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Class 1

fall
He wants us to follow the materials from 1 to 11(the thing that we never followed). First general
introduction he is going to give us today. Just for clarification and classification. After that we
will go to Number 11 article “Westersn Political Theory and Ethnic Relations in Eastern Europe”
by Kymicka.

First thing to say, when you speak of minorities of course you can understand the problem by
saying you have a group of people and then subgroups, nations, tribes, families, races in the
sense of not of scientific validity. That is not the difficult, at first sight.

Minority problem is not dedicated to dealing with all the minorities but certain minorities. E.g.,
you have a big state and you don’t have minority problem and you are more less homogenous
society. When you are in a liberal democracy, if you are regarded as a minority you are not
deprived of your rights. You have some constitutional constraints against the majority. Even if
you don’t accept the rule of majority, that is the rule and you have to obey the rules of the
majority as well. If you look at the ICCPR and ICESR, you can see the benefits that minorities
can enjoy. If you are in a political minority, you can use rights such as petition to government,
freedom of speech. But that is not the problem with protection of minorities. When we speak
about minority problems we think about supplementary(?) problems.
Suppose you are living in a certain group that is very different from the majority, it might be a
religious group. In theory, as a matter of principles, international instruments can guarantee the
rights very well. But it is more complicated than that If religion is a private matter, and you have
a job, you have a right to believe in whatever religion. Everybody is neutral about your religion.
It is not a political matter. In a liberal democracy, religion might seem not the case.

But if you are in a racial minority. Racial minority means some people are the victims of the
race. There are certain prejudice in the society, the people distinguish other people according to
the color of the skin. And they deduce out of it sth, they will think they are dull, or not capable of
sth. There are groups of people who are the objects of persecution. When you are in a minority,
you are less trunk.(?) But it is not always so, they are dominant minorities. When you have a
dominant minority, (but in a small minority, you are usually disadvantaged, it is not religion,
religion is more serious)… you can convert to official religion at the same time, if you convert,
might be ok, you might be saved, whereas, when people say about races, you can’t escape. You
can’t ask what people think whereas in religion you can ask what they think about God.

What kind of protection might you have for races? The color blind laws might help. THE color
will not be count, people will have equal citizenship, color will not be advantage or
disadvantage. If you look at the history of Civil Rights Movement, Martin Luter King, they
didn’t want advantage for black people but they wanted only equality!

If you have a classical HR, the state will not make distinction because of your skin and race and
so on.

The problem in Rwanda was between hutu and tutsi. Belgium privileged the tutsies then they
left.
The victim of races depends on the fantasy, prejudices of the race.

If you look at the history, you have a various cases, until the civil war there was no problem.
After the civil war, black people became citizens. Only in 1961 when the Court decided the
segregation in education is unconstitutional, antiracist tendency started developing. Do these
laws solve the problem? No, because you have the problem of ghettos, addressing past
discrimination of blacks. For this reason, simple legal equality is not enough, for this reason,
America started taking affirmative actions. They didn’t solve the problem at all, of course

Ideally speaking, you don’t need special rights but you need to have smart policies. It is a
cultural problem, linguistic problem. These people come from Africa, when they came to
America they were put separately from their tribes, because they may get together and revolt. .. .
There is a cultural separation, they say they come from Egypt where the civilization started.

Then you have the third broad category, what is called in general terms, very complicated,
ethnic, cultural, national minorities.

The linguistic theory is also related to biological similarities or differences. … People have
tendency of considering own group, as a victim group, or telling other groups are bad people.
You just look at the history and select some facts when your group was suffered and you just
want to have revenge or you grow some aggravation. It might be interesting to look at the way
people look at each other before aggravation has started. Spontaneous prejudices might start
anywhere in the world.

Linguistic minorities want to use their language to be granted to speak and use in social or in
other sphere. They want to protect their language and have some other special minority rights.

If you take this category in minority position, what are the claims of these people? IF you look at
the situation, after WW II, when borders were redrawn, when new states were created. That was
meant to apply the self-determination of people. That was a principle put by one of the
prominent negotiator, Woodrow Wilson. Wilson was adamant. The idea was to give satisfaction
to people via self-determination. If some people are not dominated by other people, people can
develop and guarantees peace.

