This was a novel idea—the first time that the Western democracies collectively asserted that respect for minority rights was a prerequisite for membership in the family of liberal democracies. It has also been a controversial idea. While there has been broad support for the general principle that post-communist countries should meet minimum standards of minority rights, there has been far less agreement about what precisely these standards should be. Western countries differ significantly in terms of which rights they accord to which minorities, or even which groups they recognize as "minorities." Trying to find a common framework for articulating pan-European standards has not been easy.
As a starting point, European organizations looked to Article 27 of the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966, which for many years was the only example in international law of a minority rights norm. While this article provided a starting point, it was widely viewed as insufficient for two reasons. First, the right to "enjoy one’s culture" as originally formulated included only negative rights of non-interference, in effect simply reaffirming that members of minorities must be free to exercise their standard rights of freedom of speech, association, assembly, and conscience. These minimal guarantees, while vital, were inadequate to address the issues underlying violent ethnic conflicts in post-communist Europe. These conflicts centered on various positive claims, such as the right to use a minority language in courts or local administration; the funding of minority schools, universities, and media; the extent of local or regional autonomy; the guaranteeing of political representation for minorities; or the prohibition on settlement policies designed to swamp minorities in their historic homelands with settlers from the dominant group. Article 27 has nothing to say about such claims. If European standards were to be useful in resolving such conflicts, they would have to address claims for positive minority rights.
Article 27 has a second limitation in that it applies to all types of ethnocultural minorities, no matter how large or small, recent or historic, territorially concentrated or dispersed. Indeed, the UN Human Rights Committee has declared that Article 27 applies even to visitors within a country! Article 27, in other words, articulates a truly universal cultural right—a right that can be claimed by all individuals and carried with them as they move around the world.
This commitment to identifying universal cultural rights limits the sorts of minority rights that can be recognized in international law. In particular, it precludes claims that flow from facts of historic settlement or territorial concentration. Since Article 27 articulates a universal and portable cultural right that applies to all individuals, even migrants and visitors, it does not articulate rights that are tied to the fact that a group is living on what it views as its historic homeland. Yet it is precisely claims relating to residence on a historic homeland that have been at stake in all of the violent ethnic conflicts in post-communist Europe, (e.g., in Bosnia, Kosovo, Macedonia, Georgia, Chechnya, Nagorno-Karabakh). Indeed, homeland claims are at the heart of most violent ethnic conflicts in the West as well (e.g., the Basque provinces, Cyprus, Corsica, Northern Ireland). In all of these cases, minorities claim the right to govern themselves in what they view as their historic homeland, including the right to use their language in public institutions within their traditional territory, and to have their language, history, and culture celebrated in the public sphere (e.g., in the naming of streets, the choice of holidays and state symbols). None of these claims can plausibly be seen as universal or portable; they only apply to particular sorts of minorities with a particular sort of history and territory. In short, these are all cases of ethnonational (or ethnonationalist) conflict, revolving around competing claims to nationhood and national territory.
To be useful in resolving conflicts in post-communist Europe, European standards would need to go beyond universal minority rights and articulate targeted minority rights, focusing on the specific ethnonational groups involved in these conflicts. Whereas Article 27 lumps together “national, ethnic, religious and linguistic” minorities, the Council of Europe’s Framework Convention and the OSCE High Commissioner focus solely on "national minorities." While there is no universally agreed-upon definition of "national minorities," the term usually refers to historically-settled minorities, living on or near what they view as their national homeland. Most countries have explicitly stated that immigrant groups are therefore not national minorities.
Unfortunately, having set themselves the courageous and novel task of defining the rights of national minorities, European organizations then lost their nerve. The new norms do not in fact address the challenges raised by national minorities. There is no discussion of how to resolve (often competing) claims relating to territory and self-government or how to assign official language status, and there are no guarantees that minorities can pursue higher-level education or professional accomplishment in their own language. States can fully respect these standards and yet centralize power in such a way that all decisions are made in forums controlled by the dominant national group. They can also organize higher education, professional accreditation, and political offices so that members of minorities must linguistically assimilate in order to achieve professional success and political power. In short, these norms do not address the clash between minority self-government claims and centralizing state policies that generated the destabilizing ethnic conflicts in the first place.
