Minority Recognition and the Diversity Deficit: Comparative Perspectives 9781509953073, 9781509953103, 9781509953097

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MINORITY RECOGNITION AND THE DIVERSITY DEFICIT This book addresses one of the most serious societal questions of our time: how to create new spaces and frameworks for minority recognition given the State-centric sovereignty discourse and the persisting equality jargon that dominate today’s world. By so doing it approaches minority rights by means of a critical engagement with its underlying premises. Notably, it makes attempts to both construct and reconfigure neglected legal categories, in particular, collective rights, and to deconstruct domestic constitutional orders. More precisely, it does so through diametrically opposed levels of analysis, that is top-down and bottom-up logics, by exploring sociolegal strategies, forms and formats of governance on the one hand, and grassroots demands on the other. Drawing on empirical findings in Europe and Latin America, the book gives us a sense of how recognition needs to be contextualised against the background of rightwing trends in Europe and the re-building of the State in the Andes. This is a fascinating study of one of the key questions engaging human rights, minority studies and discrimination law.

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Minority Recognition and the Diversity Deficit Comparative Perspectives

Edited by

Jessika Eichler and

Kyriaki Topidi

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © The editors and contributors severally 2022 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022940333 ISBN: HB: 978-1-50995-307-3 ePDF: 978-1-50995-309-7 ePub: 978-1-50995-308-0 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Foreword

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he status of minorities around the world and their protection raise issues that are not only numerous and complex but remain highly topical in light of today’s rampant globalisation. The two researchers who took the initiative for this collective publication set the bar high: they speak of a ‘diversity deficit’. Although there is no shortage of literature that examines the different ways in which states deal with demands for recognition by minority communities living within their borders, what this book adds to existing scholarship is to offer the reader a very interesting sample of analyses that, taken together, provide a rich and diversified look at the broad topic of the treatment by various states, in their domestic law, of minority communities living within their borders and therefore falling within their jurisdiction. The policies put in place to ensure that minority communities receive a degree of formal recognition in the law of the country where they reside diverge very widely, from solid self-determination in a few cases, through mere lip service in others, to respect for collective rights in a vast number of cases. By adopting the concept of ‘deficit’ for the title of their book, the two editors of this volume have set the tone. They see serious reasons to be concerned about the way in which, generally speaking, states keep treating their minorities, despite all the promises made in international law. Many are reluctant to make the effort required to set up a policy of genuine trust that would enable minority communities to feel that they are truly partners of the state, and not just perceived as a threat. This book stands out for the quality of the contributions, each written by authors who make it clear that they have perfect mastery of their subject and are thoroughly familiar with the specific context they are dealing with, something that is particularly important for the empirical chapters. Taken as a whole, the chapters prove the editors right: there is still a lot of work to be done if the aim is to put in place policies that would, in the spirit of the book, be more open to diversity and provide a sustainable legal framework for minority communities – and there are many of them – that would give them a sense of being recognised and integrated into the functioning of state institutions. In short, there is every good reason to remain particularly alert and critical regarding the legal status of minorities and their protection. The two editors have succeeded brilliantly in bringing together a number of outstanding experts on the topic. As we learn from the various contributions, in many cases there is still a chasm between the promises of the law and the reality on the ground; this in turn explains why state authorities often lack the necessary credibility to establish constructive cooperation with the communities

vi  Foreword concerned. This observation is not new, but it is all the more deplorable to see it confirmed, after so much investment during the past few decades in legal doctrine as well as on the part of progressive courts and tribunals. Books such as this one have a role to play in the debate, and this volume does so in a very convincing way. Marie-Claire Foblets Department of Law & Anthropology Max Planck Institute for Social Anthropology Halle, Germany

Preface

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Recognition and the Diversity Deficit: Comparative Perspectives conveys critical views on the current predominating equality paradigms that seem to persist in European constitutional scenarios. Cultural, ethnic, linguistic and religious minorities and indigenous peoples alike continuously face structural barriers when invoking group-specific and collective rights, their unheard demands for autonomy, self-determination and decision-making being emblematic of the adherence to state-centric orders, a persisting diversity deficit and the negation of legal pluralism. The authors draw on a wide panorama of empirical experience, combining insights from Europe and Latin America. This includes case study approaches in dealing with particular jurisdictions such as constitutional trends and governance strategies on the matter. Other studies in the book engage more closely with regional ius commune, yet others with international law in making sense of minority and indigenous rights in contemporary law, institutions and society – in theory and practice – commonly seen through the eyes of those affected by relevant policies, that is, the very rights-holders. In a first theoretical part, the volume strives to disentangle and deconstruct the underlying logics of the law, its very functioning, by deriving new paradigms of recognition. It approaches minority rights by theorising recognition from a critical perspective, shedding light on the (in)visibilising function of legal regimes, including inherent dangers such as essentialisation and lack of particularism. The chapters similarly examine the difficulties related to the articulation of difference and dealing with inequalities. At the same time, the authors see much merit in the law as a channelling tool for recognising difference with the gradual rise of collective rights as important procedural venues for rights to enter the jurisprudential realm and as a sui generis regime in its own regard. In a second empirical part, the authors largely build on minority rights practice, both in a case study fashion and by way of tracing relevant developments comparatively across minority experience in Europe from a governance perspective. The section strives to provide insights on top-down and bottom-up approaches on pluralism and the multiplicity of paradigms of recognition. While some authors critically examine minority governance as promoted through assimilating, unifying (France), at times right-wing ideologies (Hungary), others examine the role of religious communities in particular and their place in (presumably) multicultural frameworks across Europe. inority

viii  Preface The third part deals with the legal techniques of antidiscrimination law that inform minority orders today, notably by exploring sociolegal strategies and policies that prove particularly worthy of being studied more closely from the viewpoint of those suffering detrimental impacts. Indeed, minority orders may be viewed as closed systems, as frameworks in their own terms only, rather than as a transverse task that ought to be considered and mainstreamed across any policy sector of relevance to minority communities. This may concern ‘generic human rights law’ including freedom of speech or labour rights, proving largely silent on the particularities related to minorities and ultimately their dedicated rights, as clearly shown by the authors. The book takes its first step with Miodrag Jovanović’s ‘Making Social Groups Visible To and In Law – Essentialisation and Law’s Generality’, departing from a critical legal theoretical angle on existing categorisations, placing particular emphasis on social groups in a minority sense. Jovanović engages with what he considers the unfortunate consequences of making social groups visible in law, including essentialisation and the generalisation charge. The chapter certainly also brings us back to the foundations of law, re-examining the rationale of legal status, ideals of justice, judicialisation processes that build on cultural and identity questions and related demands such as those expressed by linguistic minorities. All in all, Jovanović makes a successful attempt at deconstructing the law, in uncovering its visualising and disguising effects on minority rights protection. Sérgio Costa similarly draws on the theoretical underpinnings of the law, finding its roots in social and political theory in accompanying the quilombolas, Black communities, in their long-lasting struggles for social rights, land in particular. In ‘Politicizing Differences, Fighting Inequalities: Quilombolas in Brazil’, Costa interprets cultural reidentifications as a political articulation of difference(s) and inequalities and develops an analytical framework according to which differences represent positionalities or sites of enunciation within hierarchical social relations, the recent mobilisation of quilombolas in Brazil being illustrative of such articulation. The chapter raises and returns to questions of a transverse nature for us such as ‘when do differences become politically relevant?’ or ‘how do inequalities and differences correlate?’ A third theoretical attempt is made by Jessika Eichler in ‘Collectivising Human Rights or “Scales of Collectivisation”: Andean Constitutionalism and other Juridical Points of Departure’, an appreciation of how collective rights have found their way into the multilayered landscape of legal orders and international human rights frameworks in particular. Of concern are procedural debates with a focus on standing as well as different forms of collectivisation which concern indigenous peoples and minorities alike, by way of a comparative analysis. The chapter thereby proposes to measure the effectiveness of such forms, it establishes scales while uncovering the inherent potential in setting progressive standards. In that sense, collective rights may be understood as a

Preface   ix prospective sui generis order without losing sight of regressive developments in the field. The empirical part of the volume initiates with two case studies that give us a sense of the contemporary difficulties associated with state-centric orders as these shape minority governance. Catherine Wihtol de Wenden explores questions of recognition as they arise in France, both historically and by relating minority governance to other European experiments. In ‘Why Do the Old-Established States Fail to Recognise Minorities? Case Studies from France’, she offers a critical contextual account on multiculturalist policy paradigms and their aptitude in responding to religious, linguistic, cultural and ethnic minorities. Wihtol de Wenden explores the historical roots of the centralising, unifying and assimilating state in Europe, paying due consideration to colonial background and the importance of migration in shaping multiculturalist debates. Another case study account on domestic minority governance is presented in ‘Participation of Minorities in Public Life – The Political Background and Dominant Role of Minority Self-governments in Hungary’. Balázs Vizi explores group rights through the lenses of ‘national minority’ policies in Hungary, building on a contentious context of effective participation, cultural autonomy and minority self-governance. Vizi examines minority rights starting from the early 1990s as these started arising in Hungary and Central and Eastern European states. The chapter provides a rich account on the technicalities of representation without ignoring the international and European legal frameworks. The section concludes with two chapters on religious minority governance in European contexts and its broader implications on multicultural frameworks, secularism and the multiplicities of pluralism. Kyriaki Topidi introduces relevant typologies as these emerge in the state framework of minority recognition, placing particular emphasis on the educational sector. The chapter ‘State Recognition and Religious Minority Group Agency in a European Context’ is written from a top-down perspective, discussing the implications for states of religious minority faiths reimagining their agency and their functioning in European multicultural contexts. The role of the state is used as a starting point to grasp its entanglement with religious minority agency, broader issues of state recognition and its response to the changing sociolegal conditions surrounding minority claims. Following a similar scope of analysis, Eugenia Relaño Pastor provides an in-depth account of religious diversity in the multiculturalist frame, shedding light on its theoretical weakness and a possible postmulticulturalist turn. In ‘Is Multiculturalism a Satisfactory Framework to Address Religious Diversity?’, Relaño Pastor approaches cultural diversity models by returning to basic principles and categories, including otherness, difference, citizenship and identities. The chapter adopts a bottom-up reading of contemporary religious identity, also by relating to neighbouring human rights debates such as conflicts of rights and underlying questions of legal recognition: it proposes a middle ground between

x  Preface rights applicable to all and specific minority rights, hence allowing us to revisit standard-setting and the virtuous effects of multiculturalisation. The third part of the volume takes up the issue of other (conflicting) human rights that may serve as a forum for minority rights to find expression, placing a focus on sociolegal strategies. In ‘Freedom of Expression Revisited: Limiting Free Speech to Stop Silencing Women and Vulnerable Minorities’, Mia Caielli explores recent developments on hate speech as a pervasive strategy to confront the ongoing process of exclusion of women and ethnic, religious and sexual minorities. The chapter addresses the particular challenges coming with, inter alia, the current digital turn and its perpetuation of the subordination of minorities, hampering the effectiveness of existing antidiscrimination law. Caielli similarly discusses relevant broader implications of the criminalisation of hate speech, including minority groups’ position in public life on the basis of constitutional analysis and pertinent developments in European institutionalism and Latin American frameworks, eventually exploring the possibilities for remedying deficiencies in minority recognition and an effective pluralisation. Finally, Ceren Kasım further engages with antidiscrimination law, providing a critical in-depth perspective on the ramifications of equality principles in the context of labour law and dismissal protection law in particular. In ‘Building Bridges Between Dismissal Protection and Non-discrimination Law: Reopening the Debate on Equality Principles and Social Groups’, Kasım appreciates the specific disadvantages for social groups in the context of equality and justice paradigms, taking account of different power positions and their shaping role on unfair dismissal. By basing herself on the technicalities of the law, including the (im)material existence of the worker, enforcement of contract and related safeguards, she conveys a group-sensitive view of antidiscrimination law and its underlying principles. Felipe González Morales United Nations Special Rapporteur on the Human Rights of Migrants Professor of Public International Law at Diego Portales University

Contents Foreword�������������������������������������������������������������������������������������������������������v Marie-Claire Foblets Preface���������������������������������������������������������������������������������������������������������vii Felipe González Morales List of Contributors�������������������������������������������������������������������������������������xv 1. Introductory Remarks: Minority Recognition and its Transformative Potential – Critically Engaging with the Diversity Deficit��������������������������1 Jessika Eichler and Kyriaki Topidi 1. 2. 3. 4. 5.

The Book in a Nutshell: A Shifting Approach In/To Minority Studies..................................................................... 3 Top-Down Approaches in and by the Law: Minority Group Recognition and Legal Categories.................................................... 4 Minority Governance from below: Autonomy, Self-governance, Civil Society and Indigenous Movements as Ingredients of Societal Transformation......................................... 7 Disentangling Recognition and (De-)Classifying Minorities: Responses from Diversity Governance.............................................10 Ways Forward in the Never-Ending Struggle for Minority Recognition: Attempts to Bypass the Status Quo.............................13 PART I THEORISING RECOGNITION: (DE)CONSTRUCTING MINORITIES IN THE LAW AND ELSEWHERE

2. Making Social Groups Visible to and in Law – Essentialisation and Law’s Generality���������������������������������������������������������������������������������������������21 Miodrag Jovanović 1. Introduction...................................................................................21 2. Social Groups in the Legal Landscape: Terminological and Conceptual Clarifications.........................................................23 3. The ‘Essentialisation’ Charge..........................................................27 4. Essentialisation and Law’s Generality..............................................29 5. Instead of Conclusion: Is There a Way Out?....................................32

xii  Contents 3. Politicising Differences, Fighting Inequalities: Quilombolas in Brazil�������������������������������������������������������������������������������������������������35 Sergio Costa 1. Introduction...................................................................................35 2. Recognition–Redistribution, Categorical Inequalities, Vertical and Horizontal Inequalities................................................37 3. Articulating Differences and Inequalities.........................................41 4. The Quilombola Articulation.........................................................43 5. Conclusions....................................................................................50 4. Collectivising Human Rights or Scales of Collectivisation: Andean Constitutionalism and other Juridical Points of Departure���������������������53 Jessika Eichler 1. 2. 3. 4. 5.

Forums of Categorisation: The Judicialisation of Collective Rights in the Multiscale World of Legal Orders...............................56 Collectivisation Through Supranational Judicial Dialogue or as its Manifestation....................................................................59 Vindicating Collective Rights: Standing as a Debate in its Own Terms................................................................................63 Collectivisation Compared: Establishing Scales, Developing Indicators – Towards a Genuine Sui Generis Order?.........................68 Closing Remarks............................................................................72 PART II PLURALISM FROM THE TOP AND BELOW: THE MULTIPLICITY OF PARADIGMS OF RECOGNITION

5. Why Do the Old-Established Nation States Fail to Recognise Minorities? Case Studies from France�����������������������������������������������������������������������77 Catherine Wihtol de Wenden 1. Introduction...................................................................................77 2. But What About Constitutions?......................................................78 3. Minorities, Nations and States in Europe........................................80 4. The French Case.............................................................................81 5. Can We See Some Forms of Multiculturalism in France? A Historical Account......................................................................85 6. Conclusion.....................................................................................88

Contents  xiii 6. Participation of Minorities in Public Life: The Political Background and Central Role of Minority Self-governments in Hungary��������������������������91 Balázs Vizi 1. Introduction...................................................................................91 2. Minority Rights, Effective Participation and Cultural Autonomy – International Standards...............................................92 3. Minority Self-governments in Hungary as a Form of Political Representation................................................................................96 4. A Changing Constitutional Paradigm after 2011..............................99 5. Recognition and Representation....................................................104 6. Electoral Legitimacy.....................................................................107 7. Nationality Self-governments and Parliamentary Representation..............................................................................109 8. Conclusions..................................................................................112 7. State Recognition and Religious Minority Group Agency in a European Context������������������������������������������������������������������������������� 115 Kyriaki Topidi 1. Introduction.................................................................................115 2. Pluralising Religious Minority Identity through State Recognition: Some Theoretical and Conceptual Underpinnings.........................118 3. The Link between the Agency of Minority Religious Actors with State Recognition..........................................................................120 4. The Evolution of the Role of the State in Shaping the Future of Religious Diversity........................................................................124 5. Religious Minority Recognition within State-Supported Education: A Brief Policy Example................................................127 6. Concluding Remarks....................................................................131 8. Is Multiculturalism a Satisfactory Framework to Address Religious Diversity?�������������������������������������������������������������������������������������������� 135 Eugenia Relaño Pastor 1. Introduction.................................................................................135 2. Why Should We Protect Religious Diversity?..................................137 3. The Rhetoric Death of Multiculturalism.......................................148 4. A Postmulticulturalism Human Rights Model: Everyday Religious Superdiversity.................................................152

xiv  Contents PART III MINORITY RECOGNITION IN SOCIOLEGAL STRATEGIES AND FRAMEWORKS 9. Freedom of Expression Revisited: Limiting Free Speech to Stop Silencing Women and Vulnerable Minorities������������������������������������������������������� 159 Mia Caielli 1. Introduction.................................................................................159 2. Hate Speech and the Risk of Elitist Democracies...........................163 3. Against Originalism in Constitutional Interpretation: Freedom of Expression in the Twenty-first Century...............................................................166 4. Concluding Remarks....................................................................171 10. Building Bridges between Dismissal Protection and Non-discrimination Law: Reopening the Debate on Equality Principles and Social Groups������������������������������������������������������������������������������������������������ 173 Ceren Kasım 1. 2. 3.

Antidiscrimination Law and Societal Transformation....................177 Dismissal Protection Law as a Tool of Social Justice......................184 Antidiscrimination Law versus Dismissal Protection Law...............191

Index��������������������������������������������������������������������������������������������������������� 193

List of Contributors Mia Caielli, Associate Professor (Comparative Public Law), Faculty of Law, Università degli Studi di Torino. Sérgio Costa, Professor (Sociology) and Director of the Latin American Institute, Free University of Berlin. Jessika Eichler, Postdoctoral Affiliate (Law/Social Sciences), Law & Anthropology Department, Max Planck Institute; Sciences Po Paris; trAndeS, FU Berlin. Miodrag Jovanović, Professor at the Faculty of Law (Legal Theory), University of Belgrade. Ceren Kasım, PhD graduate (Law), Georg-August-Universität Göttingen. Eugenia Relaño Pastor, Professor (Law/Political Science/Sociology), Universidad Complutense de Madrid. Kyriaki Topidi, Head of Cluster on Culture and Diversity/Senior Researcher (Law and Religious Studies), European Centre for Minority Issues (Flensburg/ Germany). Balázs Vizi, Research Professor (Social Sciences/Law) at the Institute for Minority Studies, Centre for Social Sciences, Hungarian Academy of Sciences. Catherine Wihtol de Wenden, Director of Research (Political Science) at CNRS and the Centre for International Studies/Sciences Po, Paris.

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1 Introductory Remarks: Minority Recognition and its Transformative Potential – Critically Engaging with the Diversity Deficit JESSIKA EICHLER AND KYRIAKI TOPIDI

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his volume attempts to address what we may critically term a ‘diversity deficit’ from a sociolegal perspective. While we do not intend to devaluate the virtuous functionalities of constitutional law in principle, as an indispensable tool to scrutinise legislation for compliance with fundamental rights standards, we, however, feel the need to appreciate its ‘invisibilising’ side effects. Human rights ‘made in Europe’, commencing with the embracement of the Déclaration des Droits de l’Homme et du Citoyen in 1789, have long served as a suitable method to combat the societal ills and institutional illegitimacies that worry humankind. However, balance-of-powers questions that would arise among the judiciary and the legislative branch as well as the societal challenges related to totalitarian rule, no longer represent Europe’s key concern in such absolute terms. While setting the ground rules for democratic governance, constitutional frameworks have failed to engage more closely with a Rawlsian ‘veil of ignorance’ that empathises with unequal positions among those governed, one of the most critical issues of our times. In that sense, we attempt to shed light on the invisibilising functions of constitutionalism by critically examining, inter alia, its equality framework(s), the classical idea of state sovereignty in its exclusionary vision, and, relatedly, the integrationist foundations upon which it was built. Nor should we forget about the homogenising forces of constitutionalism that prove ignorant of societies’ pluralistic outlook at best, or show rights infringing at worst, if we are to take minorities’ legitimate demands for recognition seriously. Conversely, much potential is to be seen in legal responses such as legal codes, jurisprudence developed by competent mechanisms and interaction among the courts. Indeed, we strive to uncover the transformative potential undergirding and

2  Jessika Eichler and Kyriaki Topidi inherent to legal action1 while not ignoring other important scrutinising measures such as those taken by civil society.2 The twenty-first century has witnessed the re-emergence of large-scale social mobilisation, with a multiplication of public actors and entities, emblematic being the Arab Spring, the Euromaidan, the Belarusian protests or mass mobilisation in Latin America.3 Arguably, these societal transformations have not proven very successful in channelling fragmented societal voices or marginalised sectors of society into the public sphere of attention, divulgation, governance or scrutiny. However, despite the harmonising dangers of mass mobilisation that may conceal plural demands, the Latin American experience4 demonstrably reveals considerable reinforcing potential lying in unifying demands that do not – in themselves – necessarily coincide at first sight, their anti-regime, anti-elite or anti-status-quo attitude excepted. Emblematic of this experience are the cocalero-indigenous MAS in Bolivia5 and similar left(ist) strands in neighbouring Ecuador6 finding articulation in the public space at around the same time (2006–2009), or current movements in Chile,7 and Colombia8 to some extent, which have succeeded in blending 1 See generally, legal anthropological accounts that deconstruct the law and its functions, and critically engage with judicialisation processes: eg F von Benda-Beckmann, K von Beckmann and A Griffith (eds), The Power of Law in a Transnational World: Anthropological Enquiries (Oxford, Berghahn Books, 2012); J Gaventa, Power and Powerlessness: Quiescence and Rebellion in an Apalachian Valley (Chicago, University of Illinois Press, 1980); J Comaroff and JL Comaroff, Law and Disorder in the Postcolony (Chicago, Chicago University Press, 2008); T Risse, SC Ropp and K Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge, Cambridge University Press, 2013). 2 See generally, transnational law approaches, giving voice to social movements and other civil society actors exerting influence on the drafting, negotiation and implementation of the law: eg C Lennox, Transnational Social Mobilisation and Minority Rights: Identity, Advocacy and Norms (Abingdon, Routledge, 2019). 3 M-C Doran, ‘The Hidden Face of Violence in Latin America: Assessing the Criminalization of Protest in Comparative Perspective’ (2017) 216 Latin American Perspectives 44, 5; K Sehnbruch and S Donoso, ‘Social Protests in Chile: Inequalities and other Inconvenient Truths about Latin America’s Poster Child’ (2020) 11 Global Labour Journal 1; S Perz, ‘Social Mobilization in Protest of Trans-boundary Highway Projects: Explaining Contrasting Implementation Outcomes’ (2012) 43 Development and Chance 3; E Lanza, ‘Protest and Human Rights: Standards on the Rights Involved in Social Protest and the Obligations to Guide the Response of the State’ (2019) Inter-American Commission on Human Rights. Office of the Special Rapporteur for Freedom of Expression. 4 DL Van Cott, From Movements to Parties in Latin America: The Evolution of Ethnic Politics (New York, Cambridge University Press, 2005); F Barrios-Sulveza, ‘El Control Contramayoritario como Marco de Análisis de la Influencia del Nuevo Constitucionalismo Latinoamericano sobre la Democracia’ (2018) 37 Revista Española de Ciencia Política. 5 N Postero, The Indigenous State: Race, Politics, and Performance in Plurinational Bolivia (Oakland, University of California Press, 2017). 6 DJ Yashar, ‘The Left and Citizenship Rights’ in S Levitsky and KM Roberts (eds), The Resurgence of the Latin American Left (Baltimore, MD, Johns Hopkins University Press, 2011). 7 M Folchi (ed), Chile Despertó: Lecturas desde la Historia del Estallido Social de Octubre (Santiago de Chile, Universidad de Chile, 2019). 8 Observatorio de los Derechos de los Pueblos Indígenas y Campesinos, ‘El Rol de los Movimientos Campesinos e Indígenas en el Paro Nacional de Colombia’ (2021) www.soc.unicen .edu.ar/observatorio/index.php/22-articulos/190-el-rol-de-los-movimientos-campesinos-e-indigenas-en-el-paro-nacional-de-colombia; AC Velasco Muñoz, ‘Represión Estatal y Repertorios de Acción Colectiva: Movimiento Social del “Paro Nacional”, Bogotá 2019–2020’ (2020) 13 Cuadernos de Ciencias Jurídicas y Política Internacional 2.

Introductory Remarks  3 social justice issues and persistent questions of discrimination, inequalities and vulnerabilities that have affected indigenous peoples ever since the colonial era. More broadly, these developments might be largely seen as a successful response to, and in light of, the quasi-authoritarian governance of Bolsonaro in Brazil, Piñera in Chile or Keiko Fujimori in Peru, including dysfunctional judicial checks,9 rendering active popular control a necessary method for several reasons. The populations of these states have demonstrably been transforming the social fabric that at first sight appears powerless vis-a-vis an ever-growing state apparatus, what we may term ‘un-rule of law’, and democratic ignorance in the most literal sense, resulting in the state failing to derive legitimacy from its constituent people and peoples. 1.  THE BOOK IN A NUTSHELL: A SHIFTING APPROACH IN/TO MINORITY STUDIES

Drawing on empirical findings in Europe and Latin America, this collection also strives to derive theoretical conclusions by way of translating grassroots demands into policy paradigms, constitutional amalgams, sociolegal strategies and eventually new frameworks of recognition. Similarly, the book develops comparative dimensions, by tracing progressive constitutionalism(s) in Latin America while contrasting these with conservative equality frameworks to be found in, for instance, European constitutional landscapes. Starting from a different normative standpoint and building on the ‘right to be different’, the book carries a four-fold ambition: first, it attempts to depart from empirical realities while not sidelining existing case-law and implementation issues. Heavily inspired by on-the-ground developments, the book also attempts to reach theoretical insights which either depart from case-based analysis or build significantly on legal frameworks and social theory, including their specific focus on non-discrimination issues. Second, the book adds to existing work on the recognition of minority groups10 but does not intend to provide a purely theoretical account. The study of recognition, including but not limited

9 Also consider processes of judicialisation in the region, taking place in response to twentiethcentury developments, military regimes and their detrimental impact on institutions and society: A von Bogdandy, E Ferrer Mac-Gregor, M Morales Antoniazzi and F Piovesan (eds), Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford, Oxford University Press, 2013). 10 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1996); W Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford, Oxford University Press, 2013); J Tully, Public Philosophy in a New Key, vol. I: Democracy and Civic Freedom (Cambridge, Cambridge University Press, 2008); C Taylor, Multiculturalism (Princeton, Princeton University Press, 1994); N Fraser and A Honneth, Redistribution or Recognition? A Political Philosophical Exchange (London and New York, Verso, 2004); S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, Princeton University Press, 2002).

