Academic journal article Journal on Ethnopolitics and Minority Issues in Europe : JEMIE

Who Are the Minorities? the Role of the Right to Self-Identify within the European Minority Rights Framework

Academic journal article Journal on Ethnopolitics and Minority Issues in Europe : JEMIE

Who Are the Minorities? the Role of the Right to Self-Identify within the European Minority Rights Framework

Article excerpt

Introduction

'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.'

(para 32, CSCE/OSCE Copenhagen Document 1990)1

The right to self-identify has been somewhat neglected in the expanding body of literature on the European minority rights framework.2 Yet this is a right of considerable importance to both individuals and groups, forming an integral part of the developing framework. This article examines the implications of both individual and collective dimensions of the right to self-identify and reappraises the key challenges to its realisation. The article argues that its status as a fundamental right remains unclear, over a quarter of a century after inclusion of the principle of self-identification in the Copenhagen Document. The article contributes to and develops current debates over the future of minority nations and minority rights (e.g. Gagnon, 2014 and Tierney (ed), 2015) by arguing that more needs to be done to strengthen the right to choose to be treated as belonging to a national minority (or not) as a fundamental right. The article starts by revisiting some of the 'justice-oriented' arguments made in the early 1990s about the need for group-differentiated rights in order to highlight the importance of the right to self-identify as an integral part of the European minority rights framework. It then proceeds to argue that the case for giving greater prominence to this right is strengthened if the challenge of cosmopolitanism is also considered. Such accounts tend to adopt a more dynamic approach to identity and group membership, placing particular emphasis on the plurality of identities and the value of dialogue and contestation.3 The second part of the article is focused more specifically on the challenges to the realisation of both individual and collective dimensions of the right to self-identify. This part considers ambiguities over the scope and significance of the right at the time of the adoption of the Copenhagen Document and of the drafting of the analogous provision in the Council of Europe's Framework Convention for the Protection of National Minorities 1995.4 It then proceeds to examine the challenges that have emerged since that time. It is argued that a primary problem is the continued deference to States in relation to the Framework Convention's scope of application and the failure of States to internalise the right within their domestic legal systems. It concludes by considering the future of the right, arguing that there needs to be greater focus on the internalisation of the right at the domestic level.

1. The right to self-identify and the role and purpose of minority rights

'We should view human cultures as constant creations, recreations, and negotiations of imaginary boundaries between "we" and the "other(s)". The "other" is always also within us and is one of us....Struggles for recognition among individuals and groups are really efforts to negate the status of "otherness", insofar as otherness is taken to entail disrespect, domination, and inequality.' (Benhabib, 2002: 8)

The peace and security context for the development of European minority rights law after 1989 is well established (e.g. Kymlicka, 2007), and clearly reflected in the Preambles of both the CSCE/OSCE's Copenhagen Document and the Framework Convention. So too is the historical focus in Europe on the protection of'national' minorities in the traditional sense, i.e. groups which consider themselves to have a distinct 'national character' or identity to the majority population (Claude, 1955: 2) and have 'longstanding, firm and lasting ties' with the State in question.5 The broadening of the Framework Convention's scope of application to cover immigrant groups and other 'new minorities' and non-citizens through the work of the Framework Convention Advisory Committee (ACFC) has been explored elsewhere (e.g. Ringelheim, 2010). …

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