In fact, the Council of Europe and OSCE norms are essentially a revised version of the Article 27 right to enjoy one’s culture, strengthened to include certain modest positive rights, such as public funding of minority elementary schools, the right to spell one's surname in accordance with one’s own language, and the right to submit documents to public authorities in the minority language. These changes are significant, but they do not address the distinctive characteristics and aspirations of national minorities—their sense of nationhood and claims to a national homeland.
This failure to address the more fundamental issues of cultural identity has, I believe, resulted in an unstable situation. At the moment only national minorities are currently protected by these European norms, however inadequately. But since the actual rights being codified are not based on claims of historic settlement and territorial concentration, there is no reason why they should not be extended to apply to immigrant groups as well. And indeed there is currently a movement within both the Council of Europe and the OSCE to do exactly that—in effect, to move back to the original Article 27 model that attempts to articulate universal cultural rights applicable to all minorities, new or old, large or small, dispersed or concentrated.
Many people involved in issues of minority rights assume that redefining the category of national minorities to include immigrants is a progressive step: The more groups that are protected, the better. Moreover, immigrants in Europe today are clearly a vulnerable group in need of international protection. The ideal solution would be to adopt a declaration focused on distinctive needs of immigrants, but that seems unlikely. After all, none of the EU states has ratified the 1990 UN Convention on the Protection of the Rights of All Migrant Workers, and the prospects of adopting European-level norms are almost nonexistent. Consequently, the only realistic way to achieve this protection is by fitting immigrants under some pre-existing scheme of minority protection, which in the European context means sliding them under the umbrella of national minorities.
While this extension is progressive in giving protection to groups that would not otherwise be protected, we must also recognize that it is potentially regressive in other respects. It amounts to the slow abandonment of the bold experiment of articulating international norms targeted at the distinctive historic/territorial claims of national minorities—norms capable of resolving potentially violent ethnonationalist conflict.
Is there any alternative? One option would be to enshrine a norm of “internal self-determination,” granting national minorities the right to territorial autonomy. Such a norm has been included in recent declarations on indigenous rights (for example, in the U.N.’s Draft Declaration on the Rights of Indigenous Peoples). Moreover, most Western democracies have accepted the need for territorial autonomy to accommodate their national minorities—for example, Catalonia, the Basque provinces, Scotland, Wales, Flanders, South Tyrol, Aland Islands, Quebec, Puerto Rico—and this seems to be working well.
However, many European countries were unwilling to accept a principle of national minority self-government. For many states, particularly in Eastern Europe, acknowledging the “national” dimension of a minority's identity raises the spectre of secession or irredentism, and jeopardizes the right of the state to speak for, and to govern, all of its citizens and territory. As a result, the few tentative proposals for incorporating a norm of internal self-determination—including a proposal by the Parliamentary Assembly of the Council of Europe in 1993—were quickly quashed.
In short, the "right to enjoy one’s own culture" is too weak to address the issues underlying ethnonational conflicts, and the right to "internal self-determination" is too strong to be accepted by most states. Is there any way out of this deadlock? Some commentators have suggested that the right to "effective participation" might provide the key. This idea, which is also part of OSCE and Council of Europe norms, may provide a basis for addressing the political dimensions of ethnonational conflicts without embracing the controversial idea of internal self-determination. The hope is that states and minorities would be more likely to resolve their competing claims relating to territory and autonomy if they framed them in the language of effective participation, rather than nationhood and national self-government. In my view, this only defers, rather than genuinely addresses, the underlying conflicts, but it is at the moment the only hope for developing more effective norms. Time will tell whether it will fare any better.