4  Jessika Eichler and Kyriaki Topidi to self-determination and autonomy, is still developing within minority studies. Third, the volume assumes cross-regional, comparative dimensions by way of a distinguished engagement with constitutional and other legal developments in Europe and Latin America, both domestically and as far as regional constitutionalism is concerned. Finally, the accounts presented are based on interdisciplinary approaches to minority rights, opening up the debates to broader law and society issues, sociopolitical approaches on recognition, institutional dimensions, grassroots and rights-holder perspectives and critical engagement with the law. This allows contributions to this collection to move beyond narrow grounds of discrimination to understand more holistically the concepts of minority-specific disadvantage while connecting to broader processes of recognition. 2.  TOP-DOWN APPROACHES IN AND BY THE LAW: MINORITY GROUP RECOGNITION AND LEGAL CATEGORIES

Minority protection has long been associated with legal frameworks at both domestic and supranational levels. While frequently enunciated with calculated restraint, norms are clearly designed to allow the groups in question to p ­ ractise, develop or maintain their culture. At the same time and as fundamentally, however, minority issues in the everyday world are still concerned with processes of ‘othering’, of structural discrimination and systemic inequalities.11 Ethnocultural minority groups, of central concern to this volume, have followed the well-traced paths of human rights developments in the post-Second World War era towards recognition and protection of their fundamental rights and dignity. Framed largely as ‘guarantees’ against abuses of power by states, minority status has come with dedicated minority rights, the former being a notoriously difficult concept to define in legal terms. This regime can be characterised by its emphasis on the individual rights of persons, with the underlying normative aim of the ‘maximization of freedom’12 alongside the long-established demands for self-identification and autonomies. Within this frame and aim, the right to self-identification of minority groups was rather limitedly applied and essentially addressed to the process of verification by or dispute with state authorities. Today, however, such focus of minority protection on the individual is being challenged.13 Social justice achieved either through economic

11 B de Gaay Fortman, Minority Rights: A Major Misconception?’ (2011) 33 Human Rights Quarterly 265–303, 279. 12 E Craig, ‘Who Are the Minorities? The Role of the Right to Self-identity within the European Minority Rights Framework’ (2016) 15(2) Journal on Ethnopolitics and Minority Issues in Europe 6–30, 8. 13 See the UN Human Rights Committee General Comment 23 – Rights of Minorities, 1994 on the broad meaning of culture that includes elements of group rights, especially those that ‘depend in turn on the ability of the minority group to maintain its culture, language or religion’ (para 6.2).

Introductory Remarks  5 or social participation is tightly linked to cultural differences14 in a collective sense. In fact, minority rights remain as relevant as ever as ‘instruments for the distribution of resources; a basis for identity; … and a social vision of society’.15 The question of who decides whether a minority exists in the first place, and the implications of such a decision, is likely to yield various normative responses. The Organization for Security and Co-operation in Europe (OSCE) Ljubljana Guidelines on Integration of Diverse Societies state that: ‘[I]dentities are subject to the primacy of individual choice through the principle of voluntary self-identification, which legal and policy frameworks should acknowledge and allow for.’16 Article 3 of the Framework Convention for the Protection of National Minorities (FCNM), on the other hand, affords more discretion to states to decide on the recognition of such groups, hence limiting the scope and significance of minority members’ right to self-identify.17 In opposition to the FCNM track, Article 1(2) of ILO Convention No 169 on Indigenous and Tribal Peoples (1989) stipulates that: ‘[S]elf-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.’ The UN Declaration on the Rights of Indigenous Peoples takes this further by not only establishing a right to belong to an indigenous community or nation, or to determine their own identity or membership in accordance with collective customs and traditions (Articles 9 and 33), but also for indigenous communities to determine responsibilities for their members and to select membership of their institutions (Articles 33 and 35).18 Thus, the role of choice in determining one’s identity, along with the twofold plurality – individual alongside group affiliation – that such identity entails are not always understood, let alone accepted by states, in the minority context in particular. Especially in the European context, states continue to

14 Y Ghai, ‘Globalization, Multiculturalism and Law’ in B. De Sousa Santos (ed), Another Knowledge Is Possible: Beyond Northern Epistemologies (London, Verso, 2007) 383–416, 396. 15 ibid 401. 16 OSCE, The Ljubljana Guidelines on Integration of Diverse Societies, November 2012, in particular principles 5 and 6, available at www.osce.org/hcnm/ljubljana-guidelines (last accessed 18 March 2022). 17 Craig (n 12) 15 and Explanatory Report on the FCNM (Strasbourg, Council of Europe Publishing, 1995) available at https://rm.coe.int/16800c10cf (last accessed 18 March 2022). Paragraph 35 of the Explanatory Report ambiguously stipulates: ‘This paragraph does not imply a right for an individual to choose arbitrarily to belong to any national minority. The individual’s subjective choice is inseparably linked to objective criteria relevant to the person’s identity.’ 18 See also Kirsty Gover’s work, eg K Gover, Tribal Constitutionalism: States, Tribes and the Governance of Membership (Oxford, Oxford University Press, 2011); ‘Article 33’ in J Eichler, C Doyle and S Howard (eds), The UN Declaration on the Rights of Indigenous Peoples: Articleby-Article Commentary (Beck, Hart, Nomos, forthcoming); and S Imai and K Gunn, ‘Indigenous Belonging: Membership and Identity in the UNDRIP: Articles 9, 33, 35, and 36’ in J Hohmann and M Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford, Oxford University Press, 2018) ch 8.

6  Jessika Eichler and Kyriaki Topidi retain a prominent role in promoting and protecting specific minority groups, notably ‘national minorities’ and their identities.19 Two levels of ambiguity and respective assumptions are particularly noticeable in the consideration of minority identity-related claims: first, states operate under the ‘illusion of a unique and choiceless identity’20 that minority group members allegedly have; and second, states retain a perception of minority rights – somehow unsurprisingly – attached to the (very worthwhile) ‘taming of nationalism’ as a sole political purpose, hence ignoring the multiplicity of minority claims.21 Through processes of standard-setting, monitoring of state compliance and in some cases enforcement, international mechanisms for minority protection have thus been placing the state at the centre of the struggle for specific safeguards and recognition of minorities. In practice, these normative frameworks, however, have been neglecting the economic, social and cultural environments in which minority-related rights were being implemented.22 Competition for limited, often state-distributed resources without the minority’s share; the multiplication of actors active in claims-making towards minority recognition, for instance through transnational networks; and continuous political-economic transformations accompanying recognition processes are only some of the factors that minority legal frameworks have not considered systematically.23 In other words, the legal status of minorities and their group members has been the sole focus of attention for too long, thereby side-tracking from their longer-term collective demands, including but not limited to self-determination and autonomy claims, access to land for a great number of indigenous communities, or natural resource issues. However, by shifting the focus of (legal) protection and policy responses to categorisations beyond numerical thresholds, and instead including vulnerability as a determining criterion, the demands of such groups may be captured in a more holistic way, although at the cost of creating an ‘open-ended’, almost infinite, process of judicialising the very protection of collective subjects, ultimately at the will of the state(s).

19 See also Dimitry Kochenov’s work, eg D Kochenov, ‘The European Union’s Troublesome Minority Protection: A Bird’s-Eye-View’ in J Boulden and W Kymlicka (eds), International Approaches to Governing Ethnic Diversity (Oxford, Oxford University Press, 2015) 20 A Sen, Identity and Violence: The Illusion of Destiny (London, Penguin Books, 2007) xv. 21 Craig (n 12) 19 cites the example of the FCNM’s focus on national minorities as a matter of political compromise and against the ‘increasing influence of cosmopolitan ideas and globalisation’. 22 For examples relating to the case of Roma in Europe, see indicatively I Rostas, A Task for Sisyphus: Why Europe’s Roma Policies Fail (Budapest, Central European University Press, 2019); M Matache, ‘Biased Elites, Unfit Policies: Reflections on the Lacunae of Roma Integration Strategies’ (2017) 25(4) European Review 588–607. 23 De Gaay Fortman (n 11) 294.

Introductory Remarks  7 3.  MINORITY GOVERNANCE FROM BELOW: AUTONOMY, SELF-GOVERNANCE, CIVIL SOCIETY AND INDIGENOUS MOVEMENTS AS INGREDIENTS OF SOCIETAL TRANSFORMATION

In the spirit of adding a positive note to these reflections, let us consider progressive developments in yet another region, namely Latin America and Andean states in particular. Without underestimating the virtually universal adherence to state sovereignty and a somewhat exclusive understanding of territory or land ownership as falling under the state’s powers of administration, these classical Western concepts have undergone some softening in a region where indigenous peoples have been able to exert a shaping political influence. This may manifest itself in the form of powerful movements at domestic (eg CIDOB, CONAIE, ONIC)24 and regional levels (eg COICA),25 eventually also finding reflection in party politics (eg, the ruling MAS in Bolivia).26 Indeed, Andean states could be considered front-runners in the region and examples par excellence of what is commonly referred to as ‘new Latin American ius commune’ or ‘transformative constitutionalism’.27 This is the case especially in comparative terms, owing to inter alia decolonisation processes, thereby reforming the law and rebuilding the state; the embracement of plurinationalism as a novel constitutional paradigm;28 a politics of difference permeating the state and its organs; and finally, the recognition of indigenous law(s),29 institutions, (cultural) identities, cosmovisions, ancestral lands, livelihoods and sources of subsistence. We may distinguish between two key political moments in that regard. The first begins with the Marches for Territory and Dignity led by indigenous organisations across Bolivia in the 1990s, culminating in a constitutional reform process30 that eventually led to the adoption of a plurinational constitution (2009) alongside that of Ecuador (2008), following a period of ‘multicultural

24 CIDOB, Confederación de Pueblos Indígenas de Bolivia (Confederation of the Indigenous Peoples of Bolivia); CONAIE, Confederación de Nacionalidades Indígenas del Ecuador (Confederation of Indigenous Nationalities of Ecuador); ONIC, Organización Nacional Indígena de Colombia (National Indigenous Organisation of Colombia) 25 COICA, Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica (Coordinator of Indigenous Organisations in the Amazon River Basin) 26 MAS, Movimiento al Socialismo Bolivia. 27 Von Bogdandy et al (n 9). R Uprimny, ‘The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges’ (2011) 89(7) Texas Law Review 1587. 28 See Bolivian and Ecuadorian constitutionalism in particular 29 Indigenous law(s) and its position vis-a-vis state law is commonly examined by legal pluralistic accounts, often legal anthropology; see accounts engaging with the spaces of encounter of the two sources and systems of law such as Boaventura de Sousa Santos’s work. 30 C Romero Bonifaz, ‘Bolivia: de la confrontación al pacto político’ in C Romero Bonifaz, C Böhrt Irahola and R Peñaranda (eds), Del Conflicto al Diálogo: Memorias del Acuerdo Constitucional (La Paz, Fundación Boliviana para la Democracia Multipartidaria y Fundación Friedrich EbertInstituto Latinoamericano de Investigaciones Sociales, 2009).

8  Jessika Eichler and Kyriaki Topidi constitutionalism’ (1982–1988) in Canada, Guatemala, Nicaragua and Brazil, and an era termed ‘pluricultural constitutionalism’ (1989–2005) in Colombia, Mexico, Paraguay, Peru, Bolivia, Argentina, Ecuador and Venezuela (1989–2005) following a systematised reading of constitutionalism in the region.31 As the main driving forces of these transformations, indigenous organisations demonstrably succeeded in reversing their position and relation with the state.32 Conversely, what we may, albeit hesitantly, understand as a new phase of indigenous recognition by the state has come to shine through the current constitutional reform process in Chile (2020–2021) and a recent governmental change in Peru (2021). Other than the pluricultural moment of 2008–2009, these processes represent a rather fragmented picture of social demands. While novel in terms of the transformation eventually taking shape in the cases at hand, social movements have commonly provided fertile grounds for indigenous demands to find accommodation. Similar to the Bolivian context, the newly elected president of Peru, Pedro Castillo, managed to fundamentally align rural forces, which themselves had integrated indigenous voices throughout the protests: in fact, indigenous movements had largely supported Castillo’s rural-left candidature, partly because of his positioning on territorial demands.33 Again, an amalgam of rural and indigenous identities had found common ground, mingled with leftist forces, mobilising against fraudulent attempts by Fujimori to win support following the Odebrecht bribe scandal. Comparable scenarios have come to shape post-Pinochetan constitutionalism in a context of similar leftist mobilisation against the Piñera government and its failure to deal with persisting inequalities in the pension system, the educational sector and accessibility of public transport.34 Indigenous movements formed part of the protests, introducing proper demands,35 rather subtly, while furnishing the demonstrations with indigenous symbolism and bringing proper attention to political persecution, other forms of criminalisation, arbitrary detention and due-process violations.36 31 R Yrigoyen Fajardo, ‘The Panorama of Pluralist Constitutionalism: From Multiculturalism to Decolonisation’ in C Rodríguez-Garavito (ed), Law and Society in Latin America: A New Map (Abingdon, Routledge, 2016). See also ME Góngora-Mera, ‘The Block of Constitutionality as the Doctrinal Pivot of a Ius Commune’ in von Bogdandy et al (n 9); R Gargarella, ‘Latin American Constitutionalism: Social Rights and the “Engine Room” of the Constitution’ in C RodríguezGaravito (ed), Law and Society in Latin America: A New Map (Abingdon, Routledge, 2016); LA Fajardo Sánchez, ‘El Constitucionalismo Andino y su Desarrollo en las Constituciones de Bolivia, Ecuador, Perú, Colombia y Venezuela’ (July–December 2017) no 47 Diálogos y Saberes. 32 Van Cott (n 4). 33 A Chirif, ‘Peru’s Elections: A Country in Search of its Identity’ (International Work Group for Indigenous Affairs, 2021) https://debatesindigenas.org/ENG/ns/103-perus-election.html 34 E Barozet, virtual conversation at ‘Chile rumbo a una nueva constitución política: desafíos y escenarios para el futuro’, trAndeS, LAI, Berlin, 3 December 2020. 35 V Espinoza, virtual conversation at ‘Chile rumbo a una nueva constitución política: desafíos y escenarios para el futuro’, trAndeS, LAI, Berlin, 3 December 2020. 36 J Eichler and P Barnier-Khawam, ‘Criminalization, Securitization and other Forms of Illegalizing Indigenous Contestations in Chile: Responses from Constitutional Law and Inter-American Jurisprudence on Mapuche People’s Rights’ (2022) 13 Journal of Human Rights Practice 2.

Introductory Remarks  9 The ‘indigenous component’ of the current constitutional reform process demonstrates at its finest how indigenous representation in the protest would eventually prove decisive in the process of defining rules and procedures governing the constituent assembly. This may include the appointment of an indigenous representative to preside over the Constituent Assembly (Convención Constitucional), especially regarding its symbolic significance, as well as a quota system to guarantee indigenous representation commensurate with the overall number of indigenous people on Chilean territory. While the first cautious attempts at making concessions may be significant as far as plurinational constitutionalism and collective rights are concerned, the active integration of these elements into the state’s machinery will hopefully be maintained in the actual constitution-making process. These two recent cases of indigenous representation in the state, exercised either through the state’s executive branch or through constitutional law itself, are illustrative of how other channels, social movements in particular, prove relevant, and ultimately impactful, in translating indigenous rights into the public sphere. Indeed, more attention is paid to indigenous grassroots voices37 in current social struggles due to progressive developments in neighbouring states, an ever-growing role of the Inter-American Court of Human Rights in ruling on indigenous rights,38 and certain international institution-building and monitoring action on the ground, undertaken by specialised mechanisms such as the Special Rapporteur on the Rights of Indigenous Peoples (SR), the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) and the Permanent Forum on Indigenous Issues (FPII). This may be the case where indigenous peoples do not constitute majorities, and therefore exert less leverage in society or institutionally speaking – in Peru and Chile, for example, indigenous peoples represent approximately 12 per cent of the population, whereas in Bolivia 48 per cent self-identify as indigenous. While fragmented in nature, mass mobilisations have proven key in accommodating demands under broader social struggles in the current Latin American scene; these could perfectly complement the ordinary – but no less valuable – indigenousmovement-steered quest for recognition – domestically, regionally and possibly globally.

37 Indigenous peoples very much build on movements and organised action all around the world, including at international level where milestones such as the UN Declaration on the Rights of Indigenous Peoples ultimately proved successful simply because these were backed up by strong indigenous alliances and a global movement, see eg C Charters and R Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen, IWGIA, 2012). 38 See the following cases in particular: Saramaka v Suriname and Sarayaku v Ecuador; also worthwhile to check: Lhaka Honhat v Argentina.

10  Jessika Eichler and Kyriaki Topidi 4.  DISENTANGLING RECOGNITION AND (DE-)CLASSIFYING MINORITIES: RESPONSES FROM DIVERSITY GOVERNANCE

The principles of justice, equal opportunities or fairness, to name a few, are at the basis of minority struggles for recognition. But as the post-Cold War era has shown, the rise of the ‘cultural paradigm’ – often replacing the racial one – that claims to legitimise discriminatory treatment of some groups on the basis of cultural differences and oppositional values questions the extent to which a legally framed pluralisation of rights lives up to social justice.39 In fact, as some of the contributions in this volume hint at, legal recognition does not preclude the persisting denial of social recognition of these groups and therefore the perpetuation of inequality – the Black Lives Matter movement being a well-debated illustration. Another failure may lie in the state’s recognition of minority groups as far as differences between groups are concerned. Taking the argument a step further, and in the words of Charles Taylor, ‘non-recognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being’.40 His argument suggests the importance of recognition by states: in fact, effective minority protection regimes can operate as challenges to domination and oppression. Beyond the strictly declaratory legal nature or symbolic recognition, minority studies, however, increasingly stress the need to consider the layers of socioeconomic injustice to which ethnocultural minority identity finds itself exposed.41 Further to that, an approach that resists legal minority recognition creates rupture (and distance) between the majority and minorities, damaging any existing legal, social and political links of interdependence between them. One of the main drivers behind minority recognition as it overlaps with self-determination is to pursue social, economic and cultural development. Denial of recognition of minority groups therefore lays the foundation for conflictual sociopolitical relations between majorities and minorities.42 Through denial(s) of recognition, minorities are placed in the position of having to seek opportunities for social mobilisation and collective action. Within such struggles, the legal dimension of 39 A very characteristic European example with rich scholarly literature is that of the Muslim religious minorities in Western Europe. Only indicatively on the cultural paradigm, see D Helly and J Dupre, ‘The Socio-political Context of Islamophobic Prejudices’ (2014) 2(2) Islamophobia Studies Journal 143–56; I Rommel, ‘Culturalism of Exclusion in an Established-Outsider-Figuration’ (2016) 41(3) Historical Social Research 175–93 as well as the relatively recent European Court of Human Rights cases SAS v France, ECtHR (2014) Series A, no 43835 and Osmanoglu and Kocabas v Switzerland (2017) Series A, no 29086 that operate in part on the argument of incompatibility of Islam with Western democratic values. 40 C Taylor, ‘The Politics of Recognition’ in A Gutmann (ed) Multiculturalism: Examining the Politics of Recognition (Princeton, Princeton University Press, 1994) 25. 41 See indicatively K Henrard (ed), The Interrelation between the Right to Identity of Minorities and their Socio-economic Participation (Leiden, Brill, 2013). 42 M Sanchez-Mazas, ‘Minority Influence and the Struggle for Recognition: Towards an Articulation between Social Influence Research and Theory of Recognition’ (2018) 31(1) International Review of Social Psychology 1–8, 1.

Introductory Remarks  11 recognition and its active dealing with social esteem and trust among groups43 (and vice versa) are additional factors to understand minority claim processes combining the dynamics of both recognition and self-determination. Our findings confirm that the supposed link between recognition and self-determination as it is specifically enshrined in European legal orders is neither necessarily in tune with aspirations and considerations of justice from a moral perspective nor with political agency and social mobilisations as political experiences.44 Legal arrangements, in Europe, do not therefore consistently reflect the evolution of society in terms of minority claims: the examples of hate speech online or the issue of the persisting ignorance of fluid sexual identities, or still in some cases the recognition of same-sex marriage, indicate such mismatch. The contributions to this volume also reveal an expanding use of arguments based on the alleged cultural incompatibility among groups in a given society. These lend themselves to establishing essentialist classifications and categorisations of groups, according to stereotypical and irretrievable criteria. In fact, and in part due to these kinds of classifications, entire sociopolitical experiments in diversity governance such as multiculturalism have been deemed as having failed from that perspective, despite the importance they gave to identities. New forms of prejudice and exclusion were quick to emerge, reminding entire societies that cultural distance among groups is here to stay. Racial prejudice, direct as well as indirect discrimination, and stigmatisation can seemingly operate independently from the existence of formal equal rights.45 The expanding avenues for the cultivation of multiple identities, in the light of globalisation dynamics and population movements, represent an important opportunity for states and their legal systems to ‘recognise’ minority groups and their members today. Kofi Annan has highlighted the implications of this multiplicity as follows: ‘States are now widely understood to be instruments at the service of their peoples, and not vice versa.’ Along the resulting expansion of rights for minorities,46 claims for minority group recognition have also expanded through the addition of more groups, labelled as ‘new’ minorities, and the claims related to these latter groups for states to consider.47 What remains a unique

43 Social esteem is usually reflected in the assessment of social trust among majority–minority groups. See eg R Wilkes and C Wu, ‘Trust and Minority Groups’ in EM Uslaner (ed), The Oxford Handbook of Social and Political Trust (Oxford, Oxford University Press, 2017), where the institutional and cultural effects of social trust are discussed, as entangled in shaping social esteem among ethnoracial minority and majority groups. 44 For a similar point, see RA Flak, ‘The Right to Self-determination under International Law: The Coherence of Doctrine versus the Incoherence of Experience’ in W Danspeckgruber and A Watts (eds), Self-determination and Self-administration (Boulder, CO, Lynne Rienner, 1997) 41–78, 42. 45 Sanchez-Mazas (n 42) 4. 46 See the UN Declaration on the Rights of People Belonging to National, Ethnic, Religious and Linguistic Minorities (1992); the Framework Convention for the Protection of National Minorities of the Council of Europe (1995); or the UN Declaration on the Rights of Indigenous People (2007). 47 Consider in this respect the widely cited view of Will Kymlicka that ‘people should be able to live and work in their own culture. But like any other right, this right can be waived.’

12  Jessika Eichler and Kyriaki Topidi yet constant collective claim, however, concerns the encounters of the state and minority groups articulated through the right to participation and decisionmaking capacities. What conditions participation for minority members and which barriers should be removed to enhance it? Should the aim remain limited to equal participation in a society’s shared institutional apparatus and, following a more pluralistic spirit, how can one justify minority religious schools for example, or religious alternative dispute resolution mechanisms? If we were to turn back to the law, it becomes clearly discernible that the mobilisation of law by minority groups to serve identity-related claims, especially in contexts where sociopolitical change is not materialising, takes the form of legal procedures against the state.48 Very common, as part of these legal claims, are requests for exemption from state policies, for accommodating special practices or challenging discriminatory practices.49 Indeed, minority protection claims have been transformed into a ‘right versus might’ polarisation: minority normative legal principles are confronted with cultural majorities who are seeking support in numerical criteria and populism while resisting minority claims with the objective of imposing cultural homogeneity.50 And yet, granting minority rights becomes less and less the object of disagreement, even among liberals,51 and more a question of justification, with self-determination assuming an important function: that of a tight linkage to one’s well-being, bearing an intrinsic value, and being connected to conceptions of ‘good’ for people which entails special commitments.52 In clearer terms, self-determination allows members of a minority group to express their distinctive values and preferences in political decisions while making public life and its institutions meaningful for the group in question. At the same time, self-determination becomes a ‘good’ that arguably should be afforded as ‘a claim of justice (in terms of) the distribution by public institutions of resources and structures that provide opportunity to attain goods that matter to them’.53 Lastly, self-determination can also be the

48 Both collective as well as strategic litigation to enforce change of policy through courts are widely used techniques by minority groups, well beyond race and/or culture. See R Cichowski, ‘Civil Society and the European Court of Human Rights’ in J Christoffersen and MR Madsen (eds), The European Convention on Human Rights between Law and Politics (Oxford, Oxford University Press, 2010). 49 I Sportel, ‘Claims-making in Court Cases on Children, Religion, Ethnicity and Culture in Cases of Dutch Minority Families against the State’ (2021) 11(4) Oñati Socio-Legal Series 1066–87, 1069. 50 R Koopmans, ‘Cultural Rights of Native Majorities between Universalism and Minority Rights’, WZB Discussion Paper SP VI 2018-106, December 2018, 20. 51 See, for example, Alan Patten’s more recent claim that ‘there are basic reasons of principle for thinking that certain policies of recognition and accommodation are owed to cultural minorities as such’ (A Patten, Equal Recognition: The Moral Foundations of Minority Rights (Princeton, Princeton University Press, 2014) 11) although these are largely dependent, in his opinion, on the background context of each case. 52 ibid 131–36. 53 A Patten, ‘Self Determination for National Minorities’ in FR Teson (ed), The Theory of Selfdetermination (Cambridge, Cambridge University Press, 2016) 120–44.