The problem here was it was difficult to define the people. The best way of defining people by
majority in the territory. But there you are leaving the minorities.

If you look at Hungary, Hungary was bigger before the war. It meant some Hungarians were left
out of Hungary after redrawn of borders. It was the same in Baltic states or in other countries.

Wilson said if you apply the principle of self-determination, for reasons of justice you need to
consider the minorities as well. E.g., Russian in Latvia, Lithuania wanted to be reunited. In order
to have stable borders, you need to get people satisfied, for this reason, you need to give special
minority rights.

You need to have minorities because people may not move from their places but states they
belong to may change, like the examples Gabor told. One person lived in three states despite the
fact that he never moved. Otherwise, if you don’t provide minority rights, how one can adjust
oneself to different states rules? Borders may move all the time but the people may stay at the
same place. They didn’t immigrate to other states.

If you look at the national minorities and groups who are immigrated, the situation is different.
National minorities have strong grounds to claim rights as they haven’t moved all the time stayed
at the same place but the states have changed.

Even when if the majority is not hostile to minorities, the latter still will have problems because
they cannot speak their language, they have problems getting jobs, understanding their culture.
Then even when there is no legal discrimination, they will face social discrimination. They will
have to learn different language, and it is an extra burden on them. Especially, national
minorities who haven’t moved in but left in such situations because of bordering policies, are
strongly disadvantaged.

Ethnic minorities are national minorities, usually. If you look at the word minorities in 1919 the
word “ethnic” didn’t appear. They thought, national, race, linguistic minorities may encompass
everything. Racial minorities is very tricky. The word used for groups of people who lived
together for a long time. And it was used in open and vague way. When Japanese negotiated,
Japanese and Chinese people are discriminated in the US, whereas the same word “race” is used
in other categories of people. After WWI the word “race” is less used and ethnic is more used(?).

What does ethnicity mean? 1. Ethnoc – geneology. IT is a large family. People live together and
they children and children. And you have an ethnic group which belong to a single family. They
carry similar physical characteristics. It might be the basis for racism. Ethnicity may refer to
race. IF you take the situation 1919, Russians, Germans were ethnic groups. …the national
feeling was created rather recently in 19 century. The characterictics of middle ages were
multiethnic. Because Empires didn’t want to impose Multilanguage system. If you look at
Yugoslavia, you select certain language in other to unite people. So the idea of having old
nations, of course, there was some methodology when creating a nation. If you look at the books
in history, there were natural borders. And that is a bogus history. Because it is nationalized. But
nations are groups are pretty much modern. The feeling has been created of nations. E.g., the
names are used in metros, streets in Hungary, it is in artificial way. IS it good or bad? That is a
problem. If people speak the same language and create a nation it might be good and bad. Bad
because you will force the people to behave in certain way.

In a sense, the nations are ethnic groups, it is very often retrospective. You will go back to
history to find the roots and define the nations. The state based on the nations were imported in
the US. What is sure is that if you have a nation state and you have another nation, because of
border change. IF you don’t care about minorities, it might endanger the international peace.

When you speak of minorities that of national minorities or immigrants, and you need to avoid
injustices and international instability, what kind of rights should you provide? If you are in
minority, and at the head of that minority, (also, it is difficult to find what people in the bottom
want, in any group what people really want), it is much more complicated to find what people
want. People may want just integrate with majority, they may like the majority but they will not
tell that because of the historical injustice and what other people in the same minority may think
or react.

The first part of the article 11 we should read.

Kymlicka says as far as ethnocultural groups are concerned HR instruments are not sufficient,
some complementary safeguards are needed. Minorities are groups, so giving rights to groups or
giving representatives, may weaken the individual rights which are given by libertarians. He says
liberal human rights, not just HR, because it is not enough.

If you look at the title “ multicultural…” … citizenship is common to all nationals in the country.
They are citizens which means they are allowed to take part in public activities. They can
compete for public jobs, they can use their rights to freedom of associations in order to make
their interests to be known. When you look at citizens from that point, they are all equal. You are
equal in this case even when there is inequality in terms of economic and social standing.
Kymlicka speaks about multination not even multicultural. When you say multicultural it is
rather ok because there is only one nation. But when culture is regarded as important, it might
become dangerous.

