From Minority Protection to a Law of Diversity? Reflections on the Evolution of Minority Rights

In: European Yearbook of Minority Issues Online
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  • 1 Professor for Comparative Constitutional Law, University of Verona and Senior Researcher, European Academy of Bolzano/Bozen.
  • 2 Senior Researcher for Comparative Constitutional Law, University of Trento and European Academy of Bolzano/Bozen.

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  • 1 Because they necessarily depend on the ideological perspective adopted. See John Packer, "On the Content of Minority Rights", in Juha Raikka (ed.), Do WeNeedMinority Rights? (The Hague, 1996),121-78. 2 For these reasons, the different approach chosen by the OSCE High Commissioner for National Minorities in the second half of the 1990s is very promising. He presented a set of recommenda- tions (named after the places where these were elaborated: Oslo, The Hague and Lund) on the practically most relevant issues for minorities, such as linguistic rights, educational rights and rights to effective participation in public life; see mendations/index.php3; and John Packer, "The origin and nature of the Lund Recommendations on the Effective Participation of National Minorities in Public Life", 11 Helsinki Monitor (2000),

  • 41. The aim of these soft-law recommendations elaborated by a group of independent experts is to show the wide range of possible solutions for different and frequent practical issues hoping to persuade (especially governments) rather than having to impose uniform 'standards'. However, it again depends on the political will of implementation, but acceptance and the will to cooperate are general preconditions for satisfactory legal regulations of minority situations. 3 Roberto Toniatti, "Minorities and Protected Minorities: Constitutional Models Compared", in Tiziano Bonazzi and Michael Dunne (eds.), Citizenship and Rights in Multicultural Societies (Keele, 1995), 198. 4 See Bruno de Witte, "'Ihe Constitutional Resources for an EU Minority Protection Policy", in Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union. 7he Way Forward (Budapest, New York, 2004).

  • 5 As an example, this tendency in 'minority protection' can be compared to the 'protection of the environment' which is by its very nature an objective of collective interest and thus shared by all governmental subjects and spheres of government and has to be reached through a variety of instruments. Like the clear general interest in a healthy environment and in "biodiversity", a similar interest exists in a pluralist and "differentiated" society. 6 The case of Italy might serve as an example, which presents a territorial differentiation at the constitutional level, with the establishment of special regions as distinct legal systems, and a state framework law for the protection of linguistic minorities outside these regions. The single provisions and instruments provided by this law are to be activated and implemented upon the initiative taken by the provincial and/or municipal assemblies thus giving these levels an active role in determining the concrete contents at the local level while allowing for a high degree of differentiation. 7 See Franceso Palermo and Jens Woelk, "No representation without recognition: the right to polit- ical participation of (national) minorities", 25 Journal of European Integration (2003), 225-48. 8 For instance forms not directly linked to territorial autonomy, which are nothing really new, especially in a historical perspective. As highlighted by different scholars, there seems to be a tendency to return to a regime of personal rights which move together with the individuals they belong to, with a certain analogy to the legal system in medieval Europe. Cf. Paolo Grossi, L'ordine giuridico medievale (Roma, 2001).

  • 9 Similarly, it can be argued concerning the compensatory function of the social rights which are in the same way implemented through differentiating rules aiming at promoting the objective of substantial equality (in addition to the mere formal concept of equality). Only the effective equal standing regarding starting conditions allows for the application of equality in its formal sense as a precondition and the base for democracy in its classic sense.

  • 10 This example does not argue in favour of one specific model of minority schools, as it has already been mentioned that 'one size fits all' solutions are not conceivable due to the different contexts. While a separated school system has successfully addressed the security concerns of some minor- ity groups such as the German-speaking group in South Tyrol, the Basques and the Catalans in Spain, etc., in other cases, establishing particular, separate educational institutions might set the stage for heightened levels of discrimination and social segregation (as has been the case, for example, in Bosnia and Herzegovina, Georgia, Azerbaijan and Armenia). 11 Cf. e.g. Article 5, Council Directive 2000/43/EC on prohibition of discrimination based on racial grounds, OJ L 180, 19/07/2000, 22 ("Race Directive"). Similar: Article 4(3) of the Framework Convention for the Protection of National Minorities. 12 Cf. Joseph Marko, Autonomie undlntegration (Wien, 1995).

  • 13 Cf. as an example in this sense, regarding political representation, recommendation no. 22 (last point) of the Lund Recommendations (1999): "periodic review of arrangements ... can provide useful opportunities to determine whether such arrangements should be amended in the light of experience and changed circumstances".

  • 14 See Article VI-1 and the Preamble of the Draft constitutional treaty establishing a Constitution for Europe, OJ C 169,18/07/2003. 15 Of course, the complexity of the new `law of diversities' can also mean additional costs, especially of an economic nature. However, even mere `protection' does have its costs and the question is allowed whether the promotion of diversities might not bring benefits which at least equal the costs. At the end, the specific judgment on this issue is not economic, but highly political in nature. 16 As an example for an attempt in this direction Article 4 of the Trentino-South Tyrol autonomy statute can be quoted. While indicating the "national interest" among the limits of regional and provincial legislation, it specifies that the national interest includes the protection of minorities. By this means, the limit has to respect a counter limit and the positions of the majority (national interest) and of the minority (its own protection) have to be balanced within a unitary and sysye- matic framework. 17 Corresponding to the happy expression coined by Gustavo Zagrebelsky, Il diritto mite (Torino, 1992).

  • 18 Asbjørn Eide, "Protection of Minorities. Possible Ways of Facilitating the Peaceful and Constructive Solution of Problems involving Minorities", UN Doc. E/CN.4/Sub.2/1993/34, 38 et seq. 19 See, for example, Will Kymlicka, Multicultural Citizenship (Oxford, 1995); and Karl Renner, Das Selbstbestimmungsrecht derNationen in besondererAnwendung auf Osterreich (Leipzig, Wien, 1918); see also Erich Fr6schl, Maria Mesner and Uri Ra'anan (eds.), Staat und Nation in multiethnischen Gesellschaften (Wien, 1991), 61 et seq. 20 See on this phenomenon Giandomenico Majone (ed.),Deregulation orRe-regulation?Regulatory Reform in Europe and the United States (London, New York, 1990).

  • 21 This includes an organization of the minority groups which would permit (and guarantee) the cooperative and consensual formulation of the operational rules of diversity also within the group, like in the case of the apartment-owner's assembly regarding issues of common interest. 22 Supreme Court of Canada, Reference re Secession of Quebec [1998J, 2 S.C.R. 217; 20 August 1998. 23 Respect for and protection of minorities has been included in the Copenhagen Criteria for EU enlargement. The statement in the Treaty establishing a Constitution for Europe that minority rights form a core value within Europe (Article 1-2) will assist in the acknowledgement of the need for greater participation of minorities in society. It will also act to strengthen the ability of minorities to claim their rights even in states with weak domestic provisions for them.

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