Introductory Remarks  13 source of respect for members of the minority because it becomes connected to the respect accorded to their group identity.54 5.  WAYS FORWARD IN THE NEVER-ENDING STRUGGLE FOR MINORITY RECOGNITION: ATTEMPTS TO BYPASS THE STATUS QUO

Given the scarcity of hard law instruments in the field of cultural or ethnic minorities in international law, competent mechanisms have shown creativity in extending their scope of protection to include cultural, ethnic, religious or linguistic minorities (see UN Human Rights Committee jurisprudence on Article 27 and Committee on Economic, Social and Cultural Rights on Article 15 respectively).55 Despite this apparent interest in minority issues shared among dedicated experts sitting on committees, minority rights remain at the periphery of international human rights law, being limited to ad hoc engagements. In international law, cultural and ethnic minority rights are addressed in specific contexts such as natural resource extraction,56 when touching upon intersectionality including gender rights,57 or whenever neighbouring regimes come into play, including, for example, peasants’ rights.58 We may then, albeit cautiously, hypothesise that international minority rights have come to be articulated through specific, and therefore isolated, rights claims rather than building on sui generis legal orders. Similar observations can be made under (the) domestic constitutional umbrella(s) where predominant equality orders prevent any differential treatment to find judicialisation in the realm of state-centric frameworks: indeed, European constitutionalism59 in particular falls short of allowing territorial autonomies, legal pluralism, collective rights generally, minority institutionalisation or religious identity to be expressed on a level-playing field. It is

54 For a discussion on the link between self-respect and self-government, see indicatively, C Taylor, Reconciling the Solitudes (Montreal, McGill–Queen’s University Press, 1993); A Margalit and J Raz, ‘National Self-determination’ (1990) 87(9) Journal of Philosophy 439–61. 55 Notably UN Human Rights Committee, General Comment no 23, ‘The Rights of Minorities (Art 27)’; CESCR, General Comment no 21, ‘Right of Everyone to Take Part in Cultural Life’. 56 See eg UN Human Rights Committee, Communication no 1457/2006, Ángela Poma Poma v Peru; UN Human Rights Committee, Communication no 511/1992, Ilmari Länsman et al v Finland; UN Human Rights Committee, Communication no 671/1995, Jouni E Länsman et al v Finland. 57 See eg CEDAW, General Comment no 34, ‘On the Rights of Rural Women’; CRC, General Comment no 11, ‘Indigenous Children and their Rights under the Convention’. 58 For example, while being a soft law instrument, the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas might be interesting to revise in that regard; P Claeys and M Edelmann, ‘The United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas’ (2020) 47 Journal of Peasant Studies 1. 59 Consider, for instance, European constitutional orders and their positioning on ‘national’ minorities, J Ringelheim, ‘Minority Protection and Constitutional Recognition of Difference: Reflections on the Diversity of European Approaches’, in A Verstichel, A Andre, B de Witte and P Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Intersentia, Cambridge, 2008).

14  Jessika Eichler and Kyriaki Topidi hence through the lenses of specific rights and a contextualised understanding of existing rights that we are compelled to explore minority claims and their very success, for collective rights to eventually be recognised by the dominant (legal) order. As alluded to earlier, demands for territorial and political autonomy represent a recurring challenge if viewed with a state-centric mindset. The annual EMRIP session vividly illustrates how autonomy has remained on international agendas for decades.60 Domestic struggles equally evolve around self-determined forms of governance, territorial control and related manifestations of autonomy, commonly limited by constitutional law and the principle of sovereignty. Instead, a lot of hope is placed in new collective rights orders, including in an intergenerational sense such as food security claims or environmental justice demands,61 allowing for collective rights to accommodate – procedurally, as a form of umbrella right – a wide panoply of those claims that prove to be of special importance to minority groups. In other words, basic procedural guarantees such as the right to consultation and other contract-like guarantees are to channel other human rights demands, to render these invokable and effective.62 Following recent developments, environmental and other rights in fact have come to be seen from a human rights perspective,63 allowing humanity’s current concerns to be translated into a common language of rights. Albeit relatedly, subsistence-related needs, including the right to food and water, have come to be understood as a collective concern of intergenerational relevance, thereby establishing rights for future generations and responsibilities for current states, societies and individuals.64 More can be said about the nature of these newly emerging collective rights. Ever since the first attempts at codifying rights, taking its beginnings in early civil law traditions in ancient Rome or basic democratic principles in ancient Greece, human rights have been shown to be reactionary in the sense of responding to institutionalised forms of ill-treatment. With changing realities so have societal concerns been shifting across time and space. Minority–state relations

60 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), ‘Indigenous Peoples’ Rights in the Context of Borders, Migration and Displacement: Study of the Expert Mechanism on the Rights of Indigenous Peoples’ (Human Rights Council, 2019). 61 See eg CJ Winter, Subjects of Intergenerational Justice: Indigenous Philosophy, the Environment and Relationships (Abingdon, Routledge, 2022). 62 See eg C Rodríguez-Garavito, ‘Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields’ (2011) 18 Indiana Journal of Global Legal Studies 1. 63 See eg MG Aguilera Bravo, Human Rights and the Environment in Latin America and the Caribbean: Environmental Human Rights under the American Convention on Human Rights and the Escazú Agreement on Access Rights (Doctoral Dissertation, Georg-August Universität Göttingen, 2021). 64 See essentially, intergenerational equity theory, E Brown Weiss, ‘Intergenerational Equity’, in Max Planck Encyclopedia of Public International Law (2021); E Brown Weiss, ‘Implementing Intergenerational Equity’ in M Fitzmaurice, DM Ong and P Merkouris (eds), Research Handbook on International Environmental Law (Cheltenham, Edward Elgar, 2005).

Introductory Remarks  15 need to be read in that sense, as an expression of subordination to the assimilating entity of the state,65 in past but also current accounts. Naturally, basic freedoms and equality regimes would stand at the forefront in the aftermath of the early seventeenth-century religious wars or in the medieval age of privileged social classes in Europe. In current times, exclusion from generally applicable rights, freedoms and public goods manifests itself in a particular way, creating minority categories in their own terms. Long-established safeguards, including citizenship or equality principles, have come to lose universal applicability, hence permitting novel forms of exclusion to emerge.66 As a product of the postWestphalian order, the newly born state has come to understand its frontiers as a limit to its protective umbrella and granting of basic rights. In times of continuing armed conflicts, environmental disasters, food insecurity or similar crisis situations around the world, minorities have lost any geographical bonds, being exposed to the benevolence of, and arbitrary treatment by, a multiplicity of states in the Global North. We have thus not managed to distance ourselves from a state of exposure, subordination and intolerance, ultimately threatening the existential needs of dedicated groups, and giving rise to collective claims. The recent absorption of collective rights into human rights orders may similarly be attributable to a transforming scenery of rights, oriented towards plural identities and cumulative or compounded manifestations of discrimination – so-called intersectional forms of discrimination.67 Albeit relatedly, we are witnessing a widening of existing concepts, a pluralising understanding of pre-established human rights categories. If we take gender, for instance, we are witnessing a growing awareness of LGBTQI+ communities,68 that is, beyond a strict conceptual adherence to women’s rights. These, in turn, commonly build on a number of vulnerability situations, including but not limited to socioeconomic background. Indigenous rights, too, have come to be understood as a form of ‘intersectional rights’,69 typically in the case of women’s rights,70 the rights of

65 See eg Tully (n 10). 66 D Kochenov, Citizenship (Cambridge, MA, MIT Press, 2019). 67 See eg S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Oxford, Hart, 2020). 68 For a genealogical history of the concept and its claims, see eg F Romana Ammaturo, European Sexual Citizenship: Human Rights, Bodies and Identities (Cham, Springer, 2017). 69 ‘Intersectional rights’ is used as a working term to refer to those rights arising in the context of intersectional grounds and intersectional discrimination; see the following understanding of ‘intersectionality’ as it was first coined by Kimberlé Williams Crenshaw among others: ‘[Intersectionality] was introduced in the late 1980s as a heuristic term to focus attention on the vexed dynamics of difference and the solidarities of sameness in the context of antidiscrimination and social movement politics. It exposed how single-axis thinking undermines legal thinking, disciplinary knowledge production, and struggles for social justice’. S Cho, K Williams Crenshaw and L McCall, ‘Toward a Field of Intersectionality Studies: Theory, Applications, and Praxis’ (2013) 38(4) Signs: Journal of Women in Culture and Society 785. 70 See eg R Sieder and MT Sierra, ‘Indigenous Women’s Access to Justice in Latin America’ (Chr. Michelsen Institute Working Paper 2, 2010).

16  Jessika Eichler and Kyriaki Topidi the child71 or the rights of persons with disabilities.72 Indeed, the Convention on the Rights of the Child stipulates indigenous rights in its treaty for the first time in human rights history (see Articles 17, 29, 30). Indigenous women’s rights, by contrast, look back at a long-established struggle, possibly as old as indigenous peoples’ rights themselves, often viewed from a decolonising angle.73 Some may compare and contrast women’s rights claims and indigenous collective rights such as Kymlicka’s ‘external protection vs internal restrictions’74 framework, or Shachar’s ‘transformative accommodation’;75 conciliatory approaches on the matter have started to find their place in human rights work. In fact, the feminist indigenous literature has come to see indigenous collective demands for selfdetermination as intrinsically linked to the female struggle for decolonisation.76 Very commonly, though, indigenous women’s rights are confined to a certain seriousness in scale among which rape, murder and even feminicide figure as the most visible violations in the current age.77 We tend to forget about the mundane nature of some of the claims, less tangible, less observable in a patriarchal world and its presumptions, reflected in everyday decision-making in the private and public spheres, knowledge authority, or at times when building on supposedly gender-specific roles and behavioural patterns. The fragmented landscape of human rights orders generally acknowledges said realities, having included infringements of human rights on intersectional grounds (of discrimination) throughout its interpretative commentary system. In a way, it has mainstreamed cumulative grounds more systematically in recent years.78 This may represent yet another entry through the back door

71 See eg J Rae, Indigenous Children: Rights and Reality. A Report on Indigenous Children and the UN Convention on the Rights of the Child (First Nations Child and Family Caring Society of Canada, 2006); Rodríguez Fajardo, A, ‘Article 14’ in Eichler et al (n 18). 72 See eg H Hickey, ‘Indigenous People with Disabilities: The Missing Link’ in M Sabatello and M Schulze (eds), Human Rights and Disability Advocacy (Philadelphia, University of Pennsylvania Press, 2014). 73 S Rivera Cusicanqui, Violencias (Re)Encubiertas en Bolivia. Visiones no Domesticadas sobre lo Indio en Bolivia (La Paz, Mirada Salvaje, 2010); R Kuokkanen, ‘Self-determination and Indigenous Women’s Rights at the Intersection of International Human Rights’ (2012) 34 Human Rights Quarterly 1. 74 Kymlicka, Multicultural Citizenship (n 10). 75 A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge University Press). 76 B Gunn, ‘Self-determination and Indigenous Women: Legitimacy through Inclusion’ (2014) 26 Canadian Journal of Women and the Law 2; B Gunn and S Morales, ‘Article 44’ in Eichler et al (n 18). 77 Inter-American Commission on Human Rights (IACHR), ‘Violence and Discrimination against Women and Girls: Best Practices and Challenges in Latin America and the Caribbean’ (IACHR in collaboration with Edison Lanza, SR for Freedom of Expression and Soledad García Muñoz, SR on Economic, Social, Cultural, and Environmental Rights, 2019). 78 CEDAW, General Comments no 35, ‘On Gender-based Violence Against Women’; no 33, ‘On Women’s Access to Justice’; no 28, ‘On the Core Obligations of State Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women’; no 25, ‘On Gender-Related Dimensions of Racial Discrimination’; no 24, ‘On Article 12 of the Convention (Women and Health)’; no 27, ‘On Older Women and Protection of their Human Rights’; CERD,

Introductory Remarks  17 for minority rights to be recognised, to steadily enjoy more acceptance among treaty-monitoring bodies, specialised institutions, commissions and committees. Collectivisation, then, may remain contextualised, sporadic for the time being – we may cautiously advance – living up to the human rights vogue of the time, yet without demonstrating any hampering attitude towards a more integrationist approach of human rights, and the eventual transformation of its individualising rationale. Indigenous peoples’ rights, however, may invite a more positive reading, allowing for collective rights to culminate in a sui generis order in its own regard.

General Comment no 37, ‘On the Gender-Related Dimensions of Disaster Risk Reduction in the Context of Climate Change’; CRPD, General Comments no 3, ‘On Women and Girls with Disabilities’; no 6, ‘On Equality and Non-discrimination’; no 7 ‘On the Participation of Persons with Disabilities, including Children with Disabilities, through their Representative Organisations, in the Implementation and Monitoring of the Convention’; no 4, ‘On the Right to Inclusive Education’; CEDAW Individual Communication no 17/2008, Maria de Lourdes da Silva Pimentel v Brazil; Individual Communication no 19/2008, Cecilia Kell v Canada.

18

Part I

Theorising Recognition: (De)constructing Minorities in the Law and Elsewhere

20

2 Making Social Groups Visible to and in Law – Essentialisation and Law’s Generality* MIODRAG JOVANOVIĆ

1. INTRODUCTION

L

aw is commonly perceived as a normative order which is apt to be appraised in terms of justice. Public debates about justice are often built upon some tacit premises, such as about the kind of actors who are entitled to make justice claims. In a standard liberal-democratic setting, these actors are typically only individuals and, hence, law is expected to distribute benefits (rights) and burdens (duties) among them. Multiculturalism, as a normative political theory, however, proceeds, from the idea that some social groups are not only identifiable and as such visible to law, but that they also have to be recognised in law as actors eligible for making justice claims.1 One of the often raised criticisms against this ‘politics of recognition’ is based on the argument that making some social groups visible in law necessarily triggers the negative effect of essentialisation of their cultural identities. After a brief analytical reconstruction, as well as deconstruction of the essentialisation charge, I will show that this argument is unintentionally broader, because rights/duties essentialise by default. That is, rights/duties require holders, and a putative holder has to be attributed the given legal status, which is determined by relevant rights and duties. Legal status, in that respect, is a legal construct which revolves around certain pertinent features

* The very first version of this paper was presented at the conference ‘Challenges and Ways Forward: Critical Assessment of the International Minority Protection Regime’, which was organised by the Tom Lantos Institute, Budapest, 2–3 March 2018. A revised version was presented at the conference ‘Making Social Groups Visible to Law’, which was organised by University College Cork, 1 March 2019. 1 One of the theoretical battlefields concerns exactly the question of eligibility of different social groups for such recognition. I will tackle this question later.

22  Miodrag Jovanović according to which a class of actors is identified and classified for a distinctive treatment in and by law. Accordingly, essentialisation is a corollary of law’s generality, which is normally particularistic, and only exceptionally, in the case of human rights, universalistic.2 Take the legal status of ‘student’. It implies that a certain set of actors is singled out and differentiated from the rest of the society on the basis of a relevant feature – enrolment at the accredited university. Some other potential relevant features for the legal status of student – the amount of disciplinary knowledge one possesses, or the time allocated for studying some subject matter – are entirely dismissed. Similarly, if a lawmaking institution wants to make, say, some linguistic group visible in law, by protecting it through some set of additional rights, it has to differentiate the group from the rest of polity and treat it separately on the basis of a relevant feature – in this case, language. The analogy, however, usually stops at this point. Unlike in the case of ‘students’, in which the essentialising feature of the legal status is specified by the legal system itself (eg enrolment at the accredited higher-education institution), in the case of a linguistic group some such feature is typically part of the socially constructed culture/identity that precedes the act of legal recognition (eg Cyrillic script as a language’s writing system). So, a language group’s right to protection may have the tendency to essentialise such socially construed, dominant features of the group’s spoken and written language – say, a less-used dialect might not be considered representative of the language group. How to offset these potentially negative tendencies of law’s generalisation in cases where some social groups are being made visible in law? One obvious way to circumvent the problem would be to abandon the approach, which relies on responding to social groups’ justice-claims by granting them legal rights. This strategy, however, would hardly be able to adequately settle political conflicts based on groups’ justice-claims requests. Therefore, I will argue that in order to minimise potential essentialisation effects of making groups visible in law, the only viable option would be to encourage social groups to critically self-reflect upon what are deemed dominant features of their social identity in order not to make it overtly rigid and exclusionary. This, in turn, will have bearing on the concomitant practice of both law-making and law-applying institutions.

2 Kelsen famously distinguished between the four spheres of validity of legal norms – temporal, territorial, material and personal. The last mentioned concerns the question ‘who shall perform or avoid’ the behaviour regulated by a norm. He says: ‘Just as there are norms valid only for a certain territory, for a certain time, and with respect to certain matters, so there are norms valid only for certain individuals, for instance Catholics or for Swiss.’ H Kelsen, General Theory of Law and State (New Brunswick and London, Transaction Publishers, 2006) 42. The norms he mentions are particularistic general norms, insofar as they refer to a specific set of norm-subjects (eg Swiss). Unlike them, universalistic general legal norms are those addressing all individuals. They are typically recognisable via linguistic formulations ‘everyone’, ‘every person’, ‘all’, which are widely used in human rights instruments and constitutions.

Making Social Groups Visible to and in Law  23 2.  SOCIAL GROUPS IN THE LEGAL LANDSCAPE: TERMINOLOGICAL AND CONCEPTUAL CLARIFICATIONS

To state that social groups are visible to and in law is to consider them part of a peculiar ‘legal landscape’. But what does this phrase refer to? When differentiating between physical (natural) and juristic persons, Kelsen highlights the following: To define the physical (natural) person as a human being is incorrect, because man and person are not only two different concepts but also the results of two entirely different kinds of consideration. Man is a concept of biology and physiology, in short, of the natural sciences. Person is a concept of jurisprudence of the analysis of legal norms.3

What Kelsen is telling us is that apart from physical reality, which is a province of natural and some social sciences, there is a layer of artificial reality, created by law, which is the proper domain of the study of jurisprudence. Law intervenes in the physical and social world thereby generating its own landscape – ‘legal landscape’. This leads us to the clarification of terminology employed in the very title of this contribution. What does ‘visibility to law’ imply? In order for a social relation or actor to be visible to law, it has to be socially identifiable as such. In short, the socially identifiable existence of an actor or relation is observable and verifiable in the respective social and linguistic practices. For instance, in some societies the practice exists of killing a member of a family because that person has been deemed to have shamed or dishonoured the family or the religious and cultural community. The social existence of the practice is verified in the respective linguistic practice in which a particular phrase – honour/shame killing – is used to denote this particular type of homicide. This is what makes a social actor or relation visible to law. However, law may obviously remain silent with respect to the given practice, as was historically the case in many countries. Hence, only when some socially distinctive actor or relation is legally regulated does it become also visible in law. This differentiation enables us to analytically acknowledge various possibilities when dealing with the topic of our concern – various social groups and their visibility to and in law. For instance, certain social actors, such as supporters’ groups of football clubs, are often socially distinguishable (take, for instance, the Paris St Germain supporters’ groups Boulogne Boys or Collectif Ultras Paris), and yet, they are hardly ever as such visible in law. Some other social groups that were once visible to and in law, such as estates of the realm, have been in the meantime both socially and legally deconstructed. In the Middle Ages, these social formations, usually distinguished as the clergy, nobility and commons,



3 ibid

94.

24  Miodrag Jovanović owed their existence to some socially distinctive features, such as elements of exclusiveness and acceptability, common life chances, and shared culture and experience, which were also visible in the then legal and political structure of the state. Their visibility in law amounted to the legal and political recognition of their distinctive social identity. Finally, there are social groupings or identities that appear to be visible only in law without previously being clearly socially discernible either to putative group members or to law. Offe mentions the example of the German foreigners’ councils (Ausländerbeiräte) as consultative bodies of local governments, which represent immigrant communities. He says: ‘People represented by such councils often belong to half a dozen or more different nationalities. It would never occur to them having their identity cast in terms of being “foreigners”’, a group identity label by which they are visible in law.4 Or, take the case of the ‘American Indians’ (indigenous peoples), who, for a long time, remained faithful to their own separate tribal self-identification, but after decades of a uniform administrative treatment they largely accepted this imposed overarching identity by which they were recognised as visible in legal and political institutions of society, such as the Indian Citizenship Act of 1924.5 Therefore, in generating its own landscape and layer of reality, law inevitably affects the processes of construction and deconstruction of certain social identities. The preceding analysis leads us to the following question: which social actors should be recognised and visible in law? It is obvious that this question falls in the province of political philosophy, and only by approaching the problem from this perspective would one be able to say something meaningful about the alleged arbitrariness of the legal landscape. Arbitrariness is commonly perceived as a clear negation of justice, and justice falls into the proper domain of political philosophy. As famously espoused by Rawls: Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.6

Put succinctly, Rawls’s message is that law may appropriately be inspected in terms of justice.

4 C Offe, ‘“Homogeneity” and Constitutional Democracy: Coping with Identity Conflicts Through Group Rights’ (1998) 6(2) Journal of Political Philosophy 113–41, 128, n 26. 5 In the words of Mitnick, ‘the social label “American Indian” reveals more about the European explorers’ true original objective (ie to locate a trade route to the East Indies), than it does about the ethnically diverse population to whom the label became attached’. EJ Mitnick, Rights, Groups, and Self-invention: Group-Differentiated Rights in Liberal Theory (Aldershot, Ashgate, 2006) 76. As is widely known, these groups largely identify themselves today as ‘indigenous peoples’. 6 J Rawls, A Theory of Justice, rev edn (Cambridge, MA, The Belknap Press of Harvard University Press, 1999) 3.

Making Social Groups Visible to and in Law  25 This, to my mind, reveals something important about the overall function and goal of law as a distinctive normative order. Elsewhere7 I have argued that both law-making and law-application have the function of coordinating behaviour of norm-subjects and settling their disputes. These functions are exerted through the allocation of certain benefits and burdens in the form of rights and obligations, as well as through remedying harms stemming from the wrongful behaviour of norm-subjects. Bearing this mind, I endorsed Leslie Green’s thesis, that ‘[i]n view of the function of law in creating and enforcing obligations, it necessarily makes sense to ask whether law is just’. Hence, justice-aptness is a typical feature of law.8 More precisely, law can necessarily be inspected in light of either distributive or rectificatory types of justice (Aristotle).9 The question as to whether certain groups should be visible in law belongs, thus, largely to the province of political theory of distributive justice. Let us not forget, however, that there is a prior, lingering conceptual dilemma to be solved, namely: are groups as such capable of making justice claims? This dilemma is far from settled. As pointed out by Nancy Fraser, public debates about justice often ‘assume the guise of normal discourse’ regarding different assumptions, including, for instance, ‘ontological assumptions about the kind(s) of actors who are entitled to make [justice] claims’.10 Within a standard liberaldemocratic picture, these actors are typically only individuals and law is expected to allocate benefits (rights) and burdens (duties) among them. Therefore, if one is to argue that groups should be made visible in law in the aforementioned sense of the word, one needs to move beyond this standard liberal picture and to argue that there are verifiable signs of groups’ social existence, ie their visibility to law. One way to do it would be to entangle oneself in murky philosophical debates about group ontology.11 The alternative route, which seems to me justifiable enough, would be simply to proceed from empirical observation of our social and linguistic practices, which will unmistakably lead us to the conclusion not only that social groups are socially verifiable, but also that a number

7 M Jovanović, The Nature of International Law (Cambridge, Cambridge University Press, 2019). 8 L Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83(4) New York University Law Review: 1050. 9 Jovanović (n 7) ch VI. 10 N Fraser, ‘Abnormal Justice’ (2008) 34(3) Critical Inquiry 393. 11 For a general overview of debates regarding ontology of social groups, see B Epstein, ‘Social Ontology’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (Summer 2018), at https:// plato.stanford.edu/archives/sum2018/entries/social-ontology/. For a recent dismissal of the question of whether any social groups exist, and a focus on the question ‘what are social groups?’, see eg AL Thomasson, ‘The Ontology of Social Groups’ (2019) 196 Synthese 4829–45. Ritchie focuses on the same problem, advancing the so-called ‘Goldilocks constraint’, which states: ‘An ontology of social groups should include social groups that are common sensical and that figure in explanations and should not overgenerate social groups.’ K Ritchie, ‘Social Structures and the Ontology of Social Groups’ (2020) 100(2) Philosophy and Phenomenological Research 402–24. The discussion taken here is premised on the idea that the question ‘are there any social groups?’ is answered in the affirmative.