If you take national minorities, it means they want autonomy and they have a right to it as they
have been living in their territory for a long time.

If you take immigrant minorities, they are not much entitled to such rights as they themselves
moved into the state.

The US or Germany borders are not drawn taking into account nations. Some states centralized
such as France some states are like Germany and the US.

If you remember the ICCPR, article 27 is the only regulation. It is very weak article. Countries
like France made reservation from this article.
For two reasons the country might be unified and used only one language:
1. nationalist. (bad reason)
2. precondition of progress, welfare, efficiency, and etc. (good reason).

When you have some groups when they are usually national minorities, giving them certain
priorities, still it may not work. That is the problem today.

Africa was balkanized by Europeans not by taking into account the nations but economical or
political benefits.

There are three categories:


1. Africa,
2. Eastern and central Europe. Germans in Bohemia(west of the Czech republic),
3. Arab and Islam world. Morocco is very specific case, generally speaking, there were
Jews and Arab communities. And then you had or still have Christian minorities. They
are related to colonization. So you had Jews and Christian minorities. Jews minorities are
predicament today. Disappearance is related to Palestine conflict. They are still Jews
advisors of the King in Morocco.
The question about Arabs
There were two opposition solutions:
1. Modernizing like Japan did. To imitate others by keeping cultural specificity. Now in the
muslim world, there was an idea if we want to compete with the West, which lead to
Arab renaissance. They really modernize the country but didn’t allow human rights that
much. A lot of people were unemployed.
2. Things went wrong not because we are not modernized enough but we stopped looking
into texts of Koran. And then the King of Morocco has a legitimacy.
The situations for minorities very difficult because:
1. Israel conflict.
2. Islamization

The question about Africa

U’ll see that the problem dates from 1885, there was a conference in Berlin, colonizers,
Britain, France and etc. they decided to divide Africa, and borders that drawn had nothing to
do but interests of the colonizers. These boderes still existed at the end of 1950ies when
decolonization process was going. And the question is of course, if you listen to African
intellectualists “we don’t have to keep that borders which was left from colonizers”. At the
beginning of 1960ies African countries became independent. There were some decisions the
organization of African Unity stated “we’ll preserve the boders”. It was for prudential
reasons. If you want to redraw the borders, it would be very complicated. In order to get
some stabilization, they didn’t move the borders.

For two reasons it was redrawn:


1. It was not politically feasible. Too complicated. They thought it was unmanageable.
2. Leaders wanted to keep their own power. When you don’t have sense of solidarity of
people, you need to cement …. That was very excuse to remain in power.

Ethnicization of democracy happens when parties built on ethnic lines but not on political ideas.
People will believe not in political programs but in their own group. You think that your own
group will defend you but other groups will not.

As you know, democratization takes place when pressure comes from democratized countries.
(?)

Generally, the position of indigenous people is very crucial. Indigenous people say we are native
Americans, we should have more rights. The indigenous people want the right to self-
determination which will not get. In the example of Canada, it is different. There are 30 mln
people and a lot of spaces. A couple of years ago Eskimos(?) created autonomous state there. But
it is an exception. As far as international law is concerned, you don’t even have declaration for
indigenous people. You have some specific provisions in some international treaties, like in ILO
sphere. This is about how to deal with the different cultures. There are two provisions:1. it is
about assimilation. …what they want to preserve is sth very incomprehensible. Some people say
it is hopeless.

Canada is the promoter of multiculturalism.

Class 3

First, he gives division of minorities, three categories: 1. religious and 2.racial minorities 3.

