Daniel Thürer and Zdzisław Ke˛dzia (eds.) Managing Diversity Internationales Zentrum für Minderheiten Centre International des Minorités Centro Internazionale delle Minorità Center Internaziunal da Minoritads International Center for Minorities 1 Daniel Thürer and Zdzisław Ke˛dzia (eds.) Managing Diversity Protection of Minorities in International Law Bibliographic information published by ‹Die Deutsche Bibliothek› Die Deutsche Bibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at ‹http://dnb.ddb.de›. All Rights Reserved No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system, without written permission from the copyright owner. © Schulthess Juristische Medien AG, Zurich · Basel · Geneva 2009 ISBN 978-3-7255-5927-5 Cover: Alberto Giacometti, La Place II © FAAG / 2009, ProLitteris, Zurich Photo: © bpk / Nationalgalerie, Museum Berggruen, SMB / Jens Ziehe www.schulthess.com Preface 2008 brought us back to two landmark moments in the human rights history – the adoption of the Universal Declaration of Human Rights 60 years ago, and the Second World Conference on Human Rights in Vienna, since which fifteen years have passed. Anniversaries, however, always carry with them not only chances but also risks. On the upside, one can see them as an opportunity to take stock of what happened and to design the future. On the downside, they might allow the past to overshadow current needs and challenges. Although contributing to the commemoration of these important anniversaries, this book avoids possible nostalgic pitfalls. It serves the memory through addressing one of the most important present and, for sure, future issues and challenges – the protection of national minorities. Historically, the protection of minorities has appeared in three major contexts: shielding members of minorities against suffering caused by an oppressive majority; the risk of minority-related discrimination becoming a source of an international or internal conflict; and society’s well-being and enrichment due to the contribution by minorities to community life. In different historical periods one or another context came to the forefront. In fact, it was the concept of universal human rights that has brought all these considerations together, referring them to a common value denominator: human dignity. In 1948, the Declaration of Human Rights was a solemn call for their universality. Since „all human beings are born free and equal in dignity and rights“ everyone is entitled to be protected against discrimination of any kind, irrespectively of, among others, his or her race, colour, language, reli- gion, or national origin. The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was the first successful attempt to list the relevant rights and responsibilities in one single international document. Thirteen years of negotiations preceding the adoption of this Declaration produced a striking result not only by its content but also by its spirit, reflecting the synergy of subjective and objective dimensions of its subject. While focusing on minorities’ entitlements, the Declaration underlines the contribution of the protection of minorities to the stability and development of the state, as well as to the friendship and cooperation among peoples and States. Not surprisingly, the Vienna V Preface Declaration and Programme of Action continued the same approach one year later. The Framework Convention for the Protection of National Minorities adopted shortly afterwards within the Council of Europe managed to be even more specific on the dimensions of the minorities’ protection. Having recognized this protection as part and parcel of the human rights system in general, it clearly refers to „the upheavals of European history“ as evidence to the essentiality of the fate of national minorities to stability, democracy, security and peace. Going beyond the political perspective, the Convention unequivocally points to cultural diversity as „a source and a factor, not of division, but of enrichment for each society.“ Although the United Nations Millennium Declaration, adopted in 2000, was not very specific regarding individual rights and freedoms, it referred explicitly to minority rights in the context of the implementation of the principles and practices of democracy and human rights. It is remarkable that during the preparatory process to the 2005 World Summit, the UN High- level Panel on Threats, Challenges and Change considered the minority protection under the heading „Conflict between and within States“ as one of preventive measures.1 Nevertheless, the 2005 World Summit Outcome Document2 took a holistic approach by noting that „the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to political and social stability and peace and enrich the cultural diversity and heritage of society.“ The triangle of mutually supportive concepts related to minorities, histori- cally developed and reinforced by the World Summit, seems to be essential: the protection of minority identity and empowerment of minority members through the protection of their rights; enrichment and development of societies by minorities; and the prevention of international and national conflicts through addressing deficits in minorities protection. Its internali- zation may be the most enduring and convincing factor in generating a minority-friendly mindset among societies, supportive to pro-minority poli- cies and, eventually, leading to the empowerment of persons belonging to minorities as full members of the society and simultaneously holders of their own identity. 1 A/59/565, § 94. 2 A/RES/60/1, § 130. VI Preface Fortunately, despite continuing xenophobia and hostilities against those who are different, the acknowledgement of the positive role of minorities and their contribution to the life of societies is increasingly spreading through our minds. One example among those which may endorse this essentially positive outlook – a few years ago, at a ceremony of naturalization, a re- presentative of the Canton of Geneva (a canton with a large percentage of foreign residents), addressed a dozen new citizens with the following words: „While welcoming you I would like to insist that you preserve your different cultures and traditions of origin – in this way the entire Swiss society will be enriched by newcomers; otherwise, we may not benefit so much from your arrival.“ But if we are to benefit from others, we need to give them an opportunity to share their culture and their traditions with us – and we, in turn, should offer an insight into our thoughts, traditions and convictions. We must, in other words, establish a dialogue. This booklet contains texts prepared for and presented at a Conference of Experts organized by the Institute of Public International and foreign Constitutional Law at the University of Zurich on 18/19 November 2005. The purpose of our meeting was to discuss the idea of creating a centre in Switzerland which would bring representatives of minority and majority groups from various countries together for a mutual exchange. The Convivenza Foundation has been established to provide a forum for such a dialogue. Through the exchange of ideas and experiences, participants can learn from each other. Convivenza aims to gradually build up doctrines and practices in co-operation with people directly concerned. As a principle for our meetings, we chose the Canton Grisons (Graubünden) in Switzerland: Its highly diversified population provides an example of tolerance – it symbolises the ideal of different people living together peacefully. That is, as its name underlines, the ambitious purpose of Convivenza: Not just to further co-existence but co-operation, mutual understanding and support, in short, to allow people to live a live shared with each other. The articles collected here are all concerned with this aim. Apart from papers presented at the Conference in 2005, members of the Board of Convivenza have added two contributions which deal with central questions of our subject. In addition, the history of Convivenza and its rationale are briefly explained. Finally, a position paper of a group of renowned experts on VII Preface “Minorities and Majorities: Managing Diversity – a Fresh Look at an Old Problem” is published in this book. The Zurich Conference was supported by a grant from the Direction of Public International Law of the Federal Department of Foreign Affairs, where Dr. Jürg Lindenmann has been very helpful and supportive. We also thank the Rector of the University of Zurich for his warm words of welcome, and the staff of the Institute and all the participants for engaged contributions to a highly stimulating, successful meeting. It seems important to us that this meeting brought together academics, practitioners, and minority representatives. For too long, minority issues have been discussed and decided over the heads of the people directly affected. Indeed, the enrichment through, and empowerment of, the members of minorities are concepts the potential of which still needs to be further explored. We are convinced that this book is an important step on this road. Zürich/PoznaL, December 2008 ZDZISAW KADZIA