26  Miodrag Jovanović of political conflicts around the world are shaped in terminology by denied group justice claims, be it to respect autonomy, the status of a minority or its independence.12 Offe has devised a useful distinction between the three types of political conflicts regarding justice that are moderated by legal instruments. Whereas traditional ones are ideology-based and interest-based conflicts over rights and resources, which are mitigated by constitutionally guaranteed political and social rights, far more complex are identity-based conflicts over group recognition and respect.13 What is the most adequate instrument for coping with identity-based conflicts? Offe says that ‘the antidote that constitutional democracies have available’ in dealing with this type of conflict is ‘group rights’.14 Making groups visible in law by allocating them rights is obviously premised on the ‘politics of recognition’, whose key postulate is famously formulated by Taylor: ‘Just as all must have equal civil rights, and equal voting rights, regardless of race or culture, so all should enjoy the presumption that their traditional culture has value.’15 Nevertheless, the lingering problem concerns the question of which groups deserve to be visible in law and in which particular way. This problem is addressed by various versions of the political philosophy of multiculturalism.16 Although being a staunch proponent of a more robust strand of this philosophy, I will not dwell upon this issue at this place.17 Instead, I would like

12 Kymlicka has famously argued that these demands are translatable into requirements of ‘ethnocultural justice’. W Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford, Oxford University Press, 2001) ch 2. 13 Offe (n 4) 119–20. 14 ibid 123. It is more than obvious that these conflicts can intersect and overlap, which raises new problems of coping methodologies. See eg K Banting and W Kymlicka (eds), Multiculturalism and The Welfare State: Recognition and Redistribution in Contemporary Democracies (Oxford, Oxford University Press, 2006) 15 C Taylor, ‘The Politics of Recognition’ in A Gutmann (ed), Multiculturalism: Examining the Politics of Recognition (Princeton, Princeton University Press, 1994) 68. Whereas ‘culture’ may be more prominently used in the literature, the other equally employed concept is ‘identity’. Eisenberg says: ‘Groups offer justifications for their claims by explaining what is important to their identity. Public institutions often view considerations concerning group and individual identity as relevant to their decisions about whether claims ought to be accepted or rejected. Groups “explain their identity” and public decision makers “assess identity” in ways that involve raising challenging questions. What ought to be considered central or important about an individual’s or group’s identity? What standards of evidence ought to be used to make such assessments? How should inter-community disagreement or individual dissent about the importance of a practice be incorporated into decisions about whether practices ought to be protected or prohibited? How should harm be assessed, especially when what constitutes harm may be controversial?’ A Eisenberg, Reasons of Identity: A Normative Guide to the Political and Legal Assessment of Identity Claims (Oxford, Oxford University Press, 2009) 1. 16 For different strands of this political theory, see S Thompson, The Political Theory of Recognition: A Critical Introduction (Cambridge, Polity Press, 2006) Without any doubt, the most important contribution in the field is W Kymlicka’s, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1995) 17 I have initially developed this argument in M Jovanović, ‘Recognizing Minority Identities through Collective Rights’ (2005) 27(2) Human Rights Quarterly 625–51. More recently, I have tackled the problem of arbitrariness of legal landscape in M Jovanović, ‘Constructing Legal Personality of Collective Entities – The Case of “Peasants”’ in T Pietrzykowski and B Stancioli (eds), New

Making Social Groups Visible to and in Law  27 to draw attention to one rather common attack on the politics of recognition, which principally undermines any effort to make some group actors visible in law. It concerns the so-called ‘essentialisation’ charge. 3.  THE ‘ESSENTIALISATION’ CHARGE

One of the often-raised criticisms against the ‘politics of recognition’ is based on the argument that making some social groups visible in law leads to essentialisation of their cultures/identities. According to Appiah, ‘acts of recognition, and the civil apparatus of such recognition, can sometimes ossify the identities that are their object’. Insofar as ‘here a gaze can turn to stone’, he calls this phenomenon ‘the Medusa Syndrome’.18 In its tendency to petrify some cultural/ identity traits, multiculturalist policies, according to criticists, have further detrimental effects on the lives of individual members and/or to the internal marginalised segments of the group. Phillips, thus, says that multiculturalism eventually ‘appears not as a cultural liberator but as a cultural straitjacket, forcing those described as members of a minority cultural group into a regime of authenticity, denying them the chance to cross cultural borders, borrow cultural influences, define and redefine themselves’.19 Eisenberg is one of the few authors in the field who has approached this problem with more subtlety and sense for nuanced analytical distinction. She identifies four distinctive ways essentialism occurs when law-making and lawapplying institutions try to make groups visible in law by protecting their culture/identity.20 These are: ‘(a) essentialism of distinctive features, (b) the billiard-ball view of culture, (c) cultural authenticity and (d) primordialist essentialism’.21 The first form of essentialism is associated with cases in which groups are offered additional rights provided ‘they can show they have a distinctive practice that sets them apart from other citizens’ (eg Saami people’s practice of herding reindeers).22 The second form comes with the perception that the boundaries between the groups are ‘clearly demarcated rather than blurred’ and that they are ‘internally uniform so that a characteristic ascribed to the group is assumed to be shared by all members’.23 The third form occurs when institutions

Approaches to the Personhood in Law: Essays in Legal Philosophy (Frankfurt, Peter Lang, 2016) 93–110. 18 KA Appiah, The Ethics of Identity (Princeton, Princeton University Press, 2005) 110. 19 A Phillips, Multiculturalism without Culture (Princeton, Princeton University Press, 2007) 14. 20 I will not critically reflect upon the employed labels here, but will use them solely as helpful analytical tools. 21 A Eisenberg, ‘Identity Politics and the Risks of Essentialism’ in P Balint and S Guérard de Latour (eds), Liberal Multiculturalism and the Fair Terms of Integration (Basingstoke, Palgrave Macmillan, 2013) 162. 22 ibid 160. 23 ibid 160–61.

28  Miodrag Jovanović ‘distinguish between authentic and inauthentic group members in order to determine who will receive a legal benefit’ (eg who is a Jew according to Halacha).24 Finally, the fourth form concerns treating cultural/identity traits ‘as primordial or natural rather than socially constructed’ (eg judges take certain values, such as honour, shame or submissiveness, as ‘endemic to particular cultures’).25 Although analytically helpful, Eisenberg’s heuristic framework does not cancel out the fact that multiculturalism is often perceived by its critics as somehow straightforwardly implying essentialisation of protected group cultures/ identities. Kymlicka says that, according to this blunt criticism, ‘multiculturalism is actively “encouraging” people to think in essentialist terms, “pressuring” people to act in essentialist ways, even “forcing” and “imposing” essentialist identities and practices on people’. However, all of this talk of multiculturalism doing things out there in the world is hopelessly reified. Multiculturalism isn’t a single actor or force that speaks with a single voice. It operates at different levels: theorists of multiculturalism say one set of things; laws, bureaucratic regulations and court decisions tell us another set of things; the media tell us yet another; and activists have their own message.26

Therefore, a somewhat paradoxic effect of the essentialisation charge is that it itself essentialises both multicultural theory and practice. Modood notices that this charge ‘rightly identifies some elements of essentialism in the political discourses of identity and culture but attributes a false importance to them’.27 It ascribes them ‘the status of being the beliefs that constitute the understanding of culture, identity and so on in multiculturalism, when in fact multicultural discourses may be, indeed invariably are, based on a variety of beliefs and assertions about culture’.28 The fact that some of them are essentialist does not imply that all of them are of such a nature. For example, my legal theory of collective rights29 is premised on a rather robust version of ‘groupness’ and the philosophical standpoint of value collectivism, that is, ‘the view that a collective entity can have value independently of its contribution to the well-being of individual human beings’.30 This standpoint implies that collective rights may at times (not necessarily always!) outweigh the conflicting individual rights of group members. So, it seems that the essentialisation charge might be even more compelling when directed against the version of

24 ibid 161. 25 ibid 161–62. 26 W Kymlicka, ‘The Essentialist Critique of Multiculturalism: Theories, Policies, Ethos’ (Working Paper EUI RSCAS, 2014/59) 17. 27 Tariq Modood, Multiculturalism: A Civic Idea, 2nd edn (Cambridge, Polity Press, 2013) 90. 28 ibid. 29 M Jovanović, Collective Rights: A Legal Theory (Cambridge, Cambridge University Press, 2012) 30 M Hartney, ‘Some Confusions Concerning Collective Rights’ (1991) 2(4) Canadian Journal of Law and Jurisprudence 297.

Making Social Groups Visible to and in Law  29 multiculturalism to which I subscribe. However, instead of trying to show that my approach – or any other version of multiculturalism for that matter – is fully immune to this charge, in the remainder of the contribution I want to highlight a rather neglected aspect of the criticism of essentialisation. 4.  ESSENTIALISATION AND LAW’S GENERALITY

The key point I want to stress is that the ‘essentialisation charge’ is unintentionally broader, because legal rights essentialise by default. Let me elaborate on this. Rights require rights-holders, and a putative holder has to be attributed the given legal status, which is determined by relevant rights and duties. This is the crux of Kelsen’s opening remark regarding legal personhood. Legal status, in that respect, is a legal construct that revolves around certain pertinent features according to which a class of actors is identified and classified for a special treatment by law. Take the following statement by Hart: [T]he law must predominantly, but by no means exclusively, refer to classes of person, and to classes of acts, things, and circumstances; and its successful operation over vast areas of social life depends on a widely diffused capacity to recognize particular acts, things, and circumstances as instances of the general classifications which the law makes.31

Having in mind this classificatory step, some form of essentialisation turns out to be an inevitable corollary of law’s generality. And this is so irrespective of whether law becomes general through an inductive method, ie through judicial precedent, typical of common law systems, or through a deductive method, ie through statutory regulation, typical of civil law systems.32 Now, law’s generality is normally particularistic and only exceptionally universalistic – in the case of human rights norms that guarantee entitlements and liberties to all humans in virtue of their humanity. In that respect, Waldron’s suspicion towards legal accommodation of various ethnocultural practices on account that they allegedly violate the rule-of-law principle, according to which ‘the law should be the same for everyone: one law for all and no exceptions’,33 is largely misplaced. Waldron is particularly focused on the cases of legal exemptions for various ethnocultural groups. While he is fully aware that ‘an exception stated in general terms does not formally violate the rule of law principle’, he nonetheless thinks that it ‘poses a number of difficulties’.34 However,

31 H Hart, The Concept of Law, 3rd edn (Oxford, Oxford University Press, 2012) 124 (original emphasis). 32 ibid. 33 J Waldron, ‘One Law for All? The Logic of Cultural Accommodation’ (2002) 59(1) Washington & Lee Law Review 3. 34 ibid 9.

30  Miodrag Jovanović the ‘difficulties’ Waldron has in mind come only as the upshot of the assumed political-philosophical position of egalitarian liberalism and individualism.35 If one were to change the initial normative position and argue for a regime of the group-based toleration36 and personal law regimes for various ethnocultural and religious groups,37 then no such ‘difficulty’ would have occurred. True, the proponent of the latter view would be most likely accused of pursuing some sort of anti-Enlightenment agenda,38 but this would in no way affect the generality of the drafted rules. From a purely formal point of view, legal norms in both regimes would be primarily of particularistic generality.39 Take, for instance, the particularistic generality of legal rules regulating the status of a class of actors who are separated from the rest of society and legally qualified as ‘students’. Virtually all legal systems in the world construct this status by centring it on the key feature: that a person, having successfully completed the previous circle of formal education, is enrolled at an accredited academic institution. In that respect, the accompanying rights of ‘students’ (say, regarding local transportation, dormitory housing, etc) essentialise this feature of the given legal status, and even of the concomitant social identity. That is, no person can properly consider herself ‘student’ – either in the eyes of the law or in the eyes of society – if she is not enrolled at some university. Someone may far more diligently ‘study’ some subject, discipline or science than her peer enrolled at the university, and as a consequence may even accrue greater knowledge in some field than an average undergraduate, and, yet, this will not affect his/her status in the ‘legal landscape’, only the latter will find herself in the legal (and social) status of a ‘student’. The same effects are noticeable when some already existing social group (eg a linguistic group) is legally recognised. First, making groups visible in law

35 For a general criticism of multicultural theory and practice from this standpoint, see B Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, MA: Harvard University Press, 2001). Waldron often proceeds from this position in discussing ‘the logic of cultural accommodation’, but by the end of his paper it becomes clear that he is not fully endorsing Barry’s harsh criticism of multiculturalism. See Waldron, ibid, 32–34. 36 In Walzer’s well-known classification of five regimes of toleration, this would be the one typical of ancient multinational empires. M Walzer, On Toleration (New Haven, Yale University Press, 1997) 157–58. 37 Nowadays India and Israel are countries with personal law regimes. By this term, we refer ‘to legal arrangements for the application within a single polity of several bodies of law to different persons according to their religious or ethnic identity’. M Galanter and JK Krishnan, ‘Personal Law and Human Rights in India and Israel’ (2000) 34(1) Israel Law Review 104–05. 38 This is how Barry readily labels multicultural theories and practices. Barry (n 35) 9 et seq. 39 Waldron’s overall interest is that the democratic legislator takes into account, as transparently and as prudentially as possible, all publicly stated reasonable accounts – including those inducing ‘the logic of cultural accommodation’ – before drafting something in the form of general legal rules. In pursuing this specific goal, Waldron, however, fails to give due credit to the fact that exceptions are, in fact, commonplace in law and legal reasoning, and not some special deviation of policies of ethnocultural accommodation. See in general, LD d’Almeida, Allowing for Exceptions: A Theory of Defences and Defeasibility in Law (Oxford, Oxford University Press, 2015)

Making Social Groups Visible to and in Law  31 implies endowing them with some set of rights not exercised by the rest of society. This can be done only via the earlier explained concept of particularistic general legal norms. If, for example, the legislator wants to make some religious groups visible in law, by protecting them through some set of additional rights, it necessarily classifies them as different from the rest of society and treats them separately. However, unlike in the case of ‘students’, where the essentialising features of the legal status are specified by the legal system, ie the legislator, in the case of religious groups some such features are commonly part of the socially constructed identity that preceded the act of legal recognition. Put differently, before being visible in law, some distinguishing features of the given group were already visible to law. For instance, the turban (dastār) is one of the most important features of Sikhism and something that clearly socially identifies its wearer as a member of this religious group. Thus, legally protecting a Sikh religious community in a meaningful way triggers at least two forms of essentialisation that Eisenberg speaks about. In order for this religious group to be visible in law, it has to demonstrate that wearing a turban is a distinctive practice that is vital for the existence of this religious group (‘essentialism of distinctive features’). In the next step, only those members of the group who can be identified via this essentialising distinctive feature as authentic shall be granted legal protection (‘cultural authenticity’). Illustrative, in this respect, is the case of Mandla v Dowell-Lee, in which the key legal question was whether Sikhs were visible in UK law, that is, whether they constituted a ‘racial group’ for the purposes of the Race Relations Act 1976. The case involved the decision of the headmaster of a private school to refuse to admit as a pupil a boy who was an orthodox Sikh, wearing long hair under a turban, unless he removed the turban and cut his hair. The boy’s father lodged a complaint with the Commission for Racial Equality on the grounds that his son was being racially discriminated against by the headmaster’s decision. The case was eventually brought before the House of Lords. The crux of the reasoning is embodied in the following statement of Lord Fraser of Tullybelton: For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.40

40 Mandla (Sewa Singh) and another v Dowell Lee and others [1983] 2 AC 548. The decision is available at www.hrcr.org/safrica/equality/Mandla_DowellLee.htm.

32  Miodrag Jovanović This case aptly demonstrates that acquiring the legal status of a protected group implies holding rights that essentialise the features of the culture/identity which were socially shaped within the very group. As previously stated, making groups visible in law may create additional, potentially troubling essentialisation effects. For example, take a statutory norm stating that an ethnic group’s culture shall be duly represented in publicly funded museums. Most likely, the established ethnic group right to culture will essentialise what are within the given group deemed as valuable cultural practices, thereby leaving aside alternative and subcultural practices that are not considered representative enough. Similarly, a language group’s right to elementary education in its mother tongue will presumably essentialise dominant features of the group’s spoken and written language, which means that a less used dialect might not be considered representative of the protected language group, etc. 5.  INSTEAD OF CONCLUSION: IS THERE A WAY OUT?

The discussion so far demonstrated that although essentialisation may indeed be an unwelcome consequence of making social groups visible in law, it is nonetheless a regular side effect of law’s generality. While this finding is good enough for dismissing the argument that multicultural politics is the unique source of essentialisation, it should not be turned into a universal excuse for any instance of essentialisation that may come with a particular multicultural policy. The question is then: is there a way out? Eisenberg rightly notices that ‘essentialism is often a by-product of difficult trade-offs decision-makers encounter’ when trying to make groups visible in law by accommodating their justice-claims. On one hand, when they recognise group cultural/identity practices, they indeed ‘risk essentialising groups in ways that can entrench hierarchies within the group or bind members to static conceptions of their community’s identity’. On the other hand, law-making institutions can easily sidestep these challenges ‘by adopting an approach that avoids the collective dimensions of identity but, in doing this, they are thereby less able to respond to the collective dimensions of injustice’.41 In light of this finding she inspects three ‘alternative approaches’ of identity politics: (a) ‘selfidentification’, which avoids the risk of elite manipulation;42 (b) ‘equality over culture’, which circumvents cultural interpretation by legal institutions;43 and (c) ‘self-determination over accommodation’, which challenges the right of the state to decide which practices or resources count as social groups’ entitlements.44 Eisenberg’s overall conclusion is that for all those advocating some

41 Eisenberg

(n 21) 159–60. 163–67. 43 bid 167–71. 44 ibid 171–74. 42 ibid

Making Social Groups Visible to and in Law  33 form of the politics of recognition, the real challenge will be to ‘discover how to mitigate the risks rather than how to avoid cultural interpretation altogether’.45 It seems that one of the important mitigating strategies concerns state authorities’ ongoing dialogue with social groups’ representative actors – NGOs, churches, institutions and individuals – to encourage them to self-reflect critically upon what are deemed dominant features of their culture/identity. This dialogue at times may imply that relevant social groups accept reasonable limitations of their cultural practices within certain contexts. For instance, in the ground-breaking decision of the Supreme Court of Canada in Multani v Commission scolaire Marguerite-Bourgeoys it was held that the banning of the Sikh ceremonial knife (kirpan) in a school environment offended Canada’s Charter of Rights and Freedoms. The Court, however, specified a number of safety limitations in order to strip the kirpan of its ‘dangerous characteristics’, and all of them were accepted by the Sikh community.46 Furthermore, despite a widely shared prejudice about the innate conservativism of ethnocultural group practices, these groups themselves are at times willing to self-reflect upon the potentially negative essentialisation effects of own cultural/identity features. For example, the 2000 Manila Declaration on indigenous peoples stated that: ‘[I]n revalidating the traditions and institutions of our ancestors it is also necessary that we, ourselves, honestly deal with those ancient practices which may have led to the oppression of indigenous women and children.’ The Declaration, nonetheless, ‘stresses that the transformation of indigenous traditions and systems must be defined and controlled by indigenous peoples’, and not imposed by state authorities.47 This, finally, has an important bearing on related practices of law-making and law-applying institutions. A general suggestion for legislators would be to avoid, where applicable, very specific, rule-like language regarding particular ethnocultural practices, and instead to adopt broader, purpose-oriented, standard-like formulations.48 This, in turn, would enable adjudicators to interpret 45 ibid 175. 46 The Court stated: ‘No student is allowed to carry a “knife”. The young Sikh is authorized to wear his kirpan, which, while a kind of “knife”, is above all a religious object whose dangerous nature is neutralized by the many coverings required by the Superior Court. The kirpan must be enclosed in a wooden sheath and the sheath must be sewn inside a cloth envelope, which must itself be attached to a shoulder strap worn under the student’s clothing. Secured in this way, the kirpan is almost totally stripped of its objectively dangerous characteristics.’ Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256, 2006 SCC 6, para 98. 47 Manila Declaration on Conflict Resolution, Peacebuilding, Sustainable Development and Indigenous Peoples, available at www.twn.my/title/manila.htm. The United Nations Declaration on the Rights of Indigenous Peoples follows a similar rationale when stating in Article 34 that ‘indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards’ (emphasis added). 48 Waldron backs up this very conclusion by the example of the State v Kargar case, involving Mr Kargar, an Afghani refugee living in Portland, who was seen by a babysitter kissing the penis of his eighteen-month-old son. Since the State of Maine has the statutory definition of ‘sexual contact’

34  Miodrag Jovanović formulated legal rules in culturally sensitive ways. At the same time, the cultural interpretation undertaken by adjudicating bodies would need, more than usually, to rely on opinions of relevant experts in the areas of social and cultural anthropology or religious studies.49 Taken together, this set of strategies seems to have the capacity to offset at least some of the perils of essentialisation that almost naturally come along with the politics of making social groups visible in law.

as ‘[a]ny act between two persons involving direct physical contact between the genitals of one and the mouth … of the other’, Mr Kargar was charged with felony. The problematic nature of the case stemmed from the fact that ‘kissing an infant son’s penis is common in Afghanistan, that it is done to show love for the child, that it is acceptable up until at least the third year of the child’s life, and that there are no sexual feelings involved’. Waldron sees this case as a clear ‘failure of legislative strategy’ in the above-mentioned sense of the word. Waldron (n 33) 6. 49 That this is an urgent need is demonstrated in a case of the German judge, who rejected the application for a speedy divorce of a physically abused Muslim woman, by referring to a passage in the Koran that supposedly gives a husband the right to beat his wife. V Medick and A Reimann, ‘A German Judge Cites Koran in Divorce Case’, Der Spiegel, 21 March 2007, available at www.spiegel. de/international/germany/0,1518,473017,00.html

3 Politicising Differences, Fighting Inequalities: Quilombolas in Brazil1 SERGIO COSTA

1. INTRODUCTION

D

ebates about inequality and difference are at least as old as sociology itself. They were already outlined in texts by Karl Marx or Max Weber.2 Today, these discussions have gained new relevance in the face of the unprecedented diversification of contemporary struggles for justice and the institutionalisation of public policies based on criteria of belonging defined by ascribed identity attributes. From an analytical point of view, the most difficult challenge is to know when differences politically matter, that is, when differences such as those between Whites and Blacks or between men and women gain political relevance, while other differences remain politically invisible. To say that politically significant differences are those that express inequalities would be to simplify, inadequately, the issue. After all, it was only in the twentieth century that inequalities between Whites and Blacks or between men and women – established for centuries across societies – entered the agenda of political institutions as a problem and an injustice to be fought against. At the same time, the difference that explains most contemporary inequalities – that is, nationality or citizenship – remains not at all or very little problematised. In sum, questions about the political character of differences or about the correlation between difference and inequality remain unanswered.

1 A previous version of this chapter appeared in S Costa, ‘Inequality, Difference, Articulation’ (2019) 32 Caderno CRH 33. 2 The well-known book published by Marx on the ‘Jewish question’ is an example. K Marx, ‘Die Judenfrage’ in K Marx and F Engels, Werke, vol 1 (East Berlin, Dietz, 1976 [1843]). Less known, but equally relevant, given its constructivist character, as opposed to the essentialisms of its time, is Weber’s chapter on the ethnic basis of community life, incorporating the discussion of race, ethnicity, people, and nationality. M Weber, Wirtschaft und Gesellschaft, 5th edn (Tübingen, Mohr, 1980 [1922]).

36  Sergio Costa Debates involving cultural differences and social inequalities have been at the core of the mobilisations of quilombolas in Brazil, the Brazilian maroons, since their existence was recognised by the constitution of 1988 as well as by further legislation and public policies.3 From then on, many communities, especially rural ones, which have a significant number of Black people, began to claim their quilombola status as a way to legitimise their struggles for land regularisation and for better living conditions in a more general sense. It is evident, in this case, that cultural differences – to be or not to be quilombola – are not pre-political, but emerge in the struggle for rights and for the mitigation of inequalities in access to land and other basic needs. To study the tensions and overlaps between inequality and difference, I first discuss three approaches that have become very influential in contemporary debates because they link discussions about inequality that are typical of sociology and economics to discussions about difference, more extensively treated by philosophy, anthropology and interdisciplinary fields such as gender studies or racial studies. These approaches are: the recognition–redistribution paradigm as developed by N. Fraser and A. Honneth,4 the categorical inequalities approach developed by C. Tilly5 and the horizontal–vertical inequalities approach developed by F. Stewart.6 Despite their nuances and divergences, these three approaches present a common conceptual limitation, which is to treat fluctuating and dynamic differences as binary and fixed categories: Black–White, male–female, Muslim–Christian, indigenous–mestizo, etc. To overcome this deficit, I develop in the present chapter, starting from the concept of articulation, an analytical matrix according to which differences with reference to gender, ethnicity, religion, race, etc, represent positions or sites of enunciation within hierarchical social relations. Following this line of argument, those who claim for themselves some positionality or attribute a specific positionality to others are struggling to preserve or remove existing social hierarchies. Therefore, differences are not built independently from the social structure

3 Slavery of African and Afro-descendants was introduced in Brazil during the Portuguese colonial rule (1500–1822) and was legally abolished in 1888, 66 years after Brazilian independence. According to Schwartz (2005:55), quilombo, whose original meaning in Mbundu is war-camp, has been one of the words used since the late seventeenth century in Brazil for identifying settlements created by former enslaved persons who escaped from slavery. SB Schwartz, ‘Rethinking Palmares’ in JC Chasteen and JA Wood (eds), Problems in Modern Latin American History. Sources and Interpretations (Lanham, MD, SR Books, 2005) The other word used in the past for naming these settlements and virtually abandoned today is mocambo (‘hideout’ in Mbundu). 4 N Fraser and A Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London, Verso, 2003). In referring here to a paradigm, I do not want to disregard the fundamental differences between Honneth’s and Fraser’s readings on how inequalities and differences interact. The deep disagreements between the two authors are mentioned below. Nonetheless, since the dialogue between the two authors inaugurates a specific field of study, I refer here to a single paradigm. 5 C Tilly, Durable Inequality (Los Angeles and London, University of California Press, 1999) 6 F Stewart, ‘Crisis Prevention: Tackling Horizontal Inequalities’ (2000) 28 Oxford Development Studies 245.

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  37 somewhere before or outside politics. Differences are articulated, politically, in the light of the structure of existing inequalities. This applies, according to the argument developed in this chapter, to the case of the articulation of quilombolas in Brazil: Black communities that have been recently claiming their recognition as quilombolas rest on a long history of struggles as landless peasants, poor rural workers or squatters. The reidentification as quilombola is, therefore, contingent, driven by the new legal and political framework which offers better possibilities to quilombolas than to landless peasants to have access to their land and other social rights. The next section presents and critically discusses the approaches of Fraser, Honneth, Tilly and Stewart to addressing questions of difference and inequality. The following section introduces the articulation model as an alternative to the limitations of the discussed approaches. Then, I seek to apply the articulation framework to analyse the process of contingent articulation of differences, with the purpose of overcoming inequalities, in the recent history of the political constitution of the quilombolas in Brazil. 2.  RECOGNITION–REDISTRIBUTION, CATEGORICAL INEQUALITIES, VERTICAL AND HORIZONTAL INEQUALITIES

First published in German, and in English in 2003, the book Redistribution or Recognition? A Political-Philosophical Exchange, by Nancy Fraser and Axel Honneth, was born a classic. Conceived as a dialogue between the two most renowned contemporary representatives of critical theory, the positions assumed by the two authors in the book are far from consensual. Honneth’s contribution broadly reaffirms the central thesis of his 1994 magnum opus Kampf um Anerkennung,7 according to which ‘all struggles for justice can be understood as struggles for recognition’.8 According to Honneth’s thesis, proper recognition in the three relevant spheres – love, law and social solidarity – is both a necessary and a sufficient condition for the good life. Material and pecuniary issues are not relevant here, since, for Honneth, a minimum of material security is a presupposition of a decent life. In this sense, inequalities do not matter in Honneth’s theoretical reflection in this book, since the supply of material needs is, by definition, given previously.9

7 A Honneth, Kampf um Anerkennung. Zur moralischen Grammatik sozialer Konflikte (Frankfurt am Main, Suhrkamp, 1994). 8 A Franco Elizondo, Theorie der Globalen Gerechtigkeit: Zwischen Anerkennung und Umverteilung (Würzburg, Egon, 2015) 81. All citations in foreign languages were freely translated into English by the author and/or translator. 9 Honneth’s reflection presupposes the existence of a welfare state so consolidated and comprehensive that matters of material survival are simply out of the horizon. Given this assumption and the fact that only a small minority of the world population live in welfare societies, it is surprising and even inexplicable that his work has found a broad empirical use – worldwide!