1. It is often easy to say to solve their problem through HR. The idea is that HR or
constitutional democracies are enough to protect against districts. It only works for
religion, if it is separated from WHAT??? If you want to have a job, if you want
relationship with employers, religion shouldn’t be counted. In entire life you will lead
your social life but you do not have to tell you your religion in entering contact with other
people. However, there are societies where you need to show your religion and it affects
you. If people have conception that religion is attached to whole his activities, then it
becomes a problem. If you live your religion in an extensive way, you will face many
problems. In order to solve the problem, you need to have certain relationship with a
religion. Not all people will be attached to this religion. So these people will have a
problem with those who are attached. Some people do not accept electricity, they do not
use cars, and what is worse, they don’t want their children to be contaminated as well. If
you send those children to schools, they will hear different opinions and there will be a
clash of opinion. And parents do not want children to go school. … Amish people do not
want their children till the age of 18 but 16. They told it is enough. But they were
violating the rights of their children’s HR. There were some cases went to the US SC.
Family has a right to live in a certain way and abolished the law which requires the
children go to school till the age of 18. The conditions for religious groups to be
separated from other cultures is very specific but not easy. In many parts of world people
are not ready to say religion is the private matter.
2. Racial minorities. It existed after WW II. People said race should say at least ethnicity.
They used the word “race” for unidentified way. There was an ambiguity. Now you don’t
say race for ethnicity. It is difficult to fight against racial prejudices. It is possible to
adopt neutral laws, color blind laws but it is not solution for prejudices. Racial minorities
are who are victims of races. Black Americans, for example. It is not a problem of a
religion. It is not an ethnic problem. When slaves were taken to the US, people were
separated, in order not to unite them. After centuries of slaveries, blacks didn’t know
about their origins. They didn’t want some culture, religion or language preserved
because they are already like other Americans. …as the solution wasn’t present, as it
didn’t work, as de facto segregation continued, though you prohibited by law, it is
difficult to prove there is a racism took place in certain situation. …in a company there
are only white people, then employer has an obligation to show that there was not
discrimination in hiring employees. When things do not works, you have other
movements, at certain movement they have become powerful. The idea of free
citizenship, universalistic position, …some black people said it is not our country when it
didn’t work. They told when you have a constitutional rights, statutory rights, if they do
not work, then America is not their country. (?). Some groups said roots of black people
are in Africa and it is related to all tradition of Africa. Some said they are Muslims and
they should follow Islam rules (?). 1. Egyptians were black. 2. They created civilization.
3. Greek stole everything from them and they told they created all theatre etc. 4. after
2000 years, they dominated and exploited black people. … By finding our roots in
Africa, we are superior, they said. The problem here with black Cleopatra, it is a bogus,
there is nothing scientific, just for the sake of saying blacks are superior. This is a
“therapeutic history”. This is very dangerous. In this way, they fabricate the history and
say all western people stole what they had, creating prejudice against white people in the
West.

When some facts pleases you, you accept it easily. But when it doesn’t please you, you will not
accept you immediately. E.g., if your friend is accused of a crime, you can’t accept that. But if
smn else whom you don’t like is accused, you will accept that easily. You’ll say I know that
person he is an evil.

Class 4

We are going to 2 things about Kymlicka’s article…. If we recognize that minority has
legitimate claims towards society as a whole or international protection. If they have claims,
what kind of rights should be provided to meet these claims. One might say they have HR and
that is enough. Other people say it is not enough. They need more rights. We are dealing now
with the general category of …. If you are believing in something and if you are in danger of
persecution. You have a legitimate claim, which means democratic citizens find it legitimate. If
not, we have the idea that we have an official religion. 1. They have a legitimate claim. The
answer is classical HR. 2. They have a legitimate claim. Answer is more should be provided
besides classical HR.
In the case of rational minorities of course, the claim is legitimate, there is a heritage of past
discrimination. The answer is still HR.
In the case of ethno-cultural minorities are concerned, there is a problem. It is good to have these
HR, everybody accept that but are they sufficient? Then it is open to debate. IT is obvious that it
is difficult to assimilate: 1. social –economic, as you don’t speak the language, you are not
accustomed to cultural habits, there are some inequalities and the question is should society do
sth about that, maybe to create welfare state blablabla?.. In certain way it should be corrected.
The second element is more problematic. The first was based on vulnerability. You were talking
about certain handicap if you don’t believe in the right religion. Social Rights are answer to
certain claims. For people who were born in poor community and if they want to develop but
they can’t and are not open to possibilities because it costs a lot. IF the society doesn’t pay for
public education. The idea is that society should pay for that? And then compulsory, many
families want to keep their children at home because they want to educate at home or for some
other reason. So social rights and social security are necessary for addressing these problems.
Now if you take the people in the minority (ethnocultural), it is created to answer to the
questions of … handicap is different you have a problem of communication. Look at the
expression in the UK – paki. Paki is a very derogative word. These people cumulate the
handicap. They are recognizable by racist. They are muslims or some other different religion.
Often they do not speak English enough. But the handicaps are different. Suppose there is no
racism, there is no religion problem but people when do not speak majority language, the people
will still be handicap as they fail the exams, they do not understand the lessons. You can have
here temporary affirmative action policy plus classical HR. It is not permenant. It is kinda
assimilation through generation. After generations this policy will be removed.
Second idea is, if these people are not handicap, let’s help them live as they lived before as they
lived in the time when …. So you want to preserve the language and culture. But it is very
difficult, it will cost a lot, they want to have their own school, university. They should be able to
control the immigration policy. The important problem in Quebec. You need to have strong
autonomy, often you need federal state. What are the good and bad things? The claim is the first
one, we don’t want to be a handicap and keep our religion. We don’t accept assimilation. The
advantage is the people will be happy. When you look at the 1919, it was the idea. They thought
they would give autonomy, to use their own language, religion and culture they wouldn’t want to
join their own state to which they belong originally. But they didn’t give that many rights, of
course.
Integration is little different from assimilation, they can keep their religion and culture.

