice 78n Impact of public sector on 209–10 Places of worship 271n, 272–73, 278 Perceptions of 208 Pluralism 11 Secularism 230, 248–251, 258, 265, 288 population exchange 288, 289 Segregation 35, 58–61, 77, 84, 101, 105, 108, positive state obligations 230–232, 133, 153 243–244, 253 Sejdic and Finci v. Bosnia and Poverty 4,8 Herzegovina 128n34, 133n50 Property 287, 291, 292, 294, 298–301, 304, Separation of church and state 238, 242 305, 313 Shaare Tefila Congregation v. Cobb 143n91 Proportionality 28–31, 54, 58, 60, 63, 232, Sharia, sharia court 297 235, 240, 251, 253, 257, 394 Social advantages 3 See also reasonability Social cohesion 6, 23, 72, 275 Prosecutor v. Kayishema and Social indicators 4,13 Ruzindana 133n50 Social inclusion 25, 32, 37, 78, 91, 137, Pygmy(ies) 338, 339 277, 296 Inclusion 21, 25, 32–33, 37–39, 41, 42, 57, Race 8 70 Reasonability 8, 28–30, 53, 68, 72 Social security 3,5 Reasonable accommodation 10 Socio-economic rights 2, 21–2, 38–40, Reciprocity 290, 301–305 47–9, 61–2, 69, 71 Refah Partisi 248 Sorbian language 218–9, 221–2 Religious leadership 256 South Africa 346–347, 348, 363 Religious dress 251, 258 Spain 11 Religious leave 252 Spanish identity 261–62 Religious observances 252 State church 239, 241–243, 247 Religious pluralism 266–67, 270, State neutrality 238, 243, 251, 258, 266–268 271n 46, 285 Strict scrutiny 117, 235, 236, 240, 242, 245, Rendille 343 247, 257 Representation 34, 55, 171, 263, 275, Suspect class 240, 245–248 368, 419 Sweden 81, 325 Rice v. Cayetano 151 Switzerland 81 Right to property see property Synergies 23, 27, 35, 53, 63 Right to be taken seriously 31 Roma 77, 103–109, 111, 113, 124–8, 133, Tahrir Square 87 137, 151–2 Tanzania 335, 340, 341, 363, 366 Discrimination in education terra nullius 195 103–109, 111 Thlimmenos (v Greece) 44, 253–254, 256 Romani language (teaching of) 97 Toubou 343 D.H. and others v. the Czech Turkana 343 Republic 103–106 Turkey 12, 287–303 Orsus and others v. Croatia Two way process see also integration 107–109 Sampanis and others v. Greece 106 Údarás na Gaeltachta 211, 212–3, 223 Rule of law 237 United Jewish Organizations v. Carey 143 Rwanda 339, 344, 359, 360, 366, 368 United Kingdom 80, 81, 84 438 index

UN 6, 10–11, 13 United States 326 UN Convention on Civil and Political USA empire 191 Rights 11, 68–70, 233 US v. Cartozian 141n80 Article 27 213–4, 218 US v. Thind 140 Human Rights Committee (HRC) 52–54, 57, 59, 61–68, 213–4, Vakf 12, 298–301, 311 218, 233 Veil 2, 12, 265, 281 UN Convention on Economic, Social Bhurqa, niqab 85 and Cultural Rights See also headscarf Committee on ESC rights 57 Voting rights 34, 46 UN Convention on the Elimination of all forms of Racial Discrimination Way of life 15, 52, 60–68, 222, 264, 368, 393, (CERD) 38, 40, 48 414, 423 CERD Committee 42–43, 45, 48, (traditional way of life) 50–64, 70 Welsh language 207, 221, 223 UN Convention on the Rights of the Welsh Assembly Government 223 Child 42, 45, 48, 49, 57, 59, 62, 70 Welsh Development Agency 223 UN treaty bodies 6 Welsh Language Board 223 UN minorities declaration 10, 214–5, 218 Welsh Tourist Board 223 UN Declaration on the Rights of Wisconsin v. Yoder 152n116 Indigenous Peoples 317, 318, 323, 324 Working Group of Indigenous Minorities UN Permanent Forum on Indigenous in Southern Africa (WIMSA) 357 Issues 324 Workplace 230, 249, 255, 259 International Convention on the Working hours 250, 253, 255 Protection of all Migrant Workers and World Bank 194–196 Members of their Families 1990 83n World Bank Operational Directive 4.10 University of the Highlands and Islands 209 Yenish language 222