38  Sergio Costa Accordingly, in Redistribution or Recognition?, Honneth refers to struggles for redistribution, such as union struggles, as disputes over the implementation of social rights or over the modification of the dominant parameters of labour valorisation. In this sense, even distributive conflicts ultimately have for the author a moral and cultural motivation, insofar as such conflicts only occur when expectations of valorisation and social recognition of those who demand better wages or the extension of their social rights are frustrated. Therefore, struggles for redistribution would, above all, be struggles for recognition. Fraser disagrees with Honneth and argues that societies go far beyond an ethical agreement among their members: they are also constituted by systemic imperatives. In this case, injustices linked to the unequal distribution of goods in a society are not exactly a consequence of the lack of recognition: they are, in fact, ‘intrinsic to an order of specialized economic relations whose raison d’etre is the accumulation of profits’.10 Fraser identifies a polarisation in philosophical debates at that time, involving, on the one hand, liberal approaches, such as theories of justice of Rawls and Dworkin, which tend to reduce all claims for justice to redistributive struggles, and, on the other hand, approaches based on the idea of identity, such as the theories of Taylor, Kymlicka and Honneth, which insist on the need for new instruments for recognition of differences, especially cultural differences. Fraser’s particular contribution is the effort to combine these two forms of justice within the conception of justice that the author calls ‘parity of participation’. She argues that ‘justice requires social arrangements that permit all (adult) members of society to interact with one another as peers’.11 For this, certain objective and intersubjective conditions need to be met. The objective conditions imply the provision of material resources that assure all participants in the process independence and voice. The intersubjective conditions refer to the need for ‘institutionalized patterns of cultural value express equal respect for all participants and ensure equal opportunity for achieving social esteem’.12 After this brief and certainly insufficient incursion into a very broad and complex debate, one can infer the answers that both authors offer to the questions that guide this chapter: how do politically relevant differences emerge? How do differences and inequalities correlate? If we accept the primacy of the recognition sphere over other spheres, as Honneth wants, we must conceive gender, ethnic, racial and cultural differences as constituted on a pre-political level, that is, within the moral or cultural sphere. Consequently, political claims for the recognition of differences are reactions against violations and frustrations of expectations anchored on the moral grammar of societies. Fraser, on the contrary, assumes a more nuanced position: in some passages, she refers



10 Fraser

and Honneth (n 4) 35. 36. 12 ibid. 11 ibid

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  39 to gays, women and Blacks as if these categories referred to clear and stable groups, constituted on a pre-political level. At the same time, she emphasises the political and dynamic character of these markers, revealing her poststructuralist inspiration. As for the correlation between differences and inequalities, the positions of the two authors also differ widely. While Honneth proposes to subsume social inequality in difference, that is, in the recognition dimension, Fraser’s dual model preserves the independence of the cultural or moral and economic dimensions of justice. From the separation of these two spheres of justice, she elaborates her argument to combine recognition and redistribution. The second contribution discussed in this chapter, the categorical inequalities approach developed by Tilly, seeks to study inequalities not only among individuals, but also among groups of individuals constituted on the basis of pairs of antithetic categories: Black–White, male–female, etc.13 To the extent to which organisations such as families, corporations and political parties, among others, emulate these categorical distinctions, they become widespread and institutionalised in societies as a whole and contribute to moulding everyday behaviours, strategies and practices of institutions and individuals.14 Despite Tilly’s innovative contribution to research on inequality, his theory of categorical inequalities, viewed from the contemporary state of the art, has several limitations and inconsistencies. First, it assumes a clear classification of groups and individuals around dual categorical pairs, ignoring that the ascriptions and self-identifications always encompass numerous intermediate categories located between the dichotomous poles: Black–White, male–female, national–migrant citizen, etc. In addition, ascriptions and self-identifications, as research on intersectionality teaches us,15 never obey the logic of a single axis of classification, since they combine positions relating to gender, class, ethnicity, race, etc. An additional deficiency in Tilly’s approach is related to the inquiry about the emergence of politically relevant differences and their correlation with inequalities. If Honneth derives inequalities from differences, Tilly commits the opposite error, that is, deduces differences from (categorical) inequalities. For Tilly, the existing categorical pairs not only shape social structures: they are largely learned and assimilated by institutions and individuals and thus also shape social and cultural identities. In this sense, it can be argued that Tilly does not really offer us a model capable of explaining the interaction between differences and inequalities; in his account, differences are only a by-product of inequalities. Having identified these problems both in Honneth’s and Fraser’s approaches as well as in Tilly’s categorical inequalities model, I want to briefly discuss the horizontal and vertical inequalities approach. According to development economist 13 Tilly (n 5). 14 ibid, 22. 15 eg F Anthias, ‘Interconnecting Boundaries of Identity and Belonging and Hierarchy-Making within Transnational Mobility Studies: Framing Inequalities’ (2016) 64 Current Sociology 172.

40  Sergio Costa Frances Stewart,16 individual social positions, in a given social structure, correspond to the sum of vertical and horizontal inequalities. The former refers to the distances between individuals in the social structure considering variables such as income, wealth, etc. Horizontal inequalities refer to social distances between groups of individuals. By focusing on horizontal inequalities, Stewart intends to broaden the conventional perspective, which tends to reduce the analysis of inequalities to economic inequality. Thus, she distinguishes groups not only by using economic factors, but also by applying political, religious, ethnic, racial and gender-specific criteria. Unlike Tilly’s categorical pairs, which are established on the basis of historical persistence, the horizontal inequality approach, in each specific research, seeks the categories that are relevant for explaining social inequalities in a given case. Following this logic, empirical studies carried out in accordance with the horizontal inequalities approach have identified a multiplicity of relevant groups in different regions, as shown by, for example, research conducted by Thorp and Paredes in Peru.17 The authors consider three main groups in their study: Whites, mestizos and Indigenous. According to the authors, in combination with other significant stratification axes – in particular, the place of residence (rural, urban, etc), gender and class – the belonging of an individual to one of these three groups configures his/her position in the Peruvian social structure. The scholars associated with the vertical and horizontal inequalities approach defend a multidimensional perspective while identifying the determining factors for differences to become politically relevant. Nevertheless, concerning a crucial issue for the articulation between differences and inequalities, that is, the differences that define politically relevant groups, the approach tends to economism, abandoning non-economic explanatory variables: To some extent, then, group boundaries become endogenous to group inequality. If people suffer discrimination (ie experience horizontal inequality) they may then feel cultural identity more strongly, particularly if others categorise them into groups for the express purpose of exercising discrimination (thereby creating or enforcing HIs [horizontal inequalities]).18

In the end, the vertical inequalities–horizontal inequalities approach, despite its adaptability to different empirical contexts, presents very similar deficiencies to those of Tilly’s theory when it comes to explaining the emergence of politically relevant differences and their correlation to inequalities. The approach linearly

16 Stewart (n 6); F Stewart, ‘Por qué persisten las desigualdades de grupo? Las trampas de la desigualdad horizontal’ in F Jiménez (ed), Teoría económica y desigualdad social. Exclusión, desigualdad y democracia (Lima, Fondo Editorial de la PUCP, 2010); F Stewart, G Brown and L Mancini, ‘Why Horizontal Inequalities Matter: Some Implications for Measurement’, CRISE Working Paper 19 (Oxford, Centre for Research on Inequality, Human Security and Ethnicity, 2005). 17 R Thorp and M Paredes, Ethnicity and the Persistence of Inequality: The Case of Peru (Basingstoke, Palgrave Macmillan, 2010). 18 Stewart, Brown and Mancini (n 16) 9.

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  41 derives differences from existing inequalities, arguing that socioeconomic hierarchies automatically lead to group identity. Therefore, this interpretation seems to be theoretically simplistic and empirically implausible, since it excludes the contingent character that characterises the correlation between inequalities and differences. That is, inequalities, even if very deep and clearly grouped through racial, ethnic or gender differences, sometimes lead – but sometimes do not! – to populations using these differences to constitute themselves as groups. The assessment of the contributions given by Fraser, Honneth, Tilly and Stewart to understand the tensions between inequalities and differences leads us to the conclusion that none of them offer a satisfactory answer to the questions that more directly interest us in this chapter: how do politically relevant differences arise and what is their correlation with existing inequalities. In the brief review of the models developed so far, we find culturalist responses, as in Honneth’s case, that reduce inequalities to differences, or economistic responses, that subsume differences to inequalities, as in the case of Tilly and Stewart’s contributions. Fraser’s dual model is sophisticated insofar as it treats differences as political constructs. Nevertheless, while defending the existence of two separate spheres of justice – the recognition and the redistribution spheres – the author breaks the close nexus between difference and inequality, contributing little to the understanding of the logical inseparability and the co-constitution processes of these two terms and of the social spheres associated with them. 3.  ARTICULATING DIFFERENCES AND INEQUALITIES

Since the 1990s, poststructuralist and postcolonial theorists have been sharpening their theoretical-analytical tools to illuminate the complex ties that link inequalities and differences. At the centre of these reflections is the concept of articulation, as outlined especially by Homi Bhabha19 and Stuart Hall20 in separate but complementary research programmes. Both authors use the term ‘articulation’ considering its two colloquial meanings: as the act of speaking and as a connection between two elements. Articulation, in these two senses, is contingent. This means that, first of all, it is not possible to define, a priori, what difference is articulated or when and how this will occur discursively, due to the fact that differences do not exist before or beyond discourses: they emerge with their discursive articulation.21 The contingent character of articulation is also found in the second meaning of the term. That is, it is impossible to predict the elements that will be connected discursively and when. Therefore, studying articulations is a way 19 H Bhabha, The Location of Culture (London, Routledge, 1994). 20 S Hall, ‘On Postmodernism and Articulation. Interview’ in D Morley and KH Chen (eds), Stuart Hall. Critical Dialogues in Cultural Studies (London, Routledge, 1996). 21 Bhabha (n 19) 3.

42  Sergio Costa of questioning why certain discourses become relevant to the constitution of certain subjects under certain circumstances, as Hall summarizes: [T]he theory of articulation asks how an ideology discovers its subject rather than how the subject thinks the necessary and inevitable thoughts which belong to it; it enables us to think how an ideology empowers people, enabling them to begin to make some sense or intelligibility of their historical situation, without reducing those forms of intelligibility to their socio-economic or class location or social position.22

Applied to the earlier discussion of the correlation between inequalities and differences, the articulation theory offers powerful arguments for overcoming both culturalism and economism, as well as for criticising the combination of economism and culturalism in Fraser’s dual model. Thus, existing struggles for justice are always a contingent articulation of a certain position in the social structure with a certain discourse on difference. Being contingent does not mean being random or arbitrary. Social researchers are able to reconstruct the circumstances that led a given discourse to find a particular subject in a given context and occasion. However, social analysts are not in the fortunate condition of being able to predict articulations that will form in the future due to the variety of existing structural positions and discourse positions, and also because of the multiplicity of possible combinations between structural and discursive positions. To give meaning to the type of articulation between differences and inequalities proposed here, it is necessary to elaborate a broad definition of social inequality, as developed in other contributions.23 According to this definition, social inequalities correspond to the distances between positions occupied by individuals or groups of individuals in the social structure at the local, national or global level. This definition concerns economic positions (defined by income, wealth, control over resources, etc) and also different levels of empowerment in terms of individual and collective rights, political influence and epistemological capacities.24 The groups that can be considered to describe the inequalities are countless. Individuals distributed over income quintiles and denominated classes or strata, not by themselves, but by scholars who study social stratification, constitute the groups most commonly found – at least in the academic literature. In addition, comparisons between the positions held at a national level mainly by men and women, Blacks and Whites, migrants and national citizens, children, adults and the elderly have become increasingly widespread. 22 Hall (n 20) 142. 23 E Jelin, R Motta and S Costa (eds) Global Entangled Inequalities: Conceptual Debates and Evidence from Latin America (London, Routledge, 2017). 24 S Costa, ‘Entangled Inequalities, State, and Social Policies in Contemporary Brazil’ in M Ystanes and IÅ Strønen (eds), The Social Life of Economic Inequalities in Contemporary Latin America (Cham, Springer, 2017); S Costa, ‘The Neglected Nexus between Conviviality and Inequality’ (2019) 38 Novos estudos 15.

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  43 In this chapter, differences refer to features associated with the multiple groups constituted in the process of articulating (in the sense of enunciating) inequalities, either to defend their own positions in social hierarchies, or to demand a mitigation of inequalities. This by no means implies economistic beliefs, as if differences could emanate from social positions. It is not the structural positions themselves, but their cultural and political assessment – as just or unjust – that counts in the process of articulating differences. Culturalism also has no place in this understanding. It is clear that previous moral or cultural inclinations play an important role in mobilising for or against inequalities; however, such provisions constitute a broad and ever-changing repertoire of possibilities that are contingently articulated according to contextual variables. Empirically, this becomes evident in studies that focus on the recent revival of some ethnic identities in Latin America, for example. Accordingly, the selfidentities claimed by some Latin American rural populations have historically varied, shifting, at least in some cases, under colonial and nationalist-assimilationist pressure, from indigenous or Blacks to mestizo peasants and from peasants to ancestral communities in the last decades.25 These variations cannot be explained simply by shifts in the social structure, since this structure did not change substantially during this period. The variations seem more clearly to reflect the recent spread of multicultural legislation in the region, opening new access channels to land ownership for rural populations – even if treated as ancestral territory – and other group rights.26 This is also the more general political and legal framework in which the quilombola articulation, discussed below, takes place. 4. THE QUILOMBOLA ARTICULATION

The Brazilian constitution of 1988 was promulgated in the context of political euphoria triggered by democratisation, after 21 years of dictatorship (1964–1985). The constitutional text is therefore progressive and open to the extension of different group rights (for indigenous communities, quilombolas and so-called traditional communities). Among the many established guarantees, 25 As shown by de la Cadena for the Peruvian case, processes of ‘de-indigenization’ and assimilation to ‘mestizo’ hegemonic national cultures observed during the consolidation of some national states in Latin America can be neither generalized nor adequately understood without studying the multiple local negotiations of differences. As she brilliantly demonstrates, ‘indigenous mestizos’ in Cuzco, in their attempt to bypass racist oppression, developed an extraordinary ability for performing in everyday situations their adhesion to the national mestizo culture while they maintain, at the same time, their connections to the local ancestral cultures. M de la Cadena Indigenous Mestizos: The Politics of Race and Culture in Cuzco, Peru, 1919–1991 (Durham, NC Duke University Press, 2000). 26 For a more in-depth discussion, see L Gonçalves and S Costa, ‘The Global Constitutionalization of Human Rights: Overcoming Contemporary Injustices or Juridifying Old Asymmetries?’ (2016) 64 Current Sociology 311.

44  Sergio Costa the constitution defines, in Article 68 of the Transitory Constitutional Provisions Act, that: ‘Final ownership shall be recognized for the remaining members of the ancient runaway slave communities who are occupying their lands and the State shall grant them the respective title deeds’.27 According to Arruti’s accurate reconstruction, the quilombo category, used in the constitutional text, is a ‘train-bearer’ of a repressive legislation of colonial origin that, to be effective was made generic and exterior to the ones it concerns, it refers to a kind of historical social formation that, at first, would have disappeared with slavery itself and that was characterised precisely by the pursuit for invisibility vis-a-vis the State.28

Widespread throughout the Americas and the Caribbean, the communities of people who managed to escape slavery had various levels of organisation, from small nomadic groups to complex and stable settlements. As Florentino and Amantino show, the cases in which these settlements lived in complete isolation from the rest of society were very rare.29 Although they sought to establish themselves in areas of difficult access to protect themselves, the communities maintained networks of contacts with enslaved people as well as to peasants and free people who guaranteed them access to weapons, ammunition and other goods they needed to survive. Although quilombolas were the target of harsh repression by the colonial authorities, and even of private militias at the service of the masters, there were cases in which quilombolas signed peace agreements with the colonial authorities: Among the quilombos that certainly reached the stage of peasant communities were those few that managed to establish formal peace treaties with the authorities of some American colonies. In their typical form – as recorded in Colombia, Mexico, Brazil, Cuba, Ecuador, Jamaica, La Española and Suriname – the peace treaties included acceptance of the freedom of the cimarrones, recognition of the territorial integrity of the group and even the sending of provisions to meet their immediate needs. In exchange, the cimarrones were to put an end to all hostility against the colonial power and the plantations, return the slaves that henceforth sought refuge among them, as well as help capture new fugitives.30

According to Arruti, on the occasion of the promulgation of the constitution, there were no groups in Brazilian society clearly claiming to be quilombola. There was a still very incipient mobilisation of rural Black communities in the

27 Brazil, Constitution of the Federative Republic of Brazil, 3rd edn (Brasilia, Câmara do Deputados, 2010 [2008]) 184 (english.tse.jus.br/arquivos/federal-constitution). 28 JM Arruti, ‘Direitos étnicos no Brasil e na Colômbia: notas comparativas sobre hibridização, segmentação e mobilização política de índios e negros’ (2000) 6 Horizontes antropológicos 93, 103–04. 29 M Florentino and M Amantino, ‘Uma morfologia dos quilombos nas Américas, séculos XVI–XIX’ (2012) 19 História, Ciências, Saúde 259. 30 ibid 277.

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  45 states of Pará and Maranhão. Nevertheless, two parallel movements explain the inclusion of Article 68 in the constitution of 1988.31 On the one hand, rural workers’ movements and government agencies identified the existence of different forms of rural land ownership without a clear legal status and that should be regularised. Among these, there were lands acquired or occupied by ex-slaves and on which their descendants continued to live. On the other hand, the quilombos occupied (and continue to occupy) a prominent place in the political repertoire of the Black movement in Brazil, insofar as they symbolise resistance to exploitation and slavery. It is, therefore, the conjunction between the diffuse necessity of land regularisation and the influence of the Black movement that explains the inclusion of the reference to the quilombo remnants in the 1988 constitution. Article 68 unleashed an important set of political mobilisations and of identity reconfigurations in those rural communities that had a significant Black population. Many of them, in part assisted by anthropologists, religious leaders and activists from the newly constituted quilombola movement that started to develop, begin to identify, in Article 68, the possibility of resolving land conflicts and conflicts of legal guarantee of ownership of the land on which they lived. In 2003, a presidential decree gave the definitive form for the implementation of the regularisation of the lands of the quilombo communities. According to the decree, the criterion of recognition of communities is self-identification, that is, it is the beneficiaries themselves who define themselves32 as quilombo communities.33 The decree also defines that the titling of the quilombola lands benefits not individuals, but the representative association of the community in question. In the decree, as Arruti observes,34 the land gains a territory

31 Arruti (n 28) 103–04. 32 CONAQ, the Brazilian Confederation of Quilombola Communities created in 1996, estimates the existence of 6,000 Quilombola communities in Brazil, including 16 million people, which would represent 7.6% of the Brazilian population (210 million). CONAQ, ‘Com 5 milhões de idosos, quilombolas ainda aguardam ações para conter coronavírus’ (2020) http://conaq.org.br/noticias/ covid-19/ (last accessed 29 January 2022). Since its creation the Quilombola Confederation has contributed to connect the Quilombolas communities in the whole country and to promote solidarity alliances between them and between these and other social movements and civic organisations. 33 The definition of the self-recognition criterion, instead of an anthropological report, to define whether a group was a quilombo remnant or not represents an important step in the process that French calls the ‘post-legislative negotiation’ of Article 68. JH French, Legalizing Identities. Becoming Black or Indian in Brazil’s Northeast (Chapel Hill, University of North Carolina Press, 2009) 6. The criterion of self-recognition is in line with the 169th Convention of the International Labor Organization (ILO) and the interpretation of the Brazilian Association of Anthropology, which in 1995 created a special working group called ‘Terra de Quilombo’ (Quilombo Land), insisting on the need to ‘incorporate the point of view of the social groups that, in their actions, seek to validate the legal right granted by the Federal Constitution’. EC O’Dwyer, ‘Os quilombos e as fronteiras da antropologia’ (2005) 19 Antropolítica 91, 94; see also EC O’Dwyer, ‘Etnicidade e direitos territoriais no Brasil contemporâneo’ (2011) 42 Iberoamericana 111. 34 JM Arruti, ‘Políticas públicas para quilombos. Terra, saúde e educação’ in M Paula and R Heringer (eds), Caminhos Convergentes. Estado e Sociedade na Superação das Desigualdades Raciais no Brasil (Rio de Janeiro, Heinrich Böll Stiftung, 2009) 85.

46  Sergio Costa connotation: it includes not only the land directly occupied at the specific time of the titling, but all the spaces that are part of its uses, customs and traditions and/or that possess the environmental resources necessary for its maintenance and the historical reminiscences that allow the perpetuation of memory. In 2004, the Brasil Quilombola Programme was created, which articulated the actions of 23 ministries and federal agencies that had been developing actions directed to quilombolas. This assistance includes regularisation of access to the land and support in the areas of education, health, housing, local development, etc. According to the update, completed in January 2022 by the Palmares Foundation, responsible for the certification of the quilombos, up to that date there were 3,495 certified quilombola communities, including a population of about 1.2 million people, most of them living in the states of Maranhão, Bahia, Minas Gerais and Pará.35 Since Michel Temer assumed the presidency of Brazil in 2016, the situation of the Brasil Quilombola Programme and the regularisation of the quilombola lands have become more uncertain, due to the disarticulation of ministries and agencies dedicated to the issue, as well as the decision of the Civil Office in April 2017 that suspended the regularisation processes. The argument used to support the suspension was that the titling generated legal uncertainty, since the Direct Action of Unconstitutionality, filed by the DEM party (then PFL) in 2003, was still in the process being judged by the Federal Supreme Court (Supremo Tribunal Federal, STF). The party questioned the rites of regularisation and the criterion of self-identification of quilombos (Fellet 2017). In February 2018, the STF rejected, with only one dissenting vote, the action of the DEM, affirming the constitutionality of the process of recognition of quilombos and accepting the criterion of self-identification (Fellet 2018). Despite this judicial victory for the quilombolas, the right-wing political shift in Brazil, culminating with the impeachment of the elected president Dilma Rousseff in 2016 and with the election of the far-right Jair Bolsonaro government in 2018, has led to a backlash in the legal protection of quilombolas. The Bolsonaro government has a double motivation for delegitimizing quilombolas revindications. On the one hand, quilombolas are a preferential target in ideological war of the extreme right against minorities. According to these discourses, group rights granted to quilombolas are policies adopted by leftist governments to construct Blacks as victims at the expense of meritocratic principles. Sérgio Camargo, ‘a right-wing black, anti-victimist, enemy of political correctness, and free’, as he describes himself on Twitter, was nominated by Bolsonaro to chair the Palmares Foundation, and is supposed to lead the implementation of policies designed to reinforce quilombola rights. However, he is,

35 Fundação Palmares, Certificação Quilombola (2022) www.palmares.gov.br/?page_id=37551 (last accessed 29 January 2022).

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  47 in fact, a sort of informal coordinator within Bolsonaro’s government of public campaigns against ethnic minority rights: Victimism is today the biggest enemy of the black man. It causes him to become an oppressor of himself. Don’t blame the ‘privileged white man’ for your mistakes and failures. Go for the fight! Blacks are as capable as anyone else, not an underdog.36

Besides this ideological motivation, the stagnation of land regularisation processes and the deactivation of assistance programmes for quilombolas are also economically motivated, since important supporters of Bolsonaro’s government in the parliament represent the interests of the agribusiness and mining lobbies interested in expanding their activities in quilombola – and Indigenous – territories.37 Anthropologists José Mauricio Arruti38 and Jan Hoffman French39 have studied the process of land regularisation of quilombola lands in the town of Mocambo, in the state of Sergipe, in two very different but equally solid books. The case is very instructive to demonstrate how the constitutional change introduced by Article 68 of the Brazilian constitution triggers at the local level the construction of a new ethnicity. The history of the Mocambo community is inseparable from the trajectory of the Xocó indigenous community, its neighbour. Both groups had lived, for many decades, in an unstable land situation and were permanently threatened with expulsion from the lands they occupied. In the 1940s and 1950s, inhabitants from both communities, Mocambo and Xocó participated together as rural workers in peasant mobilisation movements in the region.40 Many families also reflected intermarriage between the communities, making it difficult to establish ethnic or cultural boundaries between the two groups. From the 1970s and 1980s, the indigenous Xocó, supported by the Missionary Indian Council, an entity linked to the Catholic Church, were more clearly assuming their indigenous identity, which allowed them, through the prerogatives offered by indigenous law, to regularise land ownership of the territories they occupied.41

36 Sérgio Camargo on Twitter, 20 June 2020, twitter.com/sergiodireita1/status/1270358747634962438. 37 FD Firmiano, ‘“Quem lamenta os estragos – se os frutos são prazeres?” O bloco de poder agro do governo Bolsonaro’ (2021) 28 Estudos Sociedade e Agricultura 364. 38 JM Arruti, Mocambo: antropologia e história no processo de formação quilombola (Bauru, Edusc, 2006). 39 French (n 32). 40 According to French, the members of the two communities ‘have been identified and have selfidentified over the years in a variety of ways: as camponeses (peasants), trabalhadores rurais (rural workers), caboclos (mixed race with indigenous ancestry), negros (blacks), católicos (Catholics), pobres (poor folk), sertanejos (backlanders), sergipanos (residents of Sergipe), nordestinos (northeasterners), meeiros (sharecroppers), posseiros (squatters), índios (Indians), remanescentes (descendants of fugitive slaves), and quilombolas, sometimes simultaneously and other times sequentially, as the state, its agents, the people themselves, and their advisers took up or ignored one or another of these sociolegal identities’. French (n 32) 13. 41 ibid 49.