Philosophers like Kymlicka says they need this kind of strong rights.

Article 27 of the ICCPR, states that people have right to speak in their own language.
If you look at both ideas: assimilation or coexisting of minority and majority traditions.

Page 201. We can envisage the notion of collectivity, group related to rights at three levels:
1. when there is a minority claim. The claim that they are the group of minority and they
need extra protection.
2. article 27 of the ICCPR. There is an interesting comment. Page 72. “In those state 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 won religion or to use their own
language.” Look at ethnic, religious or linguistic vis-à-vis culture, religion, language.
After the covenant entered into force, there was the idea of drafting declaration and then
the convention. At the end of 1992 GA adopted the declaration. There were sentences in
brackets in those phrases where there were not consensuses. All the rights were
considered as individual rights. It might be good or bad. Individual rights might be weak.
There was a provision “shall not be denied” it is also weak, “with the other members of
their group” it is a strong claim as it gives you the right to exercise collectively. Third
dimension which is not present in the ICCPR is ‘collectively exercise the rights’
3. ….it was difficult to catch what he was saying.

A precise reproduction of the above categorization is as follows:


1. There are rights which claim collectivity.
2. There are rights which can be exercised collectively as well as individually like in article
27
3. Certain rights of the minority is guaranteed in the certain areas of the state and as
minority dominates this territory, these rights become like collective rights since
everybody exercise these rights in this territory.

For Monday: protection of minorities before the first world war. What we are going to deal with
is League of Nations. And we will see that UN system is weaker!

4. there are rights which claim collectivity.


5. There are rights which can be exercised collectively as well as individually like in article
27
6. Certain rights of the minority is guaranteed in the certain areas of the state and as
minority dominates this territory, these rights become like collective rights since
everybody exercise these rights in this territory.

Class 5

The problem of balance is a tricky one. If you studied ECHR, article 10 about free speech. If a
state wants to restrict the speech, they need to have a legitimate aim, prescribed by law,
necessary in a democratic society.

There might be a conflict between the culture of minorities and international human rights. If
you want to preserve some cultural values, but if there is a conflict, you will not balance; human
rights will prevail. When you have the right to freedom of conscious but if you don’t have a right
to change the religion, … there is a value in religion you cannot change the religion but HR
allows to change, so can you change your religion or not? It is a tricky problem, but anyway, HR
will prevail. When you speak of religion, you speak about values, ideologies. But you can
follow them provided that it is not contrary to HR. That is the gist of the argument. It presuppose
the culture. There are two options: 1. Vulnerability of the people, they speak another language 2.
You want to sth to come over this vulnerability. First thing might be affirmative actions and
assimilate the people, but people may reject that because they don’t want to loose their religion
or culture. The second thing, you will preserve the culture as long as it doesn’t contravene with
HR.
Traditionally, even if you violated the HR within the country but if you did’t violate the HR of
beyond the jurisdiction, it was ok. It has been so for some centuries. If the rights of women was
violated within the tribe or family, it was fine. Look at Saddam Husein when he treated cruelly
Kurds, it was kinda ok, but when he invaded Kuwait, it troubled the international community.
As long as the group endanger the security of the state, the state might accept it as coexistence.
So the groups within their community could violate the rights of each other because of cultural
traditions or religion, state doesn’t interfere.

