04 November 1994 - 06 November 1994

Protecting Individual and Minority Rights in Democratic Systems: Options and Implications

Chair: Professor Rosalyn Higgins QC

Our conference was infused with a particular awareness, notably among European participants, of the extent to which the removal of the Soviet-Communist straitjacket and Cold War constraints had released tensions and pressures generating a wide range of concerns about the position of minorities within states. Bitter experience, as in the former Yugoslavia, had deepened awareness of danger in this field; but there still often seemed more force behind fissiparous than behind unifying or reconciling impulses. The peaceful management of such problems - apparent moreover, in one form or another, in almost every continent - challenged both analysis and prescription.

Our concern was essentially with minorities needing to be treated politically as in some sense distinct community groupings within states; but we found no ready universal definition or set of identifying criteria. What we mostly had in mind was groupings distinguished in terms of such factors as culture, race or language, and seeing themselves (though we were not minded to accept self-definition, or an assertion of “victim” status, as a conclusive basis of claim) as potentially threatened in respects which they felt to be cardinal to their sense of identity; and in practice whether such groupings were accepted as meriting “minority” recognition depended in large measure on the pragmatic and largely-political test whether their magnitude and behaviour could command sufficient attention from their parent state.

States, we recognised, varied widely in their attitudes to handling minority issues. The severest problems usually arose where a state - especially perhaps a new one feeling externally precarious - perceived threats to its territorial integrity, or risks (most marked when a substantial minority felt special affinity with another neighbouring state) that the loyalty of many of its citizens might be in doubt. Situations of this kind could involve fundamental issues of security, and thus ultimately of armed conflict; their control therefore had special importance. Largely on this ground, we were disposed to draw a sharp line between minority rights and claims to political autonomy and self-determination; shortcomings in states’ behaviour towards their minorities often reflected a fear that concessions on the former would drift into giving perilous ground on the latter. Our unease about incorporating self-determination within any concept of minority rights reflected also our awareness that even in those situations where a minority had a clear geographical concentration within a state, demarcation and homogeneity were never perfect - new minorities within the minority would arise.

The risks of minority alienation were in the long run best reduced when the state had the self-confidence and skill to treat significant minorities in ways accommodating their identity tolerantly and sensitively within the wider community’s social, political and economic structure. A generous view of minority rights enhanced loyalty and state cohesion, though it needed to be partnered by a genuine acceptance among the minority of duty towards the state and the core values and standards which it embodied and guarded. We noted that there remained among major states key differences of approach - for example between trying to assimilate all citizens to a common inheritance and culture, as in France, and seeking rather to integrate a minority’s maintained identity within a consciously multi-cultural society. We noted too - without resolving - a problem where special minorities (like gipsies or “travellers”) might appear to count on public benefits earned by a majority way of life from which they had opted out.

We were minded to acknowledge that indigenous peoples, outnumbered and largely dispossessed by incomers, had special entitlements. These entitlements should rest, it was suggested, on the distinctive character of their identity - almost always linked to the land - rather than on claims of compensation for historic wrongs; this latter basis - not capable of being limited to indigenous peoples - was liable to extension of unmanageable scope and highly-contentious contemporary equity.

What should be the essential character of minority rights? - to what extent, and on what basis, should they be seen as something distinct from and additional to individual rights such as non-discrimination? We found no ready answers. Almost all of us were minded to seek as much as possible of what minorities needed on the primary basis of individual rights, and some of us (noting, for example, that the powerful European Convention on Human Rights went no further) were reluctant to recognise any additional special category beyond that. We saw that some reasonable rights, such as the use of a preferred language, could have no expression outside some framework of community; but we acknowledged that if special community rights were set up difficulties could arise when an individual member sought to exercise a right to opt out of the minority. A substantial strand of opinion among us was inclined to think that entitlements going materially beyond a (widely-interpreted) individual-rights concept were different in character and context-dependent, a matter for political bargain that must take case-by-case account of widely-varying circumstances - how big a minority, how much diversity could a state reasonably accept, how much extra cost could it reasonably carry, and the like - rather than be derived from specific and absolute rules of universal application. Where problems arose, as for example in clashes between strongly- held values of the majority and the minority (over the treatment of women, say, or monogamy, or the slaughter of animals), trade-offs had to be made; and the shaping of these could not safely be reduced to the application of rules.

We were nevertheless firmly reminded that Article 27 of the 1966 International Covenant on Civil and Political Rights had pointed to, and the UNGA 1992 Declaration on minority rights had unmistakably spelled out, state duties in respect of minorities which were clearly of collective import, and which as clearly had an intended force reaching well beyond an entitlement to consideration, or a starting presumption. There could be no realistic question of going back upon all this, or subtracting from it. Many of us were however minded to regard it as going far enough - the establishment of yet further norms, or the translation of the Declaration into Treaty form, seemed not of foremost priority. Implementation of what had already been agreed should (so it was argued) be the prime focus. We surveyed briefly the international instruments available to help or impel states in this regard. There were interventionist risks, and also some institutional overlaps and rivalries; but we acknowledged the general value of international concern, comment and pressure, especially when applied to democratic states. There was a role accordingly for both UN and (where sensitivities so allowed) regional action, as for example notably in the CSCE; and indeed non-governmental organisations, international and domestic, could often contribute usefully.