48  Sergio Costa Meanwhile, the situation of the population of Mocambo remained precarious. It was at this moment that the pastoral agents working in this community, attentive to the progress of land regularisation of the remaining quilombo lands in other Brazilian regions after the constitutional prerogative introduced in 1988, sought to convince the residents of Mocambo of the advantages of this legal option. However, this alternative was, at first, rejected by the community, since the idea of identification as ‘quilombo remnants’ was not part of the kind of representation that Mocambo families had or would like to produce about themselves. The resistance of these families to the suggestion to think of themselves as ‘quilombolas’ was so great that the possibility of changing the name of the community from ‘Mocambo’ [synonym of quilombo] to ‘Mundo Novo’ [New World] was discussed.42

The legal advantages, however, prevailed, leading the residents of Mocambo, after much discussion and political dispute, to publicly assume themselves as a remaining quilombo community. This political reconversion was accompanied by the expansion of external interlocutors and the introduction of new cultural practices. Anthropologists, activists from the quilombo remnants movement and state agents involved in titling the lands begin to often visited Mocambo. Internally, the memory of resistance to slavery and racial oppression has been (re)discovered, through the selection and resignification of dances and songs traditionally sung in the community, as documented by French.43 A theatre play performed by the adolescents of the community and presented each year during the commemoration of the community’s recognition as a quilombo community, a process completed in 2000, also played a fundamental role. Over the years, the play, which tells the story of a local family, was modified until it became ‘the foundational narrative of those in Mocambo who came to identify themselves as black people descended from fugitive slaves’.44 The role of cultural and political mediators in this process is evident: Brazilian Black movements, political activists, the Brazilian Association of Anthropology and state agencies contribute to give the form and the meanings that the legislation has been acquiring over time. At the local level, church-based advisers, anthropologists, political activists and state officials allow the law to be interpreted and translated to the potential target group. The process of introducing legislation to recognise remaining quilombo territories – both when viewed from the perspective of political negotiations for its implementation and when reconstructed from its local impacts in Mocambo – provides rich material for the study of interrelations between group rights, inequality, difference and politics both at domestic and international level. First, Brazilian legislation was developed in the context of the expansion of multiculturalism in the international agenda and was reformulated in 2003,



42 Arruti

(n 28) 110. (n 32) 149 et seq. 44 ibid 154. 43 French

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  49 in consonance with the criteria of the 169th Convention of the International Labour Organization.45 Transnational references are also observed in the political and cultural repertoire that guides the formulation of the law and its application even in the local context. Allusions to the African diaspora, to the global history of modern slavery, and to solidarity and transnational resistance to racial oppression are recurrent both in the political repertoire of the social movements involved in the process and in the very vocabulary used by the Brazilian government programmes directed to quilombola communities. The role of new group rights in inducing ethnic reidentification of the involved populations is also easily identifiable. Groups that previously identified themselves as landless peasants, rural workers or squatters rediscover themselves as quilombola. The nexus between social inequality and cultural difference is obvious. Accordingly, quilombolas belong to the most underprivileged population groups in Brazil. This status is due, first, to the inequalities referring to racial ascriptions, since Blacks in Brazil continue, more than 130 years after the abolition of slavery, to occupy the lowest places in the social hierarchies, with regard to income and wealth, but also to asymmetries of power and of accessing rights. Added to this are the disadvantages associated with territorial inequalities, since the quilombola communities, originally founded by people who fled slavery, are located in more remote areas which are poorly provided with public services: The Quilombola population is considered a vulnerable population, with low income, low level of [formal] education, and difficulties in accessing existing public policies, especially due to the geographic location of their homes, characteristics that predispose the lack of access to health services.46

The situation of deprivation of the right to land and other basic needs ultimately motivated Brazilian citizens to claim the protection of the state as quilombola. In seeking to improve their living conditions not as individual citizens, but as members of a specific community, quilombolas accept that the eventual satisfaction of their claims will occur through the provision of collective rights and not individual rights. The main collective rights claimed are synthesised by CONAQ, the quilombola confederation: The objectives of CONAQ is to fight for the guarantee of collective use of the territory, for the implementation of sustainable development projects, for the implementation 45 Alongside the 169th ILO convention various international legislations, jurisprudences and institutional transformations contributed to foster the adoption of anti-racist policies and in favour of quilombolas in Brazil. Among these are different decisions by the Inter-American Court of Human Rights in favour of Afro-descendants, the large mobilisations around the Durban UN Conference Against Racism 2001, and the reconfiguration of multilateral organisation programmes such as the World Bank that, starting in the late 1990s, began to adopt policies in defence of ethnic minorities. S Costa, ‘Freezing Differences. Law, Politics, and the Invention of Cultural Diversity in Latin America’ in K Araujo and A Mascareño (eds), Legitimization in World Society (Farnham, Ashgate, 2012). 46 AN Mota et al, ‘A Look at Vulnerability: Analysis of the Lack of Access to Health Care for Quilombolas in Brazil’ (2021) 31 Journal of Human Growth Development 302, 306.

50  Sergio Costa of public policies taking into account the organization of quilombo communities; for quality education that is consistent with the way of life in the quilombos; for the protagonism and autonomy of Quilombola women; for the permanence of young people in the quilombo and above all for the common use of the Territory and of natural resources in harmony with the natural environment.47

5. CONCLUSIONS

In view of the identity politics adopted not only by social movements, but also by the state as a guideline for public policies, discussion of the correlation between inequality and difference, a theme that has accompanied sociology since its establishment as a professional field, is currently not only an analytical necessity but also an urgent political task. This becomes particularly evident in the study of the articulation of quilombolas in Brazil. Thus, the case shows that paradigms based either on the primacy of cultural identifications or on the precedence of socioeconomic conditions fail in their attempts to explain the political mobilisation of minorities to acquire rights. Instead, the focus must turn to the dynamic combination of social inequalities and cultural differences in the political constitution of minority groups. To develop this argument, I first sought to examine three different paradigms that continue to influence the academic and political debate about the tensions and complementarities between inequality and difference: the recognition–redistribution paradigm, the categorical inequalities approach and the horizontal–vertical inequalities approach. I sought to show that none of these contributions offer adequate answers to two central questions within this broad debate: when do differences politically matter? And how do inequalities and differences correlate? The categorical inequalities approach and the horizontal– vertical inequalities approach do not seek to answer the first question, since they consider it as a historical fact. Regarding the second question, both approaches are structuralist, that is, they affirm that inequalities determine the perception and the constitution of differences, as if people treated unequally, sooner or later, discover the inequalities that unite them and constitute them as a group and as political actors. The answer found in the recognition–redistribution paradigm for the two questions is more nuanced. While Honneth asserts that differences that count politically are those inscribed in the deeper moral grammar of a society or specific group, Fraser is open to accepting the contingent character of the politicisation of differences, similar to the way I advocate in this chapter. Regarding the second question, Honneth’s answer is clear: differences overlap, logically and

47 CONAQ, ‘Quem Somos’ (2022) http://conaq.org.br/nossa-historia/ (last accessed 10 March 2022).

Politicising Differences, Fighting Inequalities: Quilombolas in Brazil  51 ontologically, with inequalities, that is, inequalities are understood only as asymmetries in the levels of recognition of differences. Fraser’s answer is twofold. She distinguishes two spheres of justice, that of recognition and that of redistribution, separating differences from inequalities. The interpretation based on the theory of articulation, adopted in the present chapter, diverges diametrically from Fraser’s reading. It is postulated that difference and inequality are two sides of the same coin. Both correspond to the way individual or collective subjects position themselves in the world. In a way, difference is the discursive articulation of the position of the subjects within the social hierarchies. As a product of discursive articulations, these positions are always contingent and changeable. Under the terms of this chapter, differences become politically relevant insofar as the historical context and conjunctural circumstances make it possible to phrase through them the desire to preserve or abolish existing hierarchies and inequalities. This understanding also guides the answer to the question about the correlation between inequality and difference: both constitute one another, without precedence over one another. Applied to study the political emergence of quilombolas as a minoritarian group in Brazil, the articulation model implies first recognising the contingent character of the politicisation of differences. Remember that contingent does not mean arbitrary or random. That is, the existence of quilombolas, throughout the history of Brazil, is a fact documented by historiography and inscribed in the collective memory of many communities. However, the politicisation of the quilombola difference – and not another possible difference, such as being Black, a rural worker, a landless peasant, poor, etc – could only emerge in the context of changes in the Brazilian political context and in the international and national legal framework as well as because of the actions of brokers, such as the church, activists, etc. The case makes particularly clear the correlation of co-constitution of difference and inequality. As a relation, inequalities can be formulated in very different ways: inequalities between 1 per cent of the population, the richest, and the remaining 99 per cent as articulated by the Occupy movement; inequalities between men and women, as feminist movements put it; inequalities between the Global North and the Global South, as anti-globalisation movements prefer. In the specific case of the quilombolas, the inequalities between landowners and those who did not have duly titled lands were historically articulated in several ways: peasants versus farmers, poor against rich, squatters against invaders, and so on. The emergence of the quilombola struggles, as shown in the abovementioned case of Mocambo, distinguished quilombolas from farmers, but also from indigenous and other poor peasants, from whom quilombolas previously did not distinguish themselves. The process of stressing the quilombola difference in this particular community is historical and contingent, that is, it is not a mere product of inequality in access to land or to other resources, but of the circumstantial articulation between discourse and subject, inequality and difference within a specific political and legal setting. In the context of the right-wing backlash currently observed in Brazil, the articulation

52  Sergio Costa as quilombola both within the communities and also in framework of CONAQ, the Brazilian confederation of quilombolas, have helped Black rural communities to organise their political struggles and to build alliances with other social movements against Bolsonaro’s government and other far-right actors.

4 Collectivising Human Rights or Scales of Collectivisation: Andean Constitutionalism and other Juridical Points of Departure JESSIKA EICHLER1

C

ollective rights could certainly be regarded as the latest addition to an ever-evolving human rights framework that remains focused on the individual, globally speaking; they also find resonance in regional frameworks and domestic constitutionalism to some extent. Classical human rights theory and its categorical dividing lines between first (eighteenth/nineteenth-century Europe), second (twentieth century) and third generation (late twentieth/twenty-first century)2 – with collective rights constituting this last generation – are emblematic of the importance of temporal criteria that define such categorisation. Some may argue dividing lines have become blurred in the course of the twenty-first century, attributing comparable obligations to any human rights generation,3 while being generally guided by the respect, protect, fulfil framework applicable to all rights without exception. We may want to pay attention to the steadily judicialised nature of collective rights in the light of these developments. On a different note, collective rights merit particular mention here, as these have proven especially difficult to enforce.4 Some may even say that subjects lack any clear definition, damages remain unattributable,

1 The author would like to thank Miodrag Jovanović and Eugenia Relaño Pastor for their invaluable constructive comments. 2 K Vasak, ‘A 30 Year Struggle: The Sustained Effort to Give the Force of Law to the Universal Declaration of Human Rights’ (1977) UNESCO Courir 3; C Tomuschat, Human Rights: Between Idealism and Realism (Oxford, Oxford University Press, 2014). 3 eg Maastricht Guidelines on Violations of Economic, Social and Cultural Rights; CESCR General Comments no 23 on work, no 14 on health, no 13 on education, no 7 on housing. 4 L Westra, Human Rights: The Commons and the Collective (Vancouver, University of British Columbia, 2011).

54  Jessika Eichler and provisions are founded on broadly or ill-defined legal claims. Conceptually speaking, similar conclusions may be reached as far as group rights5 or groupdifferentiated rights6 are concerned. Yet more courageous voices have termed such groups ‘co-nations’,7 giving rise, in turn, to novel legal regimes. These may resemble the new forms of plurinational constitutionalist claims emerging in the Andes.8 This chapter departs from a rather optimistic reading of relevant legal codes and jurisprudence, deriving collective rights inductively from – albeit hesitant – judicialisation and formalisation processes, at least seen from a positivistic hard-law perspective on the law. It also builds deductively on key legal principles that will guide the debates, underlying procedural considerations, for instance, that give rise to basic participatory rights. Indigenous peoples’ rights in international law prove emblematic of such ‘participation turn’, relying on the ILO Convention No 169 framework established as early as 1989 and the 2007 UN Declaration on the Rights of Indigenous Peoples with its emphasis on free, prior and informed consultation and consent. In a similar manner, cultural, ethnic, linguistic and religious minorities as well as peasant rights are indicative of the constraints of the law, limiting their articulation to soft law instruments.9 Soft law norms may certainly be criticised on grounds of, inter alia, absent or insufficient state commitments; the ambiguous nature of implementing obligations; or the question of (un)clarity regarding competence or authority of interpretation. At the same time, soft law norms have assumed considerable inspiring potential in the field of indigenous peoples’ rights both as they manifest themselves in international legal norms10 and domestic constitutionalism.11 Potential certainly also lies in what we may call ‘imaginary categorisations’, either inspired by neighbouring regimes or as they simply arise in the form of

5 Wenzel ‘Group Rights’, Max Planck Encyclopedia of International Law (2011); M Barelli, Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples (Abingdon, Routledge, 2016). 6 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1996). 7 TH Malloy, National Minority Rights in Europe (Oxford, Oxford University Press, 2009). 8 R Yrigoyen Fajardo, ‘The Panorama of Pluralist Constitutionalism: From Multiculturalism to Decolonisation’ in C Rodríguez-Garavito (ed), Law and Society in Latin America: A New Map (Abingdon, Routledge, 2016); R Gargarella, ‘Latin American Constitutionalism: Social Rights and the “Engine Room” of the Constitution’ in Rodríguez-Garavito (ibid). 9 See in particular 1992 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities; 2018 UN Declaration on the Rights of Peasants and Other People Working in Rural Areas. 10 F Gómez Isa, ‘The Role of Soft Law in the Progressive Development of Indigenous Peoples’ Rights’ in S Lagoutte, T Gammeltoft-Hansen and J Cerone, Tracing the Roles of Soft Law in Human Rights (Oxford, Oxford University Press, 2016). 11 C Charters and R Stavenhagen, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen, IWGIA, 2012); J Tockman, ‘Eliding Consent in Extractivist States: Bolivia, Canada, and the UN Declaration on the Rights of Indigenous Peoples’ (2018) 22 The International Journal of Human Rights 3.

Collectivising Human Rights or Scales of Collectivisation  55 abstract constructs. Indeed, neighbouring regimes may provide first points of departure, such as in the case of person-specific or group rights orders,12 women, children or the elderly being illustrative here. Collective complaints procedures give further weight to such argument. Specific violations such as infringements upon the freedom to associate and assemble may also be indicative of a distinct collective dimension. Due to their only hesitant codification, collective rights may have sought responses in theoretical debates13 with more ease, having spurred imaginary categorisation. As an example, solidarity rights, including the right to peace, to a safe and healthy environment and to development, so-called thirdgeneration rights,14 have come to be considered as manifestations of collective rights. Uncertainties, however, remain, such as those relating to respective rights holders, duty bearers and the substance of these rights.15 Collectivity broadly speaking may be imagined in many senses, as a connecting social glue undergirding protest action, as a demonstration of minority identities, or as a channelling instrument reaching out to the deliberative powers of the state. Collective rights may also be considered a response to the Marxist or communitarian critique of individual rights; some would consider the social or communal dimension of rights holdership decisive in that regard.16 The chapter conveys a multiscale view on processes of collectivisation in a comparative manner, and explores the very forms collective (human) rights have been assuming by relying on different contextualisations and jurisprudential debates; it ultimately proposes a few scales of collectivisation that shall help us to categorise or level collective rights in other contexts or as relating to other rights holder groups. This chapter strives to explore both theoretical and empirical dimensions of collective rights, departing from an appreciation of how collective rights have found their way into the multiscale landscape of legal orders (section 1) including judicial dialogue (section 2), followed by procedural debates with a dedicated focus on collective standing (section 3). We similarly hope to reach an understanding on the multiplicities of collective rights, guided by a comparative analysis of different forms of collectivisation. With the purpose of drawing

12 P Jones, ‘Group Rights’, Stanford Encyclopedia of Philosophy (2016); M Bakalova and B Blagoeva, ‘The Concept of Group Rights from Universalist Particularist Perspective and Beyond’ [2021] Godishnik na UNSS 1. 13 eg M Jovanović, Collective Rights: A Legal Theory (Cambridge, Cambridge University Press, 2012); EJ Mitnick, Rights, Groups, and Self-invention: Group-Differentiated Rights in Liberal Theory (Aldershot, Ashgate, 2006); A Buchanan, ‘The Role of Collective Rights in the Theory of Indigenous Peoples’ Rights’ (1993) 3 Transnational Law and Contemporary Problems 1; Kymlicka (n 6); R Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley: University of California Press, 2003); D Sanders, ‘Collective Rights’ (1991) 13 Human Rights Quarterly 3. 14 Tomuschat (n 2). 15 ibid. 16 R Cruft, SM Liao and M Renzo, Philosophical Foundations of Human Rights (Oxford, Oxford University Press, 2015).

56  Jessika Eichler comparative conclusions, we will be measuring their effectiveness, establishing scales while uncovering their potential in setting progressive standards (section 4). In that context, we also approach collective rights by understanding the former as a sui generis order, contrasting this view with a portrayal of collective rights that is subjected to or forms a constituent part of regressive human rights developments, hence diminishing the significance of collective rights over time. 1.  FORUMS OF CATEGORISATION: THE JUDICIALISATION OF COLLECTIVE RIGHTS IN THE MULTISCALE WORLD OF LEGAL ORDERS

As apparent from the above, collective rights do not enjoy universal recognition; this may concern questions of definition or criteria, as well as the challenging issue of implementation. Rather, just as individual human rights, particular obligations are qualified by the respective legal (constitutional) order(s) in which they eventually arise. Indeed, the existing literature on the matter is largely focused on the legal or political theoretical nuances inherent to collective rights more broadly speaking.17 Let us be reminded of the distinction that is commonly drawn between minority rights regimes or other group rights and collective rights here, possibly owing to their roots embedded in state jurisdictions or regional frameworks only.18 To start with, collective rights need to be understood in the light of dominant legal orders, particularly those oriented towards the protection of individual rights.19 In that sense, collective rights certainly represent a form of normative exceptionalism, materialising mostly sporadically in the law and in practice. Indeed, collective rights frequently assume a limited, responsive role, in preventing collateral damage caused by mega projects, for instance. Yet other relevant rights merely gain meaning as a corollary of such incidence-specific legal action, including but not limited to cultural and spiritual rights, the right to health, participation and consultation, or physical and psychological integrity.20 Certainly, tribute needs to be paid to the Inter-American Court of Human Rights (IACtHR) in creatively applying its interpretative powers in that regard. Beginning with a decision on massacres affecting indigenous peoples

17 eg Kymlicka (n 6); Jovanović (n 13); Buchanan (n 13); J Tully, Public Philosophy in a New Key, vol I: Democracy and Civic Freedom (Cambridge, Cambridge University Press, 2008). 18 eg A Verstichel, A Alen, B de Witte and P Lemmens, The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Cambridge and Antwerp, Intersentia, 2008). 19 J Anaya, Indigenous Peoples in International Law (Oxford, Oxford University Press, 2004). 20 IACHR (Inter-American Commission on Human Rights), Indigenous and Tribal Peoples’ Rights over their Ancestral Land and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System (Washington, DC, Inter-American Commission on Human Rights, 2010).

Collectivising Human Rights or Scales of Collectivisation  57 in particular (see Aloeboetoe v Suriname), the Court would actively deal with military regimes, specific targeting policies or violations occurring as a result of internal armed conflicts. Soon, the Court would also become acquainted with indigenous collective land claims by giving voice and effect to these demands (see especially Mayagna (Sumo) Awas Tingni v Nicaragua). Albeit relatedly, the IACtHR was to concern itself with questions of participation, including electoral representation (Yatama v Nicaragua). Similarly, the Court would pronounce itself on broader contexts in that regard, such as protest action and indigenous representation in the public space (Norín Catrimán v Chile), also as this may occur in the context of territorial defence (eg Escué Zapata v Colombia). Following a form of legal tradition (precedent) taking its first steps with the Awas Tingni judgment, the Court would rule on a few relevant cases as far as indigenous ‘ancestral property rights’ were concerned, including its wider implications for exercising cultural rights (eg Yakye Axa v Paraguay). This would also affect a person’s integrity generally where this was being jeopardised by measures affecting the food and health of the communities concerned (eg Sawhoyamaxa v Paraguay). The right to land, including land titling processes, participation, consultation and consent, certainly constitutes a central concern of the Court (see also Moiwana v Suriname, Saramaka v Suriname, Xákmok Kásek v Paraguay, Kichwa Sarayaku v Ecuador and Xucuru v Brazil). Also broadly speaking, the Court does not miss out on the opportunity to specify land-related obligations, paying due regard to indigenous particular conceptualisations of land and resources (Kuna Peoples of Madungandí and Emberá v Panamá). Only recently, the Court extended its protective umbrella to include indigenous environmental rights in their own terms (Lhaka Honhat v Argentina). At the domestic level, collective rights have eventually found recognition in what could be called a new constitutional age, referred to as ‘pluralist constitutionalism’.21 The so-called ‘horizon of pluralist constitutionalism’ broadly embraces the following main phases, a ‘period of multicultural constitutionalism’ (1982–1988: Canada, Guatemala, Brazil, Nicaragua), ‘pluricultural constitutionalism’ (1989–2005: Colombia, Mexico, Peru, Paraguay, Argentina, Venezuela) and ‘plurinational constitutionalism’ (2006–2009: Bolivia, Ecuador), oriented towards a gradual alienation from classical liberal constitutionalism while decolonising the state and its institutions. These periods of pluralist constitutionalism allow some insights into the differing degrees of recognising collective rights across history, with the first main phase merely acknowledging cultural diversity and the ‘multicultural and multilingual configuration of society’ without embracing legal pluralism in Canada, Guatemala, Nicaragua and Brazil. Illustrative may be its critique of the ILO No 107 framework and its general embracement of the right to cultural identity.22 A second phase



21 Yrigoyen 22 ibid.

Fajardo (n 8).

58  Jessika Eichler introduces the individual and collective right to identity and cultural diversity, yet also broadly acknowledging the ‘multi-ethnic and multicultural’ as well as ‘pluricultural’ nature of the state without, however, its complete rebuilding – illustrative being the cases of Colombia, Mexico, Paraguay, Peru, Bolivia, Argentina, Ecuador and Venezuela. In the present phase, numerous indigenous movements were formed or alliances strengthened against the background of an increase in neoliberalism including the involvement of transnational companies; the first attempts to judicialise consultation, participation and legal pluralism were made as a response.23 The third phase, by contrast, demonstrates a firm commitment to, inter alia, social rights, a decolonising project, legal pluralism and eventually to establishing parity between indigenous and ordinary jurisdictions in Bolivia and Ecuador.24 Social rights were explicitly taken up, including environmental rights, the ‘good life’25 or broader autonomies; the new constitutions would also vividly embrace a decolonising approach, thereby also fostering indigenous presence in the very constituency of the state.26 In other words, we witness a steadily growing eagerness for alienation from classical liberal constitutionalism and its somewhat passive positioning vis-a-vis collective rights. A systematic examination of Latin American constitutionalism – the constitutional home of collective rights – traces the ideological move from the liberal-conservative compact starting with the formal declaration of independence throughout the region (1850–1950) to social constitutionalism (1910–1950).27 Social constitutionalism would do justice to a new spirit of social change that gave voice to the working class as ‘decisive political and economic actors’, eventually culminating in the adoption of a framework favouring multiculturalism and human rights (1950–2010) as a response to military dictatorships and the neoliberal turn.28 Indigenous movements too have broadly come to be considered a driving force behind the judicialisation of collective rights on the global scale.29 Social rights, however, have failed to be judicialised any further, and remain far from touching upon the state’s organisation of powers.30 As argued previously, collective rights merely assume a responsive function, reacting to the temporal emergencies arising with, for instance, extractive projects, hence leaving questions of social justice largely untouched.

23 ibid. 24 ibid. 25 Referring to indigenous cosmovisions; ‘good life’ or ‘good living’ is also known as buen vivir or vivir bien, sumak kawsay, suma qamaña, ñande reko or küme morgen. 26 ibid. 27 Gargarella (n 8). 28 ibid. 29 Charters and Stavenhagen (n 11). 30 Gargarella (n 8); see also J Eichler, ‘“Migrating Recognition” or “Constitutionalism Reversed”: Relating Andean Plurinational Constitutionalism and European Integration Politics’ (2020) 42 Human Rights Quarterly 4.

Collectivising Human Rights or Scales of Collectivisation  59 In that sense, it might not come as a surprise that those constitutional frameworks most open towards, or even apt to, judicialising collective rights in their integrity – so as to include the social dimension – have built on strong left-wing support, meriting further examination here. Emblematic may be the cocalero indigenous movement MAS in Bolivia leading to eventual constitutional reforms in 2006–2009.31 Similar indicators may be found in Ecuador’s key constitutional moment that built on left-wing support for indigenous rights in 2008,32 or the antiPiñera spirit of social protests in Chile, eventually resulting in a constitutional reform process that began in 2019 with considerable indigenous participation including a dedicated indigenous quota ensuring decision-making capacities in the constituent assembly.33 In neighbouring Venezuela, a quota system was established guaranteeing indigenous seats in parliament as was stipulated by the State’s Bolivarian constitution under the Chávez government in 1999.34 Indeed, the level of involvement and leverage exercised by indigenous peoples in the function of the state’s legislative and executive powers could be assessed on the basis of the opportunities provided by a given constitutional framework for minority groups to exercise passive and active suffrage. Elsewhere, collective rights have seemingly found expression in the judicial branch of the state. Again, Bolivian and Ecuadorian constitutionalism merit particular mention, both making important concessions for indigenous laws and legal systems to be recognised constitutionally.35 2.  COLLECTIVISATION THROUGH SUPRANATIONAL JUDICIAL DIALOGUE OR AS ITS MANIFESTATION

Collective rights may also be reproduced in the interaction of legal orders, the Inter-American and African systems being emblematic of such encounters. It could be argued that the African Commission has proved somewhat better equipped in comparison, drawing on the Charter’s ‘explicit recognition of collective rights and incorporate[ing] extra-regional sources of international law’ in its Article 60.36 The African human rights system thereby benefits from 31 S Bernot, Die verfassungsrechtliche Anerkennung indigenen Rechts, Rechtspluralismus und Menschenrechte: Untersicht an den Beispielen Südafrika und Bolivien (Baden-Baden, Nomos, 2016). 32 A Acosta, ‘El Buen Vivir como Alternativa al Desarrollo: Algunas Reflexiones Económicas y No Tan Económicas’ (2015) 52 Política y Sociedad 2. 33 J Eichler and P Barnier-Khawam, ‘Criminalization, Securitization and other Forms of Illegalizing Indigenous Contestations in Chile: Responses from Constitutional Law and Inter-American Jurisprudence on Mapuche People’s Rights’ (2022) 13 Journal of Human Rights Practice 2. 34 K Krzywicka, ‘Situación Jurídica de los Pueblos Indígenas en Venezuela. Dilemas de Representación y Participación’ [2011] Revista del CESLA 14. 35 A Barrera, ‘Turning Legal Pluralism into State-Sanctioned Law: Assessing the Implications of the New Constitutions and Laws in Bolivia and Ecuador’ in D Nolte and A Schilling-Vacaflor (eds), New Constitutionalism in Latin America: Promises and Practices (Farnham, Ashgate, 2012) ch 18. 36 M Talbot, ‘Collective Rights in the Inter-American and African Human Rights Systems’ (2018) Georgetown Journal of International Law 49.