You cannot have equality of cultures and individual equality.

Melting pot didn’t work in the US for black people. The melting idea was, people coming
outside the US, from Europe(Europe had a bad image because of authoritarian) and then they
will transferred to the US culture. But it didn’t work for black people.

People have nothing to do together, it is like a destiny, they transferred the culture to their
children. People create a church on the consent. If you are not vulnerable, you don’t want to be
protected. If you want to take individuals, it is weaker in comparison with groups. Groups are
stronger.
However, there are two things, individuals who do not belong to majority may run around Paris
or they may get together like in Paris in suburbs and try to defend their rights. But it is like
another civil war gathering all black people in one place and struggling against majority. Which
of them is better dispersed group of individuals who belong to minority or minority groups who
might be kinda ‘hostile’ to majority.

Sometimes people say HR are for artificial groups, but that is not true all the time. For example,
family is a very intimate group, in comparison with forced marriage… It is not segregated
against – it is HR, sometimes to preserve more than that, that is ok if of course, if it is feasible,
because you cannot grant to all the people around the country. You need to have some particular
common culture. So there are some limitations about that. But the basic standard is that HR
should prevail.

There is a problem of on whom impose HR. People at the bottom may not understand that HR
give leverage that they never have during authoritarian regime. ...

He wants to give some details of legal elements, League of Nations, article 27 of the Covenant,
Framework Convention on Minorities.

What happened in 1919 was something specific. You had these problems before as well,
especially, in Austria-Hungary Empire, you had Slovaks, Jews, and other minorities. In 1919, the
winners discussed how to dismantle the defeated states – Germany and Austria-Hungary. The
idea was to find solution in order to maintain peace in Europe. Woodrow Wilson wanted even to
introduce some American ideologies, to give the people right to self-determination so that there
was stability. Other participants in the conference, French, British thought it would be very
difficult, they just want international stability. The idea was to build international stability
through self-determination of nations. Of course, it was ideal for victors not only to weaken the
opponents but also to weaken it through self-determination by dismantling Austria-Hungary into
many little states, like Bosnia-Herzegovina, Slovakia, Slovenia and so on. Because of this,
Russia lost some territory and some states were created in Baltic, also Finland became
independent. And then there was a discussion, if you want the self-determination of nation to
work you need to deal with the problem of minorities. For example, enlarge Romania and
include Transylvania. SO you cannot avoid minorities.

The question is if the minority is to be granted, there was an idea by Woodrow Wilson, minority
rights should be protected but he wasn’t aware of the problem minorities. He simple thought
minorities should be protected, he had no idea what kind of rights should be granted to minorities
or what rights they might claim.

Finally, the decision was that minority protection provision will not be in the Charter of The
League of Nations. At the same time, if you don’t have such a protection, there would be
instability. That was very important problem. IF you grant general rights to minority protection,
it would be unmanageable, it would create instability. If you don’t provide at all, still minorities
have akin state and you would still have troubles.

So in peace treaties, in minority treaties, bilateral tretaties these were included. These had an
advantage because you limited the scope of minorities. Bu doing that, you avoid unmanageable
amount of minorities. … if you have feeling similar situation with other people, if other people
are granted with some benefits, then you would start thinking why I am not provided that
privileges. People who are not on the list will resent because of the double standard. People who
pretended to be minorities did not like the system because they thought justice was violated since
other minorities were protected but they are not protected. The reason was there was a limited
list of minorities. Other minorities were not considered as minorities, or at least, were not
provided privileges that other minorities are granted.

In 1919 when you look at the provisions of the international instruments on minorities, the rights
granted were very ambitious. You had a League of nations and Council. The weakness was that
Council was not powered to use force. The Council had no real power to enforce the rules of the
League of Nations. The US was never the member of the League. Later even Germany left the
League of the nations. These all lead to weakening of the League of the Nations.

The Permanent Court of International Justice take advisory opinions or take decision. In huge
majority of the cases, German minorities used the system. …. One of the elements that gave bad
reputations, German minorities claimed these rights as a step to cessation but the system was
something country. It was created not to build new states or join these minorities to akin states.
… It took a lot of time for minorities to enter the League of Nations system.

