Human and Minority Rights Protection by Multiple Diversity Governance

History, Law, Ideology and Politics in European Perspective

Joseph Marko, Sergiu Constantin, Joseph Marko, Sergiu Constantin

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781134830435
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Human and Minority Rights Protection by Multiple Diversity Governance provides a comprehensive overview and critical analysis of minority protection through national constitutional law and international law in Europe. Using a critical theoretical and methodological approach, this textbook:

• provides a historical analysis of state formation and nation building in Europe with context of religious wars and political revolutions, including the (re-)conceptualisation of basic concepts and terms such as territoriality, sovereignty, state, nation and citizenship;

• deconstructs all primordial theories of ethnicity and provides a sociologically informed political theory for how to reconcile the functional prerequisites for political unity, legal equality and social cohesion with the preservation of cultural diversity;

• examines the liberal and nationalist ideological framing of minority protection in liberal-democratic regimes, including the case law of the European Court of Human Rights and the European Court of Justice;

• analyses the ongoing trend of re-nationalisation in all parts of Europe and the number of legal instruments and mechanisms from voting rights to proportional representation in state bodies, forms of cultural and territorial autonomy and federalism.

This textbook will be essential reading for students, scholars and practitioners interested in European politics, human and minority rights, constitutional and international law, governance and nationalism.

The Open Access version of this book, available at http://www.taylorfrancis.com, has been made available under a Creative Commons Attribution (CC-BY) 4.0 license.

1

Introduction

Joseph Marko

1.1 Minority protection: a paradox?

Any overview and critical analysis of minority protection through national constitutional law and international law in the European context – as the first part of the title of this book indicates – cannot be limited to a chronological description of the development of legal standard setting and a legal-dogmatic analysis of respective case law of courts or reports of other monitoring mechanisms. Instead, we must raise the two fundamental questions from the very beginning:

•Why should we protect minorities at all?

•And, if we should, is it possible to effectively protect them?

Neither question has been answered affirmatively in either theory or practice in the past without reservations.

John Stuart Mill famously argued in his Considerations of Representative Government, published in 1861, that ‘Free institutions are next to impossible in a country made up of different nationalities’ (Mill ([1861] 1991) and US Supreme Court Justice Sandra O’Connor stated in her reasoning in Shaw v. Reno (1993) – a voting rights case from North Carolina concerning giving a second African American candidate a chance to win a seat in the House of Representatives through redrawing the boundaries of electoral districts – that ‘Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters’ (Shaw v. Reno 1993). Moreover, since the year 2000, we can observe three processes of renationalisation all over Europe.

First, there has been a resurgence of massive violent conflict since the collapse of communist regimes in Central and Eastern Europe in 1989 and the following break-up of the communist multinational federations of Yugoslavia in 1991 and the Soviet Union in 1993. Against the expectations of Western political regime transition theories that liberalism would replace communism as legitimising ideology for the new democracies (Fukuyama 1992), the ‘velvet divorce’ of Czechoslovakia and nation building under liberal-democratic auspices in Poland, the Czech Republic and Hungary remained an exception to the rule in the 1990s. In general, ethno-nationalism became the driving force for what has been called ‘nationalizing nationalism’ or ‘transborder homeland nationalism’ by Rogers Brubaker (1996) in the transition processes all over Eastern and South-eastern Europe. This led in effect to further deterioration of the relationships between the respective state-forming nation and national minorities, despite the fact that minority protection had explicitly been established as one of the so-called political Copenhagen conditionality criteria for accession to the European Union (EU) in addition to democracy, the rule of law and the protection of human rights in 1993 (Kochenov 2008; Agarin and Cordell 2016). Moreover, also the relations between the newly established Russian Federation and the EU have dramatically deteriorated under Putin’s leadership since 2010, in particular with the annexation of Crimea by Russia in 2014 – the first violent change of international borders in Europe after 1945 – and, at the time of writing this book, a continuing protracted violent conflict in Eastern Ukraine (Toal 2017).

Second, in Western Europe, particularly in Great Britain, Spain and Belgium, a national paradox can be observed whereby sub-national, regional political parties mobilise against the dominant nation. The leaders of the Scottish National Party, the Catalan Convergència i Unió and the Flemish Nationalist Party no longer accept that Scotland, Catalonia or Flanders are simply called regions, minority nations or – even worse – national minorities. What they claim instead is their recognition as equal – though ‘stateless’ – nations (Keating 2001a) or even a right to external, national self-determination through secession (Medda-Windischer and Popelier 2016; Devine 2017).