60  Jessika Eichler a comparative advantage relying on ‘structural elements of the Charter’.37 In fact, the Charter embraces an understanding that considers the individual as closely connected to their community rather than being regarded as an isolated individual.38 Relatedly, it was stated elsewhere that ‘the African conception of rights is communal’,39 impacting also on relations of ownership, which is attributed to the group, while the individual would enjoy rights of possession.40 It further approaches the term ‘peoples’ widely, both in the colonial sense of liberation, hence referring to states and to indigenous peoples who had gained voice through liberation movements in such states.41 While the Charter itself remains rather silent on definitional issues, the Commission’s jurisprudence reveals a steadily growing commitment towards peoples’ rights,42 including its dedicated implications for minority rights, also procedurally speaking.43 Similarly, Inter-American human rights organs have found themselves in need of developing collective rights rather creatively, lacking any relevant references in their foundational documents.44 The Mayagna (Sumo) Awas Tingni Community v Nicaragua decision would thereby initiate a new legal era on the American continent, allowing collective rights to be formally recognised. As was reaffirmed elsewhere by one of the judges of the Court, those rights stipulated in the American Convention on Human Rights – exclusively individual rights – ‘originate from, and acquire existence, effectiveness and significance in, the context of collective rights’.45 Similarly, the Commission had positively positioned itself on the matter, notably by accepting collective rights as a (universal) entitlement, available principally to groups and organisations.46 Critical voices may disentangle the universality claim generally made for (individual) human

37 ibid. 38 C Baldwin and C Morel, ‘Group Rights’ in M Evans and R Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006 (Cambridge, Cambridge University Press, 2008); R Kiwanuka, ‘The Meaning of “People” in the African Charter of Human and Peoples’ Rights’ (1988) American Journal of International Law 82. 39 See also K Topidi, ‘Ubunto as a Normative Value in the New Environmental World Order’ in D Amirante and S Bagni (eds), Environmental Constitutionalism (Abingdon, Routledge, 2022). 40 F Shyllon, ‘Collective Cultural Rights as Human Rights Simpliciter: The African and African Charter Example’ in A Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Leiden and Boston, MA, Brill Nijhoff, 2016); see also The Social and Economic Rights Action Center for Economic and Social Rights v Nigeria, the so-called Ogoni case. 41 A Huneeus and MR Madsen, ‘Between Universalism and Regional Law and Politics: A Comparative History of the American, European, and African Human Rights Systems’ (2018) 16 International Journal of Constitutional Law 1. 42 See eg Katangese Peoples’ Congress v Zaire; Ogoni case; also Baldwin and Morel (n 37). 43 Centre for Minority Rights Development v Kenya, the so-called Endorois case. 44 See subchapter 3 of the present work on procedural issues. 45 K Hausler, ‘Collective Cultural Rights in the Inter-American Human Rights System’ in A Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Leiden and Boston, MA, Brill Nijhoff, 2016). 46 IACHR (Inter-American Commission on Human Rights), ‘The Human Rights Situation of the Indigenous People in the Americas’ IACHR Report OEA/Ser.L/V/II.108 Doc. 62 (2000); Hausler (n 44)

Collectivising Human Rights or Scales of Collectivisation  61 rights and its suitability for collective claims.47 For the purpose of this chapter, collective rights will be further disentangled, distinguishing between substantive and procedural collective claims, each of these dimensions differing from classical (individual-based) human rights law. Very generally, it may be maintained that land rights stand at the forefront of collective rights in the Americas,48 having served as a fundamental basis for establishing collective property (principally substantive) and the right to prior consultation (principally procedural) in the Inter-American system. Interestingly, ancestral land rights have also proven influential as far as judicial dialogue is concerned. In a separate opinion on the Lhaka Honhat decision, judge Ferrer Mac-Gregor Poisot refers to the Ogiek case, which establishes indigenous peoples’ rights to ancestral lands beyond a narrow or limited reading of ownership; instead, the right to property is to be understood as encompassing the rights of possession, occupation, and use and utilisation of land.49 Similar arguments are raised in the Awas Tingni case, arguing that ‘possession of the land should suffice for indigenous communities lacking real title to obtain official recognition of that property’.50 More generally, Ferrer Mac-Gregor Poisot understands the Lhaka Honhat and Ogiek decisions as two precedents in the sense of, firstly, an autonomous justiciability of economic, social, cultural and environmental rights, and secondly, in understanding indigenous peoples’ relation with the environment integrally. The African human rights system, by contrast, seemingly draws on a facilitating founding document, allowing for extra-regional sources of international law to enter the jurisprudential scope.51 It comes as no surprise that leading litigation on indigenous peoples’ rights such as the Ogoni, Endorois and Ogiek cases actively refer to Inter-American jurisprudence on the matter. A few overarching conclusions may be made here. Notably the African Commission relates back to the Moiwana v Suriname and Saramaka v Suriname decisions to establish collective rights protection ‘beyond the narrow/aboriginal/pre-Colombian understanding traditionally adopted in the Americas’.52 The Commission uses the opportunity to spell out the broader rights of peoples more clearly while leaving internal differences untouched by maintaining that ‘the Endorois can be defined as a distinct tribal group whose members enjoy and exercise certain rights … in a distinctly collective manner’.53

47 Jovanović (n 13). 48 M Monteiro de Matos, Indigenous Land Rights in the Inter-American System: Substantive and Procedural Law (Leiden and Boston, MA, Brill Nijhoff, 2020). 49 African Commission on Human and Peoples’ Rights (on behalf of the Ogiek indigenous community) v Kenya. 50 See Endorois case, para 190. 51 Art 60, African Charter. 52 Endorois case, para 159. 53 ibid para161.

62  Jessika Eichler Indeed, a prominent point of departure for judicial dialogue on collective rights among key regional human rights systems certainly lies with the right to lands and territories. The African human rights system relies on progressive developments driven primarily by the IACtHR: accordingly, ownership of land shall be granted beyond mere access/de facto rights; instead the Court maintains ‘only de jure ownership can guarantee indigenous peoples’ effective protection’.54 The same applies to the use and enjoyment of natural resources constituting a ‘necessary condition for the enjoyment of their right to property’ as stated in Saramaka v Suriname, which informs the judgment of the African Court on Human and Peoples’ Rights (ACtHPR).55 Relatedly, claims may arise as to indigenous and tribal peoples’ cultural and economic survival, which is, in turn, qualified by indigenous access to and dependencies on natural resources.56 A natural corollary flowing from natural resource rights includes the state obligation to accurately inform about the nature and consequences of the process, understood as a minimum requirement by the IACHR.57 A final common ground concerns forced evictions: in Ogiek, the ACtHPR refers back to Inter-American case-law when establishing that forced evictions are to be considered a violation of the right to life ‘when they generate conditions that impede or obstruct access to a decent existence’ as argued by the appellant.58 Interestingly, the right in question opens a far-reaching debate on the legal significance of forced evictions as it evolves in international law. To start with, the African Court refers to general safeguards such as possessing ‘a degree of security which guarantees legal protection against forced eviction’59 as well as seeking indigenous peoples’ free, prior and informed consent on the matter.60 Another relevant reference concerns resolution 1993/77 by the former UN Commission on Human Rights declaring forced evictions a gross violation of human rights, particularly the right to housing. Finally, the Endorois decision builds on the ECtHR ruling in Dogan v Turkey (2004) which had turned to the recommendations on ‘compensation payable to displaced or evicted persons’ drafted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities to apply them to the case at hand,61 including but not limited to full replacement payments, assistance during the transition period and efforts to improve upon former living standards.

54 Saramaka case, para 110. 55 Endorois case, para 257. 56 ibid, para 260; see also ECtHR, Handölsdalen Sami Village and Others v Sweden and Johtti Sapmelaccat Ry and Others v Finland. 57 Mary and Carrie Dann v US. 58 Yakye Axa Indigenous Community v Paraguay, paras 160–63. 59 CESCR, General Comment 4, para 8(a). 60 Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (2003). 61 Endorois case, para 237.

Collectivising Human Rights or Scales of Collectivisation  63 Collectivisation processes as they are produced in jurisprudential interactions across world regions seemingly reveal a certain eagerness to counterbalance the somewhat conservative frameworks on which they were once built. Definitional questions, land issues and – relatedly – forced evictions could be regarded as the most contentious matters that find articulation in legal frameworks. While we may want to be wary of its contextual limitations, these violations certainly represent not only frequently occurring violations, but also a growing trend embraced by relevant mechanisms such as the Special Rapporteur on the Rights of Indigenous Peoples or the Expert Mechanism on the Rights of Indigenous Peoples. Collectivisation in that sense also tackles the persistent remains of an individualistic regime materialising in property rights including individualised land titles. As becomes apparent in international forums, land issues continue to shape soft law developments to the present day.62 Somewhat expectedly, then, collectivisation processes do not embrace human rights orders in their entirety; instead, these are spelt out as particularly relevant for what we may call landrelated rights, especially the right to prior consultation and consent63 as well as particular procedural dimensions (see especially the following section). 3.  VINDICATING COLLECTIVE RIGHTS: STANDING AS A DEBATE IN ITS OWN TERMS

To start with, we may want to be aware of a common misconception related to collective rights and the ways and modalities of wielding them. Notably, group rights are (mis)understood as rights ‘that are shared in and held jointly by the groups’ members’ only – this view is countered by what could be termed the ‘moral standing’ of a group existing independently of its individual members.64 Others have placed emphasis on the dividing lines between external protection(s) of a given group vis-a-vis society at large and internal restrictions, referring to limits imposed on group members by a given minority group:65 both have been termed collective rights without, however, engaging more closely with any debates on how these could be invoked; this in fact reflects a common approach to dealing with collective rights. In the present contribution and in the spirit of procedural significance, it is necessary to distinguish between so-called dual-standing rights allowing collective rights to be wielded by individuals or representative entities,66 and ‘jointly 62 See eg 12th EMRIP 2019 session. 63 See eg C Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free, Prior and Informed Consent (Abingdon, Routledge, 2017); C Wright and A Tomaselli, The Prior Consultation of Indigenous Peoples in Latin America: Inside the Implementation Gap (Abingdon, Routledge, 2019). 64 Jones (n 12) 1. 65 Kymlicka (n 6). 66 Buchanan (n 13).

64  Jessika Eichler exercised individual rights’.67 The latter constitute the more frequent claim among the two across both international human rights law and constitutional spheres.68 As alluded to earlier, individual rights could be considered as the most common manifestation of human rights across legal orders: cultural rights, for instance, would demonstrate a certain preference for individuals as rightsholders and those entitled to standing in view of any relevant violation.69 Dual-standing rights may be defined as follows: [A]ny individual who is a member of the group can wield this [collective] right, either (1) on his or her own behalf or on behalf of any other member or members of the group, and (2) the right may also be wielded by collective mechanism or by an agent or agents of the group.70

The latter condition proves decisive for meeting the standards commonly set by indigenous internal decision-making procedures, such as established representative mandate holdership or as demanded by indigenous organisational structures. This approach may be criticised on the basis of its preference for ‘identificable spheres of authority’, allowing little space for a ‘decentralised power base within indigenous communities to be recognised’;71 the question of internal differences may indeed come back to us in any societal formation. The other scenario relates to what could be termed ‘the exercising criterion’72 of individual rights: these can be wielded either individually by the victims, they can be exercised by some form of legal representation in the case of, for instance, minors, disabled or elderly persons, or these are to be exercised only jointly.73 In fact, both categories of rights, individual and collective claims, may prove exclusive in terms of how they may be wielded, demonstrating the need for collective rights to be recognised as an autonomous right. Such form may be termed ‘nonindividual standing rights’,74 being justifiable also from an individual rights perspective since these permit, inter alia, individual choices to be articulated.75 Similarly, this so-called procedural paradigm suggests the importance of public autonomy alongside private autonomy to be protected in a democratic state system.76 Indeed, the very contact with the state and society at large allows for 67 Jovanović (n 13). 68 For a general debate on standing in constitutional law, see DL Doernberg, ‘“We the People”: John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action’ (1985) 73 California Law Review 52. 69 AF Vrdoljak, ‘Standing and Collective Cultural Rights’ in A Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Leiden and Boston, MA, Brill Nijhoff, 2016). 70 Buchanan (n 13) 94. 71 C Holder and JJ Corntassel, ‘Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights’ (2002) 24 Human Rights Quarterly 126–151, 144. 72 Jovanović (n 13). 73 ibid. 74 Buchanan (n 13). 75 H Spector, ‘Communitarianism and Collective Rights’ [1995) Analyse & Kritik 17. 76 J Habermas, ‘Struggles for Recognition in the Democratic Constitutional State’ in C Taylor (ed), Multiculturalism: Examining the Politics of Recognition (Princeton, Princeton University Press, 1993).

Collectivising Human Rights or Scales of Collectivisation  65 specific indigenous collective claims in the first place, autonomies representing one of its most needed expressions. A final possibility may include standing by means of other forms of institutionality and spaces of governance: it was argued elsewhere that a quasigovernmental EU institution, the Committee of the Regions, would allow co-nations onto a firmer legal standing within the EU than the provision enshrined in the Charter. It certainly brings co-nations with self-governing powers who are members of the CoR closer to the decision-making process in Brussels. However, de facto is not de jure, and procedural rights are deliberative rights not discursive rights.77

The ambiguous role of de facto standing rights in current contexts are discussed in the following. Procedural dimensions have largely been neglected in practice whenever collective rights are addressed, being merely mentioned under the broad umbrella of participation, in relation to the ad hoc modalities of free, prior and informed consultation and consent, or in general access-to-justice debates.78 Especially in contexts where collective rights are poorly articulated or accessible, collective forms of invoking rights have proven pivotal for (individual) human rights to become vindicated by groups, in some cases adding a collective dimension to rights in their substance. As far as indigenous peoples are concerned, the IACtHR has come to understand its interpretative powers widely, thereby extending human rights protection beyond its somewhat scarce legal framework, prominent examples being the right to property and participation which acquired new meaning in relation to indigenous peoples’ land claims.79 Interestingly, the Court critically engages with the concept of ‘property’ in Western legal terms in accordance with indigenous perspectives and its legal implications: Among indigenous peoples there is a communitarian tradition regarding a communal form of property of the land, in the sense that ownership of the land is not centred on the individual but rather on the group and its community. Indigenous groups, by the face of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognised and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.80

Strictly speaking such communitarian enjoyment of land rights attributes an important procedural dimension to the right to property: the Court manifestly

77 Malloy

(n 7) 284. eg IACtHR Advisory Opinion OC-23/17 requested by Colombia. 79 See eg Monteiro de Matos (n 47). 80 Mayagna (Sumo) Awas Tingni v Nicaragua, para 149. 78 See

66  Jessika Eichler succeeded in allowing individual rights to be understood in a collective way; even more so, it created a collective legal regime in its own terms, again including distinct procedural implications. Later judgments have largely built on the rationale that would allow for indigenous collective rights to find their way into the jurisprudence of the Court, as these relate to prior consultation and consent in particular.81 Neighbouring regimes have similarly approached the question of standing as far as group rights are concerned. It needs to be stated from the outset, however, that the common dealing with group rights remains rather limited in leverage, being confined to a restrictive scope as defined by the ‘home’ state. This concerns so-called ‘national’ minority rights in particular, with ‘national’ minorities enjoying recognition under the Council of Europe framework. Most visibly, standing has become articulated under Article 3(2) of the Framework Convention for the Protection of National Minorities (1995), allowing ‘persons belonging to national minorities … to exercise the rights and enjoy the freedoms … individually as well as in community with others’, hence referring rather explicitly to the form standing can take. The Explanatory Report issued by the Council of Europe’s Ad Hoc Committee for the Protection of National Minorities, however, reveals its conservative stance towards such undertaking in its comment on Article 3(2): rather than understanding standing as a procedural (in addition to substantive) manifestation of collective rights, it unequivocally establishes a ‘possibility of joint exercise of those rights and freedoms, which is distinct from the notion of collective rights’ (paragraph 37) whereby ‘others’ is to be interpreted widely, including but not limited to the minority group in question. The Committee not only rules out any formal recognition of collective rights in that sense, but it also broadens its protective realm in such a way which renders group specificity largely redundant, the latter lying at the head of most collective claims. In Europe, collective standing rights have gained prominence rather indirectly, notably through community governance structures as ruled by the European Court of Justice (ECJ): indigenous associations were given ‘procedural powers’, in the sense of proper powers, vested with their own interests and entitlements to bring proceedings.82 Indeed, the Court engages more closely with standing in that regard; it calls upon states to soften those criteria relevant for standing as far as indigenous associations are concerned.83 For that matter, it considers to what extent individual petitioners are directly or individually affected by respective legislative measures.84 As far as collective rights are concerned, the

81 see Saramaka v Suriname; Sarayaku v Ecuador. 82 Inuit Tapiriit Kanatami and Others v Parliament and Council. 83 Carvalho and Others v Parliament and Council. 84 Carvalho and Others v Parliament and Council, para 44; Inuit Tapiriit Kanatami and Others v Parliament and Council, para 76.

Collectivising Human Rights or Scales of Collectivisation  67 Court expressly addresses these, establishing dedicated criteria including but not limited to associations representing the interests of its members or where its specific interests are shown to be affected.85 More hope may be placed in peoples’ rights and their vindication in other world regions, as stipulated by the African Charter on Human and Peoples Rights (1981) and more recently by the American Declaration on the Rights of Indigenous Peoples (2016). To start with, peoples’ rights in the African human rights system embrace a multiplicity of claims centred around the ever re-emerging demands for development, self-determination, territorial and resource sovereignty, environmental and economic, social and cultural rights. We may, however, want to maintain a cautious approach in terms of the applicability of such rights to vulnerable or minority groups. ‘Peoples’ as it is embraced by the Charter may be understood as tantamount to those subjected to colonisation, it may refer to the population of a state as a whole, it may concern the people of Africa generally, state parties, or distinct communities or ethnic groups within a state.86 This also complicates the picture as far as the procedural dimension of standing is concerned: explicit enjoyment of peoples’ rights, individually or collectively, is reserved to states according to the Charter provisions (Articles 21, 22). Nevertheless, the African Commission on Human and Peoples’ Rights most notably took the chance to rule on indigenous rights on a number of occasions, mostly relating to land and natural resource rights.87 The American Declaration on the Rights of Indigenous Peoples adopts a much clearer standpoint in that regard, namely by establishing rights granted to ‘indigenous peoples and individuals’ in relation to a wide range of matters. While procedural detail remains largely unaddressed, the Declaration does define its scope of application rather clearly, by stating that it applies to ‘the indigenous peoples of the Americas’ (Article 1(1)) and by declaring selfidentification, individually or collectively, a ‘fundamental criterion for determining to whom this Declaration applies’ (Article 1(2)). As a matter of principle, the Declaration, as its title suggests, applies first and foremost to indigenous peoples who are naturally vested with respective procedural powers to vindicate their collective rights. In that sense, standing does not represent an obstacle to be overcome for rights to be invoked collectively, although we should bear in mind the legal value of the Declaration, which fails to attribute any enforceable character to the rights stipulated therein, at least if we were to follow a strict legal approach.

85 Inuit Tapiriit Kanatami and Others v Parliament and Council, para 51. 86 SA Dersso, ‘The Jurisprudence of the African Commission on Human and Peoples’ Rights with Respect to Peoples’ Rights’ [2006] African Human Rights Journal 6. 87 Endorois v Kenya; Ogoni v Nigeria; Ogiek v Kenya.

68  Jessika Eichler 4.  COLLECTIVISATION COMPARED: ESTABLISHING SCALES, DEVELOPING INDICATORS – TOWARDS A GENUINE SUI GENERIS ORDER?

A few transverse conclusions may be drawn here by way of measuring the legal value of collective rights in contemporary frameworks comparatively – what we will term ‘scales of collectivisation’ – and by uncovering the potential for developing progressive standards respectively. This may take the form of jurisprudence88 or as being part of codification processes, the American Declaration on the Rights of Indigenous Peoples and the African Charter on Human and Peoples’ Rights89 being emblematic in that regard. For the purpose of measurement, let us distinguish between different criteria and spectra that shall indicate variation as far as collectivisation is concerned. Accordingly, we will derive a classification scheme, carving out limits and opportunities for collective rights to find recognition in a systematic fashion (Figure 1). Figure 1  Scales of Collectivisation Part of Neighbouring Regimes, Sections of Law or Constitution

Levels of Autonomy and Leverage Relative to the State

Harmonisation, Integration and Accommodation

Constitutionalisation

Isolated Policies

Establishment of Sui Generis Orders Ad-Hoc Forms of Collectivisation and Isolated Treatment

Standardising and Mainstreaming Collective Rights

Scales of Collectivisation Institutional Mainstreaming of Collective Rights

Limitation to Particular Rights

Integrity of Human Rights

Measures Limited to Domestic Institutional Structures

Firstly, we may want to compare and contrast standardisation and mainstreaming processes that ultimately allow collective rights to become structurally embedded in a given framework, on the one hand, and ad hoc forms of collectivisation, on the other. Throughout the human rights decades that would follow the adoption of the Universal Declaration of Human Rights in 1948, collective rights have been witnessing – albeit at embryonic stage – repeated attempts of

88 Talbot 89 See

(n 35). eg Dersso (n 85).

Collectivising Human Rights or Scales of Collectivisation  69 mainstreaming these rights across the international legal landscape of human rights. This became most pronounced in the case of the Convention on the Rights of the Child90 which would not only understand indigenous origin as an important component of the spirit of understanding, peace, tolerance or life in a free society (Article 29), but would also establish dedicated indigenous rights to enjoy culture, practise religion or use one’s language (Article 30).91 If we were to consider developments that could be located at the other side of the spectrum (in soft grey in Figure 1), this could include the somewhat isolated treatment of indigenous rights in the general comments and reporting framework of the main UN human rights treaties (ICCPR, ICESCR, CEDAW, CAT, ICERD, CRPD, CED, CMW): notably, indigenous rights may find mention in generic references to ‘vulnerable groups’ or groups needing special attention, commonly as these relate to specific issues such as physical violence against women or children. Secondly, taking norms as a starting point, we may be able to observe the rise of collective regimes in their own terms, so-called sui generis orders. The latter term, however, seems to presuppose high thresholds to be met to qualify as such and it also strongly builds on institutionality: the European Union may be emblematic here, as a ‘self-contained regime’, a sui generis international organisation,92 a legal experiment with sui generis nature,93 while others have understood its intermediate position between state and international organisation as being decisive for such status.94 Similar terminology is to be found in human rights jargon. Notably, a proper jus commune has been attributed to international human rights treaties, again with a dedicated focus on relevant (interpretative) institutions.95 Similar observations may be made in the case of collective rights, building on newly established orders including UNDRIPS and Convention No 169 as well as sporadic references elsewhere such as the Convention on Biodiversity (CBD) or the Convention on the Safeguarding of Intangible Cultural Heritage (CSICH), each building on proper forms of institutionality including monitoring systems. Returning to the other side of the spectrum, sui generis orders may be juxtaposed with other (possibly conflicting) legal regimes such as the intellectual property framework (WIPO), which require ways of integrating or accommodating collective rights according to conflicting

90 See eg J Rae, Indigenous Children: Rights and Reality. A Report on Indigenous Children and the UN Convention on the Rights of the Child (First Nations Child and Family Caring Society of Canada, 2006. 91 See, for further debates, S Schmahl, United Nations Convention on the Rights of the Child: Article-by Article Commentary (London, Nomos/Hart, 2021). 92 W Phelan, ‘What Is Sui Generis about the European Union? Costly International Cooperation in a Self-contained Regime’ (2012) 14 International Studies Review 3. 93 B de Witte, ‘The European Union as an International Legal Experiment’ in B de Witte (ed), The Worlds of European Constitutionalism (Cambridge, Cambridge University Press, 2012) 94 RL Boşilcă, ‘The European Union – A “Sui Generis” International Diplomatic Actor: Challenges Posed to the International Diplomatic Law’ (2014) 14 Romanian Journal of European Affairs 1. 95 O de Schutter, ‘The Formation of a Common Law of Human Rights’ in E Bribosia and I Rorive, in collaboration with AM Corrêa (eds), Human Rights Tectonics: Global Dynamics of Integration and Fragmentation (Cambridge and Antwerp, Intersentia, 2018).