International system is very weak today because only the Covenant of 1966 provided some rights
to minorities and some treaty of 1992.

Class 6

One of the disadvantageous of HR is it fragments society. HR also means new sense of solidarity
can be created. Some people may say if you don’t impose the solidarity from above it is
impossible to create from the bottom. An example could be given from Africa where borders
drawn in …. First HR are individual rights. There is a tension between first and second
generation of rights. In order to preserve first generation of rights you need minimum control
from the state. People want to have space of freedom and privacy. The idea is that state must not
interfere, the state action must be limited. There is a danger that the state might get powerful.
There is a debate going in the US about legitimacy of central government.
If you take social rights, you need a strong state, which control, get money from people and
spend that money for social security. Communist states claimed they are better off in providing
social rights with restricting other individual rights.
Ethno-cultural groups are groups, they are not communities, they are not alone. When you speak
a certain language you will not only speak to yourself but some other people as well. If you
protect the group, won’t you weaken the individual rights? Minority might found themselves in a
worse situation in autonomy than living with the majority group. Because minority group itself
might infringe the rights of themselves, their values might be harmful to individual rights, for
example, women rights. So they may look at the state of majority and say, well, I also want to
live in that society where women rights are not restricted, they are allowed to work or given
some other privileges or equality.
You don’t have much case unlike other rights, such as, freedom of expression. IN minority
protection it is another situation. IT is imaginable. OF course, you have some cases. There are
some cases brought by indigenous people before HRC. IT is also possible from looking at the US
SC case law practice.
He wants to mention one interesting problem, a case which is brought before Permanent
International Court of Justice. This case about German minority schools in Poland. There was a
treaty about Silesia which is a wealthy territory. Germany moved the borders back after WW I
and some hundred kilometers were left to Poland. And then the problem was rights of minorities
who are living in this territory. The problem was not only about creating a German school but
also to subsidize the schools. Some Poland families want to put their kids in a German school,
which is considered to be very good school. The polish government resented the fact. It said that
it is not fair application of minority rights. The polish government didn’t want to lose their
citizens through educating in a German school. So the case was brought to Council and then
might be brought to Permenant International Cout of Justice. The argument was the following:
Do we need an objective theory of belonging or subjective theory of belonging?
This is not the problem of minority rights. The problem was solved earlier. German minorities
were entitled already. It wasn’t the problem of minority. The problem was with the membership.
The question is who belongs to this minority or who has a membership? IT is easy at first sight.
This school is for Germans! If you just ask polish children about German language or culture,
then they fail to answer. The problems seem to be solved. The polish government was for the
objective interpretation of the issue. … It is an unfair interpretation of the provision. That was
the argument by the polish government. It is a difficult argument. Advantageous point of the
problem is that the school was created for the minority; you need to take into consideration aim/
intent of the framers of this treaty. Members of the ethnic minorities do not concern the majority.
The disadvantageous of the position is that it is not that liberal. You have other people with
polish origin, but maybe their language is not polish but German. So it was the second
interpretation. It was the second subjective interpretation. This interpretation was advocated by
the German Government. They told it is a matter of will. There are German schools and
everybody are eager to accept the difficulty. If you are good at it, then it should be fine to attend
these schools. The idea was to grow the German bigger and bigger. The case was brought to
Permanent International Court of Justice. But the Court was decision was ambigious. The court
said that it is an objective interpretation is valid. This is the interpretation is more related to the
spirit, the reason beyond the norms. But at the same time, the Court doesn’t accept that.
Objective interpretation means that is a fact, you can see, it is over there. You can identify
through a test. The director of the school will talk to pupil. The court said no test is acceptable.
Because the test will be humiliating and not acceptable. So the parents will come to and declare
that their kids are German.
SO the court said objective test should be applied but test should not be used. What is the
membership of minorities and who will decide that? This was the problem.

If you say that minority rights of national groups. Some people might say some people are not
national.

Open page 127 of the Reader. Article 3.


Every person belonging to a national minority shall have the right freely to choose to be treated
or not be treated as such and no disadvantage shall result from this choice or from the exercise of
the rights which are connected to that choice.