By what means were minority rights - whatever their specific content in a particular state - best fixed, genuine respect for them maintained, and the contentment of the minority secured? The answer, we knew, had to have several components. Democracy itself seemed almost always a necessary though not a sufficient condition; democracy effective in relevant ways - that is, giving the minority a real voice and real access to a fair share of power and influence in the state - was a particularly important component. We reached no categoric conclusion about political parties based on minorities - most of us thought this at best risky and undesirable in most situations, but absolute prohibition could often in practice be circumvented, at least informally. We observed that the counterpart of discouraging political groupings in “minority” form needed to be an acceptance that the state should define itself in civic rather than national terms.

Education mattered, as almost all of us agreed; spreading the values of tolerance, acceptance of matching rights and duties and historical understanding of diversity could play a major part in successful integration. There were nevertheless risks - as uncomfortable examples showed, minority claims within education systems could have a divisive character, and inappropriately-aggressive indoctrination or ill-conceived “correctness” in the presentation of history could do significant harm. Beyond the formal educational system, there was a special responsibility upon political leaders not only to resist temptations towards giving issues an anti-minority slant, but more positively to promote the acceptance of diversity and recognition of its enriching contribution to the wider society.

How big apart should the law play in all this? It would be agreeable if a blend of wise political management and enlightened social attitude could solve all the problems; but we realised that on any practical view there remained key roles for the law - to secure good practice, to define and clarify, to express society’s values and, over time, to help educate. Its framing was not without traps - poorly calculated, or moving too far ahead of general societal assent, it could deepen division or provoke backlash if it appeared to confer privilege or to canonise difference. But it remained a necessary underpinning to political and social action.

One of the most pervasive impressions of our discussion as a whole was the near-impossibility of framing any prescriptions, beyond the individual-rights core, that could be directly and concretely applied to all minority situations Both minorities themselves and their settings varied very widely in character. For any candidate prescription an invalidating instance could almost always be cited; the general nature of the problems, and therefore of approaches to dealing with them, moreover plainly differed a good deal as between America and Europe (and indeed within Europe). But the debate brought home to us, at the least, the urgency and sensitivity of the issues, and the need for political priority and political skill in addressing them.

This Note reflects the Director's personal impressions of the conference. No participant is in any way committed to its content or expression.

Chair: Professor Rosalyn Higgins QC
Professor of International Law, London School of Economics (LSE), University of London



Mr Fatsah Ouguergouz
Assistant to the Commission of Experts established by Security Council Res. 935/1994 and the Special Rapporteur of the UN Commission on Human Rights (human rights violations and genocide in Rwanda

The Rt Hon Sir Thomas Bingham
Master of the Rolls
Mr Vernon Bogdanor
Reader in Government and Fellow of Brasenose College, Oxford University

Sir Thomas Legg KCB QC
Permanent Secretary, Lord Chancellor’s Department

Mr Bryan Magee
Visiting Fellow in Philosophy, Wolfson College, Oxford

Professor James Mayall
Professor of International Relations, London School of Economics and Political Science

Mr Colin Munro
Department for Conference on Security and Cooperation in Europe, Foreign and Commonwealth Office

Mr David Seymour
Lawyer, Legal Adviser’s Branch, Home Office, London

Professor Malcolm Shaw
Sir Robert Jennings Professor of International Law, University of Leicester

Dr Patrick Thornberry
Director, Centre for Minority Rights Research, Department of Law, Keele University

Professor Stephen Scott
Professor of Law, McGill University, Montreal

Ambassador Audrey Glover
The Director, Office for Democratic Institutions and Human Rights, Warsaw, Conference on Security and Cooperation in Europe

Dr Dieter W Bricke
Central European Adviser, Foundation of Science and Politics, Ebenhausen

Professor Klaus Dicke
Institute for Political Science, University of Mainz

Dr Günter Pleuger
Director and co-ordinator for Human Rights Questions, United Nations Department, Foreign Office, Bonn.

Professor Dr Erica-Irene A Daes
Senior official of the United Nations System; member and Special Rapporteur, UN Sub- Commission on Prevention of Discrimination and Protection of Minorities

Professor Géza Jeszenszky MP
Budapest University of Economics: Reader (1981 -); Head, Faculty of International Relations (1990-)

The Rt Hon Chief Justice Rajsoomer Lallah              
Chief Justice of Mauritius

Professor Boguslawa Bednarczyk
Institute of Political Science, Jagiellonian University, Krakaw

Miss Anna Kochmarchuk
Student, Faculty of International Economics, Lviv University

Mr Dennis Hayashi
Director, Office for Civil Rights, Department of Health and Human Services

Professor A E Dick Howard
White Burkett Miller Professor of Law and Public Affairs, University of Virginia

Dr Kevin F McCarthy
Senior Social Scientist, RAND

Dean William L Robinson
Dean, District of Columbia School of Law, Washington DC

Professor Terrance Sandalow
The University of Michigan: Edson R Sunderland Professor of Law