Third, all over Europe we face the rise of right-wing populist and extremist parties (Bar-On 2013; Pirro 2015; Akkerman 2016; Heinisch and Mazzolini 2016) pretending to protect the national cultures of European countries against the population flows of global migration and the challenges stemming from the need for immigrant integration into European societies. Since many of the migrants coming to Europe over the past three or four decades and their second- or third-generation descendants – so-called new minorities (Medda-Windischer 2009, 2017) – have a Muslim background, discrimination against them has amounted to outright Islamophobia in and beyond electoral campaigns (European Monitoring Centre on Racism and Xenophobia 2006; Fundamental Rights Agency of the European Union 2017a). This has been exacerbated by several terrorist attacks in Europe in the past two decades, leading to a securitisation of the necessity of immigrant integration in public debate, so that even the most high-ranking politicians in Europe, such as Angela Merkel, Nicolas Sarkozy and David Cameron, publicly declared in 2010 and 2011 that ‘multiculturalism is dead’ (Bloemrad 2011).

With this background in European public discourse and empirical studies on the alleged failure of multiculturalism, politicians as well as researchers (Brubaker 2004: 116–131) not only describe, but also claim the need for a return to assimilation as the only viable theoretical concept to defend national identities and social cohesion against the ‘balkanization’ of European societies (Rodríguez-García 2010: 255). Advocates of a more ‘assertive liberal’ approach argue that ‘multicultural policy is not a cure-all’, but that ‘policies must protect the majority culture’ instead (Joppke 2012: 1). Many European countries have therefore changed their immigration and integration policies and legislation, adopting mandatory language tests and so-called integration courses for permanent residence permits and citizenship, thereby focusing not only on the knowledge of institutions and national languages which are instrumental for integration into the educational system and the labour market, but also cultural practices in line with the (social) norms and values of the host societies (see, in particular, Fundamental Rights Agency of the European Union 2017b: 51–4). In this way the legal obligation is placed on immigrants to take up host-country values and cultural practices and to actively demonstrate their desire to belong to the majority population (Marko and Medda-Windischer 2018).

In conclusion, over the centuries and up to the present day, old, autochthonous national minorities and indigenous peoples as well as new minorities stemming from immigration have been perceived and declared a problem or even a danger for physical security, social cohesion, the governability and the political unity of sovereign states. But if there are only ‘problems with minorities’ (Jackson-Preece 2005a: 5–7), why then protect minorities at all?

Why should we protect pre-modern lifestyles and cultures, as if they were so-called tribal communities or collective forms of self-government, established by (constitutional) law either as territorial or cultural (i.e. functional) autonomies, which do not necessarily guarantee individual rights for everybody irrespective of their linguistic or religious identity? Is it not unfair or even a violation of constitutionally guaranteed individual rights if you have to declare your language affiliation before you can exercise voting rights or get a job in the public service system, such as is the case under the Autonomy Statute of South Tyrol in Italy? And is not the fact of granting rights to collective entities and not to individuals by definition an aberration from the very idea of human rights as personal rights?

Hence, if seen from such a classic liberal as well as liberal-egalitarian ideological perspective, minority rights can indeed at best be justified as compensation for past injustice which shall, however, no longer be upheld when the injustice done by state action is corrected. Thus, affirmative action in American constitutional terminology and positive measures according to EU law should remain temporary measures. And these liberal ideological perspectives even seem to prohibit the recognition of groups with different identities and sociocultural practices as possible rights holders when any claim for permanent protection and promotion of their cultures and lifestyles is declared unjustified. Thus, even under the auspices of liberal-democratic regimes, the need for minority protection remains, ideologically and legally speaking, contested by the argument that the prohibition of discrimination is sufficient to guarantee equal human rights to every person without distinction. Any claim for protection and thus preservation of religiously or linguistically defined diverse groupings and their members is then declared an anti-liberal, conservative ideology of culturalism against the seemingly natural historical development of modernisation, including secularisation and individualisation.

With regard to the second fundamental question – how effective minority protection can be when based on these ideological underpinnings – the answer must be negative. Minorities are and will always be seen as a problem, because they do not fit into the legal categories, constitutional principles and institutional mechanisms of European national states created over the past centuries in the processes of state formation and nation building. Even in the best case, minority rights will be understood by nationalists as well as liberals as being granted in the form of an exemption from the rule or norm, implying that a state and nation and their so-called authentic culture are naturally the norm. Therefore, minority protection and promotion is seen as a generous toleration of others and their alleged difference.