There is a problem with who belongs to minority group? There should be imaginary border b/w
majority and minority. The article says, an individual belonging to minority can leave that group
and join majority.

Tomorrow we need to ask question from the material. Today we will discuss the framework.

The exam will be based on the class discussion. But we need to be able to use the reader in a
sophiscated.

Class 7

If you begin with the fact people can be handicap because of the cultural belonging, then state
should do something. If you have the necessity, you might answer the question, or meet the
claim. Either you say these people in the countryside, they speak in another language and we
need to help them. The language will disappear in some time. The practice shows this.
Nation States can be in two forms:
1. Nation States from cultural perspective. Minorities will be provided rights, languages and
cultures will be preserved.
2. Nation States from political perspective. There will be one language, the process of
assimilation will proceed.

When you say the Nation state it means the sate consists of the people, who share the same
culture.
According to Kymlicka, civic nations will not work because they cannot communicate with each
other. In South Tyrol(it belongs to Italy), Germans do not live in a civic nation. Their rights as
minority rights are more or less protected.

In the west they want civic nations, like in France. In Central-Eastern Europe, people want ethnic
nations.

The idea civic nation is feasible provided that modernized languages. ???? what ??
For example, Hebrew was modernized for Israel.

There was a double standard during the existence of the League of Nations. Some minorities had
certain rights, while certain minorities didn’t get those rights. It led to frictions.

What are the basis concepts?

Ethno-cultural minorities – it is a new problem. Ethno-cultural handicap different from political


handicap.

The idea is that we cannot accept de facto discrimination. There is a type of national minorities
that are dealt with in Kymlicka’s article. National minorities are civic nations. Ethnically
speaking,

Framework Conventions:
p. 127

Article 3 is important. One important element is that the convention doesn’t mention collectively
exercise rights and autonomy; the states are not ready to grant them.

The Convention grants some rights, which are not contained in other instruments.

The spirit of the Convention: “belonging” something to be understandable, the persons belonging
to minority can drop the belonging.

“Principles” this is a framework convention, the rights are not directly applicable, they become
rights when the states legislate. It has a weakness because of its directly inapplicability.

There is an important element in Art 5 (2),


“Without prejudice to measures taken in pursuance of their general integration policy, the parties
shall refrain from policies or practices aimed at assimilation of persons belong to national
minorities against their will and shall protect these persons from any action aimed at such
assimilation. “
Integration is less demanding than assimilation. When people assimilate you don’t only ask to
accept the rules of civic nation but also whatever is done in the nation, you should adopt.
On the other hand, if you have just coexistence or autonomy, on the matters of culture,
education, there is a risk of separation.
The autonomy is not in the convention. At the same time, the convention is something to say
against assimilation, which is in article 5(2)

“Integration” is good, in order to get integration you need social measure, security and so on, so
far(the beloved phrase of the professor). So the state has the general integration policy, and it has
a right. Parties shall refrain from policies, which means the states are not allowed, which are
aimed at assimilating against their will. “against their will” is very difficult. What is the will of
the people? You need to explain them. The question will be biased. You must distinguish policy
of assimilation.
Individual assimiliation is permitted.

Article 6-8 just reiterates what other instruments contain.

Article 9 is important:

Article 10 (2) It is about language. There is double condition: 1. there is a small group for a long
time 2. a big group coming recently.

“such request correspond to a real need “ is also a problematic. It is difficult to identify if there is
a real need. The notion of real need as element of objectivity is very contentious.
“as far as possible” it is also an escape tunnel.

Article 14.

1. The parties undertake to recognize that every person belonging to national minority has
the right to learn his or her minority language.

This doesn’t add anything special. As they are contained in other instruments.

2. In areas inhabited by persons belonging to national minorities traditionally or in


substantial numbers, if there sufficient demand, the Parties shall endeavor to ensure, as
far as possible and within the framework of their education systems, the persons
belonging to those minorities have adequate opportunities for being taught the minority
language or for receiving instruction in this language.

If you have the only right to learn language, it means there is some assimilation. The formulation
is similar to article 5.

Explanatory report should be read because it is fun to read.

There will be two questions. There will be an element of knowledge. The other part related to
what you think of the problem. It would be interesting to hear your own perspectives.