1.2 From minority protection to multiple diversity governance: the main hypotheses of the book

Having said this, the ‘minority rights response’ (Jackson-Preece 2005a: 174–81) claiming tolerance and legal protection for members of minorities – not the groups themselves – will always remain reactive and defensive as follows from the normative prescriptions of the ideologies of both liberalism and nationalism. Their fusion in the nineteenth century and the creation of a monist nation-cum-state paradigm, based on a ‘meta-ideology of identitarianism’ (Malešević 2006: 4–6, 202–3) following from the ‘trinity of community, culture, and identity’ (Wimmer 2013: 17), frame our understanding of all the central concepts of modern nation states and societies, such as territoriality, sovereignty, state, nation, people, legitimacy and the feeling of belonging, to this day. And it is this nation-cum-state paradigm which makes us perceive minorities as dangerous for the security, social cohesion, governability and political unity of peoples and states with the political conclusion that all forms of otherness be it in terms of language, religion, culture or social practices are essential differences which should be kept at bay. For intellectual and political advocates of identitarianism with the ideals or goals of either proletarian unity, the Volksgemeinschaft or national identity, the significant Other – the ‘stranger’ famously characterised by Georg Simmel (1908: 509–12) – cannot belong to Us and must either assimilate; that is, identify with our values, norms, and habits or be excluded from the ‘imagined community’ (Anderson 2006) as a danger for the respective collective goal. Therefore, both assimilation and exclusion will lead to the elimination of all forms of diversities (i.e. pluralism).

Hence, it is, first and foremost, a historical–sociological analysis of the twin processes of state formation and nation building in Europe which must open our eyes to the deep structures of the monist-identitarian nation-cum-state paradigm. But, as is highlighted by the historical record in Chapter 3, neither the French civic state-nation model based on the republican-universalist ideology of ‘state neutrality’ and ‘cultural indifference’ nor the German model of an ethnic nation-state, which transforms cultural diversity into ethnic difference through legal institutionalisation and thereby creates the categorical majority/minority division, can help us to overcome the Scylla of assimilation of others who do not adhere to the same religion or speak the same language or the Charybdis of physical extinction and/or territorial or institutional separation of others through genocide, ethnic cleansing, forced population transfers, ethnic segregation and other forms of discrimination as the perennial ‘dark side’ of modern European history (Mann 2005). Hence, the concepts and principles for conflict regulation, developed at the structural junctures of European history, such as the model of cuius regio, eius religio after the Augsburg Peace Treaty of 1555, the model of laïcité (i.e. strict separation of state and religion), developed after the French Revolution, and Marx’s and Engels’ notion of the nation state as a capitalist-bourgeois phenomenon which will wither away with the development of socialism and communism, remain trapped in the identitarian nation-cum-state paradigm.

The central argument of this book, therefore, postulates that not minorities are the problem endangering national states and societies, but exactly the other way round. The modern national states and their positive law, ‘embedded’ in the ideologies of nationalism and liberalism, ‘create’ minorities by law and/or practice and endanger them in their rights to physical and psychological existence, diverse and multiple identities, institutional equality and effective political participation. It is precisely the meta-ideology of identitarianism and consequently thinking in terms of indivisible identities – be it the identity of the individual or the sovereign state or nation – as well as the reifications or even naturalisations of mental concepts, normative principles and social relations, which have led in the past to the elimination of all forms of pluralism in the practice of both ‘models’ of national states developed in the processes of state formation and nation building in Europe.

The paradigmatic thesis underlying this book is therefore that we have to deconstruct the framing of minority protection through the monist-identitarian na...

Table of contents

• Cover
• Half Title
• Endorsements
• Title Page
• Copyright Page
• Contents
• Figures
• Tables
• Boxes
• List of Abbreviations
• List of Contributors
• Preface
• 1 Introduction
• 2 The interdisciplinary approach law, sociology and political sciences
• 3 The historical-sociological foundations: State formation and nation building in Europe and the construction of the identitarian nation-cum-state paradigm
• 4 Law and ideology: The ideological conundrums of the liberal-democratic state
• 5 Law and sociology: The constructivist and interpretative turn
• 6 Against annihilation: The right to existence
• 7 Against assimilation: The right to multiple identities
• 8 Against discrimination: The right to equality and the dilemma of difference
• 9 Against marginalisation: The right to effective participation
• 10 From minority protection to multiple diversity governance
• Documents of international organisations
• Table of cases
• Bibliography
• Index