70  Jessika Eichler value systems. We may further feel compelled to draw lines of demarcation between hard-law and soft-law regimes, introducing yet another distinguishing factor which raises questions of legal leverage and enforcement. At domestic level this may take the shape of isolated policies, falling short of allowing for structural change, such as, for example, constitutional reforms with the potential to collectivise the law in a systematic and integrated manner. Thirdly and relatedly, we may indeed seek answers in contemporary constitutional orders. Given the hierarchy of legal orders – especially as far as domestic law is concerned – constitutional orders offer valuable venues for collectivising the law. This may include, inter alia, provisions on indigenous self-determination, autonomies, self-governance, customary law, and historic or future treaty-making.96 Conversely, isolated policies may hardly do justice to the promising institutional reinventions finding their origin in constitutional transformations such as constitutional reforms or processes leading to completely new constitutional frameworks, powerfully demonstrated by the Ecuadorian, Bolivian and Chilean experiences.97 In the case of indigenous peoples and traditionally left-out minorities, collectivisation processes naturally require systemic rethinking, including but not limited to applying novel legal principles, decolonising reforms, new participation schemes and mainstreaming efforts to enable those groups to find voice and due consideration throughout the constitutional framework concerned. Fourthly, mainstreaming may not only concern jurisprudential developments, but can similarly be found across the expanding institutional scenery of human rights, under the umbrella of the OHCHR in particular, and its ever more specialising institutional framework. What is meant here includes working groups, special rapporteurs and independent experts, subcommissions or subcommittees.98 Especially where collective rights remain far from being codified, specialised institutions demonstrably assume a leading role in developing jurisprudence, in monitoring state practice or offering complementary venues for individuals and groups to make claims. In the field of indigenous rights,

96 A Cats-Baril, Indigenous Peoples’ Rights in Constitutions Assessment Tool (International Institute for Democracy and Electoral Assistance, 2020). 97 FX Barrios-Suvelza, ‘El Impacto de las Recientes Reformas de Regionalización en Colombia, Ecuador, Perú y Bolivia: Conceptos y Procesos’ (2017) 8 Revista de estudios sobre espacio y poder 1; R Uprimny, ‘The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges’ [2011] Texas Law Review 89; C Romero Bonifaz, ‘Bolivia: de la confrontación al pacto político’ in C Romero Bonifaz, C Böhrt Irahola and R Peñaranda (eds), Del Conflicto al Diálogo: Memorias del Acuerdo Constitucional (La Paz, Fundación Boliviana para la Democracias Multipartidaria y Fundación Friedrich Ebert-Instituto Latinoamericano de Investigaciones Sociales, 2009); Bernot (n 30). 98 See eg Charters and Stavenhagen (n 11); J Youngblood Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition (Vancouver, University of British Columbia Press, 2008).

Collectivising Human Rights or Scales of Collectivisation  71 considerable progress has been achieved under OHCHR special procedures, the Human Rights Council and ECOSOC, establishing the mandate of the Special Rapporteur on the Rights of Indigenous Peoples (SR), the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) and the Permanent Forum on Indigenous Issues (PFII), respectively.99 These institutions and specialised agencies have come to play a leading role in interpreting and implementing relevant legal sources, UNDRIPS in particular (Articles 41 and 42).100 Other collective regimes may remain far from enjoying institutional oversight, including peasants’ rights – hence limiting collectivisation to the domestic realm or international non-governmental movements, as powerfully shown by Via Campesina. Fifthly, collectivisation may take shape differently depending on a group’s level of autonomy and leverage relative to the state. Indeed, the indigenous right to autonomy remains one of the most vehemently demanded collective rights at the global scale. Apart from its intrinsic value as a general principle, autonomy also materialises in the form of specific indicators. In that sense, a group’s level of autonomy may depend on its voting procedures and respective quota regulations,101 the establishment of dedicated mechanisms such as parliaments, subcommissions or ministries,102 particular mandates of representation to be created and assumed or political parties to arise,103 or the extent to which pluralism is embraced by a given legal framework.104 In other words, collectivisation is qualified by the state’s eagerness to give up on its status quo, majority-oriented logics of daily operating. Institutional venues and procedures seemingly bear considerable potential in operationalising collective autonomy, allowing a state’s institutions to open up towards pluralistic orders, and the diversity of subjects it pretends to represent. Sixthly, collectivisation may be limited to certain rights only, proving ignorant of human rights in their integrity, that is, the interrelated, indivisible, universal and interdependent nature of human rights (see the Vienna Declaration and Programme of Action and the 1993 World Conference on Human Rights). In short, the integrity of rights is to be transposed into legal orders if we wanted

99 J Burger, ‘Making the Declaration Work for Human Rights in the UN System’ in C Charters and R Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen, IWGIA, 2012). 100 For further debates, see B Clavero, ‘Nota sobre el Alcance del Mandato Contenido en el Artículo 42 de la Declaración sobre los Derechos de los Pueblos Indígenas y el Mejor Modo de Satisfacerlo por Parte del Foro Permanente para las Cuestiones Indígenas’, Permanent Forum on Indigenous Issues, E/C.19/2008/CRP.6 (2008). 101 N Stojanović, Dialogue sur les Quotas: Penser la Représentation dans une Démocratie Multiculturelle (Paris, Presses de Sciences Po, 2013). 102 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) ‘Final Study on Indigenous Peoples and the Right to Participate in Decision-Making’, Human Rights Council, Report of the Expert Mechanism on the Rights of Indigenous Peoples (2011). 103 D Van Cott, From Movements to Parties in Latin America: The Evolution of Ethnic Politics (Cambridge, Cambridge University Press, 2010). 104 Barrera (n 34).

72  Jessika Eichler to approach collectivisation genuinely. International legal orders illustrate such shortcomings throughout the treaty-based framework. While economic, social and cultural rights remain limited to everyone’s ‘tak[ing] part in cultural life’ (ICESCR, Article 15),105 civil and political rights similarly reveal a narrow focus, that is, minorities’ right to ‘enjoy their own culture, to profess and practice their own religion, or to use their own language’ (ICCPR, Article 27).106 Regional frameworks, such as the ‘national minorities’ framework established by the Council of Europe, similarly approach collectivisation only hesitantly, leaving broader procedural matters, such as collective invoking of rights, untouched.107 Yet, indigenous rights in particular reveal the urgent need to understand claims as interrelated given the shared holistic view on the environment or as intrinsic to their collective cosmovisions.108 By way of collectivising minority rights, both substantive and procedural dimensions appear relevant in granting full access to any human right, including those rights particular to indigenous peoples and minorities. 5.  CLOSING REMARKS

Collective rights have entered the international legal framework only hesitantly, through the backdoor, it may be argued: given the scarcity of relevant hard-law sources, competent mechanisms were called upon to develop progressive jurisprudence on the matter in an evolutionary manner. Indeed, treaty-monitoring jurisprudence has proven key for spelling out minority rights obligations109 or applying its generic rights protection – available to all – to the specific situation indigenous peoples are facing.110 Regional entities headed by the IACtHR eventually succeeded in establishing collective obligations based on the communitarian rationale underlying land

105 See also A Yupsanis, ‘The Meaning of “Culture” in Article 15 (1) (a) of the ICESCR – Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures’ [2012] German Yearbook of International Law 55. 106 A Yupsanis, ‘Article 27 of the ICCPR Revisited – The Right to Culture as a Normative Source for Minority / Indigenous Participatory Claims in the Case Law of the Human Rights Committee’ in N Lavranos and R Kok (eds), Annuaire de la Haye de Droit International/Hague Yearbook of International Law (2014) 26. 107 Jovanović (n 13). 108 See eg IACtHR Sarayaku decision. 109 eg Art 27, ICCPR; General Comment no 23 ‘On the Rights of Minorities’; Apirana Mahuika et al v Australia; Ángela Poma Poma v Peru; Sanila-Aikio v Finland; Ilmari Länsman et al v Finland; Jouni E Länsman et al v Finland; Rehboth Baster Community et al v Namibia; Sandra Lovelace v Canada; Kitok v Sweden. 110 eg Art 15, ICESCR, General Comment no 21 ‘On the Right of Everyone to Take Part in Cultural Life’; Concluding Observations on Ecuador’s 4th State Report, Cameroon’s 4th State Report; Mexico’s 5th and 6th State Reports, Colombia’s 6th State Report; Arts 17, 29, 30 ICRC; General Comment no 11 ‘Indigenous Children and their Rights under the Convention’.

Collectivising Human Rights or Scales of Collectivisation  73 property claims in the case of indigenous peoples. Relatedly, cross-regional judicial dialogue demonstrably led to an enhanced awareness of contentious issues in particular, including land rights, definitional questions and protection from forced eviction. Regional organisations thereby clearly engage in mutual learning processes, seeking legitimation and authority in the light of the contested rights these judgments generally rule on. Another virtuous venue explored in that context concerns procedural law and its possibilities for individual rights to be claimed collectively, hence permitting institutional issues including questions of representation to find consideration. Indeed, procedural claims commonly allow for prior consultation, consent and other participatory rights to be entered into in detail, to be enforced eventually. If we wanted to use the far-reaching term ‘sui generis order’ to describe the successful judicialisation of collective rights, we would need to be aware of its fragmented nature in the case at hand, the predominance of soft-law obligations, and the complexity of judicial dynamics among competent bodies which might lead to the postponement of the ‘collective human rights age’ for the years to come. We may, however, place our hope in the growing specialisation and respective institutionalisation to the benefit of collective rights in international fora, the mutual learning across regional human rights systems with the IACtHR as a true frontrunner, the eventual appointment of indigenous representatives as legitimate experts, negotiators and decision-makers, and the successful cross-fertilisation of collective rights throughout relevant laws, policies and implementation processes in the multiscale world of legal orders.

74

Part II

Pluralism from the Top and Below: The Multiplicity of Paradigms of Recognition

76

5 Why Do the Old-Established Nation States Fail to Recognise Minorities? Case Studies from France CATHERINE WIHTOL DE WENDEN

1. INTRODUCTION

M

inority and diversity are often difficult questions for constitutions to address because their recognition implies a mix of universal and individual or collective rights. For nation states,1 it is an acute task because they were built with the aim of constructing a new political project around the nation, legitimising the new state. Minorities, either indigenous or immigrant, are defined by the Larousse Dictionary as populations of a smaller size compared with another part of the population, usually referring to the majority. Minorities can be ethnic, cultural, linguistic, religious or of foreign origin. They were first internal, then they became international, progressively linked via migration flows settled inside states, but also ethnic, cultural linguistic, religious ones in internal and external cases. The word minorities was much debated during the nineteenth century (eg ‘the springtime of the peoples’ of 1848) as states defined themselves as nation states, and in Europe mainly during the mid-nineteenth century and twentieth centuries. The nation state, built on the myth of homogeneous populations and including groups that did not recognise themselves in the new political frame, such as the Turkish population in Greece, sometimes practised exchanges of populations, as Turkey and Greece did in 1922. During the twentieth century, the Kurdish people, shared between Turkey, Iran, Iraq and Syria after the First World War, or Armenians benefiting from Nansen passports in 1922 after the genocide of 1916 did not find a place

1 The term nation states refers to states that define themselves as equivalent to a nation which can be a social contract around common values such as in France, or an ethnic, historical and cultural belonging such as in Germany in the past. It is commonly used in political science and in international relations as the main actor in politics and as the main subject of the international scene. But the nation states may include minorities which are not always recognised as belonging to it.

78  Catherine Wihtol de Wenden in the new geography of Europe and the Middle East. More recently, some minorities came to be recognised by their specific language and religion, such as German Aussiedler living in former Eastern Bloc countries, others by their religion, such as the Assyro-Chaldeans, others by their nomadic way of life, such as the Roma in Eastern Europe, or by their origins in territories beyond the borders of the state to which they belong, such as the Hungarians of Transylvania in Romania or Ukraine. The Jews, with a population spread across Europe, are the most well-known case. Beyond Europe, other minorities are today mobilised for the recognition of their rights in the states to which they belong: Uyghurs and Tibetans in China, and Rohingyas in Myanmar. In particular, the Rohingya are not recognised as belonging to any of the various ethnic groups defined as nationals in the constitution and are therefore stateless. However, since the beginning of the twentieth century, many international agreements have tried to recognise and protect minorities: the right to selfdetermination, included in the fourteen points of Wilson’s declaration in 1919 after the First World War, the protection framework of minorities defended by the Council of Europe after the Second World War, the European Charter for Regional or Minority Languages of the European Union, the United Nations Declaration of 2007 on indigenous peoples’ rights. Some ethnic groups gained language or cultural rights in nation states such as Morocco (Amazigh-speaking Berber populations), Spain (Catalunya, Basque regions), France (which authorised Corsican, Breton and Berber as a languages that could be taught in public schools) and Italy (recognising German- and French-speaking populations of South Tyrol and the Aosta Valley). 2.  BUT WHAT ABOUT CONSTITUTIONS?

Are we perceiving increasing recognition or a regression of rights granted to minorities and diversity? In the French case, the Constitution and the Constitutional Council are reluctant to recognise minorities because the French Republic is defined in the Constitution as ‘une et indivisible’ where legitimacy is only granted to the ‘French people’. But although the French Constitution fails to address diversity in spite of European incentives (ie, the Lisbon European Constitutional Treaty of 2007 and the Council of Europe), minorities that are also defined by skin colour, immigrant and religious background, by being LGBTQ or by biological characteristics such as handicap, encounter difficulty fighting for more recognition faced with nationalist and populist discourses defending the permanence of homogeneity in the nation state as the most important aspect of the national and international political order. The French case study illustrates clearly the difficulty the constitutions of most Western European countries have in addressing diversity. Latin America is one of several parts of the world where multiculturalism has been recognized as a cultural belonging, and life in large cosmopolitan cities

Why Do the Old-Established Nation States Fail to Recognise Minorities? 79 reflects this practice. In Brazil, for example, social movements were raised to promote traditional identities, and the constitution of 1988 gives legitimacy to former slaves and confers land rights. In Canada and Australia, multiculturalism is included in the constitutions, which consider the ‘native peoples of Americas’ and the Aboriginal population as well as immigrants as part of these nations. The political discourse in Canada aims at presenting the state as an example of successful immigration flows and policy.2 Europe is facing an identity reconstruction built on cultural values that do not include the colonial past or the story of immigration in domestic memory. For a long time, this aspect of history was erased or blurred due to the conflict of memories between the European colonial settlers and the indigenous populations, or because of the history of slavery. The question became particularly controversial as people from colonial countries, in some cases the descendants of slaves, progressively settled as migrants in European states (the United Kingdom, France, the Netherlands, Belgium, Portugal). Multiculturalism was put on the agenda of many European countries in the 1990s–2000s, but later abandoned. In Germany, Angela Merkel stated that ‘multi-kulti’ had been a failure and the idea of Leitkultur spread, becoming established as an objective for integration. The Netherlands, one of the first EU countries to adopt multiculturalism as a more inclusive policy, progressively blurred its integration programmes as right-wing parties gained political power. In France, where the concept of diversity was slowly introduced as a tool for égalité des chances (the French implementation of the notion of positive discrimination) against discrimination, a new republicanism inspired by ‘assimilation’, ‘laïcité’ (secularism) and ‘citizenship’ is now celebrated in political discourses, on the left (by Jacobinist republicans) as well as on the right wing and extreme right wing, promoted by Eric Zemmour, a presidential candidate in 2022. Moreover, integration of newcomers such as minorities is in contradiction with the definition of many European nation states where the citizen of a state cannot be part of a minority with its own autonomy and where rising sovereignties are coupled with rising nationalisms. Protection is limited to some minorities only, such as Commonwealth populations in the United Kingdom, who can vote and can be represented in all elections, or specific minorities constructed by collective advocacies (handicapped, sexual orientation, etc). This misunderstanding is linked with the belated recognition of many European states as countries of immigration for settlement,3 whereas they first thought of themselves as countries of immigration for work, without considering migration as part of their new population – as exemplified by Germany, which defined itself until the 2000s as a country of Gastarbeiter. In the meantime, and contradictorily, the Council of Europe is promoting the protection of minority languages and cultures and



2 S

Castles and M Miller, The Age of Migration (Basingstoke, Macmillan, 2014). Schnapper, La Communauté des citoyens (Paris, Gallimard, 1996).

3 D

80  Catherine Wihtol de Wenden trying to defend the languages of Europe. The European Union itself defines diversity as part of its identity. The recognition of minorities implies a lot of conflicting values, such as universalism and minority rights, state values, and individual or collective rights in national states or multinational states. Many multinational states in and around Europe have failed (Lebanon, Yugoslavia) and autonomist movements (Corsica, Catalunya, Northern Ireland) are seen as a challenge to states. The politics of minorities in European states follow several models: • an ethnic nationalism which restricts minority rights (Eastern European countries); • a liberalism which neglects cultural differences to deserve freedom and individual rights (Western Europe); • a pluricultural country which is focused on community rights (United Kingdom). This chapter will first examine the contradictions between the place of minority rights as these become articulated in universalist values while the situation and minority rights are considered as criteria of democracies. Then it will focus on the French case, between universalism in the Constitution and international rules imposed by international organisations as well as tolerance with minority groups for more recognition. 3.  MINORITIES, NATIONS AND STATES IN EUROPE

In the constitutions of most European states, universalism in the law implies the absence of differentiation of the rule of law, and these nation states have to accept the recognition of specific rights granted to members of minorities.4 Between the recognition of minority particularisms and a universalist assertion of rights, minorities are characterised by a collective will to live together with or without recognition by the state to which they belong, while the aims of this state may hinder these intentions. A large number of international rules of protection have been adopted to preserve the culture, traditions and religion of minorities: the rights of peoples to define their own future. President Wilson’s principles, as outlined at the 1919 Paris Peace Conference, were founded on the rights of peoples to self-determination. The protection of minorities after the Second World War was newly reasserted in the aftermath of the Holocaust. Several international agreements, including the United Nations International Agreement on Civil and Political Rights of 1966 (in particular, Article 27 on

4 D Lochak, ‘Garantir l’existence et les droits des minorités: conjuguer l’universel et le singulier’ (2020) no 137–38 (2nd semester) Matériaux pour l’histoire de notre temps 10–15.

Why Do the Old-Established Nation States Fail to Recognise Minorities? 81 the protection of ethnic minorities), the Council of Europe Framework of Minority Rights, the European Court of Human Rights, the European Charter for Regional or Minority Languages of the European Union of 2004, and the United Nations Declaration on the Rights of Native Peoples of 2007, illustrate the political will to combine universalist values with democracies in Europe and with minority rights. The state and its borders often frame the definition of minorities, while citizenship tries to limit inequalities in exercising the right to civic equality. Many nation states have built themselves thanks to the absorption of minorities, or by the separation of minorities from the state, or by the expulsion of undesirable minorities. Some minorities are viewed as obstacles to the constitution of homogeneous nation states, due to their allegiances, or to their aspirations for self-determination or independence. The displacement of borders has also contributed to the definition of minorities, ethnicising them or regionalising them, such as in Alsace-Lorraine between 1870 and 1919 (where inhabitants maintained their use of the French language to distinguish themselves from German speakers), or for Catalans and Basques, whose land is crossed by the French–Spanish border. Transnational diasporas are also challenging borders of states with their ‘strength of weak ties’5 across borders with family and cultural ties. While Europe places emphasis on the diversity of peoples, the compromise with minority claims often implies the recognition and granting of new rights from the state: equal citizenship, association rights for the expression of language, culture and religious belongings, for fighting against discrimination in the law, for democratic assemblies focused on specific autonomous claims, associations for the memory of minorities. The recognition of minorities by nation states in Europe is defined in most, but not all, of the various constitutions. However, there is no European consensus on the definition of a ‘national minority’. The rights that minorities are recognised to possess are mostly based on two constitutional rules: the rule of equality of rights and non-discrimination for all citizens, and the rule of political unity and the territorial integrity of the state. 4.  THE FRENCH CASE

France is considered as the best case of a nation state defined by common values of universalism and individualism despite its difficulties with recognising minorities due to the primacy of citizenship as the foundation of national identity in its Constitution and hence of the French nation. The social contract that inspired French constitutionalists defines citizenship in terms of civic values, without any mention of ethnic, cultural or other identities. The legitimacy 5 M Granovetter, ‘The Strength of Weak Ties’ (1973) 78(6) American Journal of Sociology 1360–80.

82  Catherine Wihtol de Wenden of the French nation was expressed at the battle of Valmy (1792), when the Revolutionary army shouted ‘Vive la nation!’ at the opposing Prussians: the German poet Goethe said that the nation was a new idea in Europe. The link between the state and the nation was so strong during the Third Republic (1875– 1940) that the right of association was granted by law only as late as 1901, more than a century after the Revolution of 1789, because it was viewed as a challenge to the unity of the nation state. Recent debates on secularism (laïcité), social cohesion (Jacques Chirac in 1995), identity (Nicolas Sarkozy in 2009) and on ‘cultural challenges’ supposedly brought by Islamic ways of life such as separatism (Emmanuel Macron in 2020) – a term that suggests the decision of populations of immigrant background in inner cities to allegedly distance themselves from, and sometimes to enter into conflict with, the state to which they are belong – are at the centre of the question of the links between citizenship, state and belonging.6 In France, there is no recognition of the term ‘minority’ in the Constitution, or of a regional ‘people’, as it is recalled in the French Constitution: the ‘preambule’ of the Constitution of 1946 became a constitutional block in the Constitution of 1958: The French people proclaims that every human being, without any distinction of race, religion or faith, have sacred rights which cannot be suppressed. It reasserts the Human and Citizens rights of the 1789 Declaration and the fundamental principles recognized by the law of the Republic.

The paradox between universal rights and minority rights underlies the constitutions of most nation states in Europe. These conflicting values are particularly well illustrated by the French case. The recognition of rights granted to minorities is not tantamount to multiculturalism, which implies the rise of a mixed culture, rather than granting rights to minorities closed within their particularisms. The reason for this paradox is linked with the role of the individual citizen and the assertion of their freedom to belong or not to belong to a group. Individualism is at the centre of French citizenship; minority rights have to be negotiated. However, France is, de facto, a multicultural state, because it has the longest history of immigration in Europe, but it hardly recognises this part of its history.7 Mass migration developed in France in the second part of the nineteenth century, due to the demographic decline that started at the end of the eighteenth century and to a demand for labour for the industrial revolution and economic growth between 1850 and 1914. Migration was considered as a shortterm answer to labour shortages; refugees were not a political issue, but rather

6 C Wihtol de Wenden, ‘Multiculturalism in France’ in J Rex and G Singh (eds), Governance in Multicultural Societies (Farnham, Ashgate, 2004). 7 C Wihtol de Wenden, Les immigrés et la politique. Cent-cinquante ans d’évolution (Paris, Presses de la FNSP, 1988); Schnapper (n 3).

Why Do the Old-Established Nation States Fail to Recognise Minorities? 83 just an ethical and religious duty before the First World War. France’s discovery that immigration progressively settled after the immigration of workers stopped in 1974, as in other European countries (Germany and Benelux in 1973), led to it re-examining the notion of interculturalism which proposed to help the children of immigrants return to their country of origin with their parents. The influence of other countries in Europe experiencing immigration, such as the United Kingdom, where multiculturalism was positively debated, spread to other European countries (Germany, the Netherlands) including France.8 In France, multiculturalism stands at the crossroads of two notions of citizenship: Jacobinism and liberalism. According to Jacobinism, citizenship means belonging as an individual to the political project of the social contract with few senses of belonging other than the national reference. Liberalism proposes that there is more room for collective belongings such as regional, cultural or religious ones, including foreign origins. Hence, the notion of multiculturalism is often highly contested in public debates, revealing the challenges of (pejoratively named) communitarianism. The word ‘diversity’ is, however, part of integration policies while the fight against discrimination is progressively implemented as a public policy, under pressure from the 2000 EU Directives on discrimination at work and in public institutions (namely, institutional discrimination by the police). France is also historically a multicultural country which progressively tried to unify its internal diversity thanks to centralised administration. In the past, before the French Revolution, the kingdom comprised many provinces with their own laws, languages, parliaments, systems of currencies, weights and measures. In spite of the compulsory use of French language in judicial and administrative life (by the Ordinance of Villers-Cotterêts in 1539), the unification of the French language under the auspices of the French Academy (created by Richelieu in 1635) and the centralisation of administration (namely under Louis XIV and then Napoleon I), most people did not speak French, used their local languages, and lived according to their own uses and cultures. The French Revolution tried to continue the process of unification, thanks to a philosophical and political definition of a non-ethnic nation, built on citizenship as a social contract with the political project (according to the Déclaration des droits de l’Homme et du Citoyen of 1789). During the nineteenth century, republican values went on to embody citizenship (‘Liberté, Egalité, Fraternité’). Public and institutionalised compulsory education was established by the Third Republic in 1882 and 1884 with the intention to educate the population but also to create citizens. Primary education became free of charge, public and secularised. French was the only language authorised at school, and a map of France was present in all schools so pupils could learn the nation’s territory and its départements. In the History of France (1913), written by Ernest Lavisse, a historian at the College de France, for primary-school children, the focus is on the love of France, the



8 J

Rex and G Singh (eds), Governance in Multicultural Societies (Farnham, Ashgate, 2004).

84  Catherine Wihtol de Wenden ideals of the Revolution as founding the French political project and not on any ethnic or cultural belonging. There is no reference to local roots; the ancestors are the inhabitants of Gaul, as well as the Romans and the Francs. This book for children aims at proposing a citizenship based on adhesion to civic values. As Lavisse writes, ‘History has not to be learnt by heart but with heart.’9 The Third Republic tried to prohibit, mainly via the schools, ‘patois’ or dialects (local languages sometimes linked with traditional forms of social and religious practices), particularistic belongings that were viewed as testimonies of old times and factors reinforcing social inequalities, while religious practices of Catholicism were viewed as obstacles to progress. The use of dialects was seen as an obstacle to meritocratic careers in public affairs (namely, the civil service and the army) and to political cohesion. Multiple dialects (eg in Brittany, Provence and Occitania) were prohibited at school and the First and Second World Wars contributed to establishing national unity, with the construction of enemies outside, namely the Germans. But references to local roots are not dead: extreme right nationalism is often fed with references to common roots coming from regional territories to stress autochthony as a legitimate response in the face of new French from immigrant backgrounds. However, multiculturalism has acquired some visibility under pressure from European values – with the European Union promoting diversity and the Council of Europe encouraging the protection of minorities. This pressure has encouraged the protection of languages and cultures of minorities in Europe, of immigration in France as in many European states and in the global context. The claims of local cultures to assert their place in the cultural or political landscape are also an important incentive to give room to their advocacies. While referring to a France of minorities which is viewed as conservative (because they were celebrated during the 1940s), or as a postmodern transgression in the state political discourse which is focused on citizenship, social contract and social cohesion, multiculturalism looks for new contents of citizenship, with freedom of ways of life for individuals and groups. Multiculturalism is defined as part of democracy.10 For a long time the risk of ‘la fracture sociale’ dominated as a main concern; it was contrasted with the fate of minority groups. Now, rising expressions of sovereignty manifest a new struggle against the recognition of diversity, minorities, cultural rights and multiculturalism, a struggle that presents many faces created by elites and globalisation. But paradoxically, extreme rightist movements such as the Rassemblement National celebrate both sovereignty and the local cultures of France as expressions of internal minorities. While multiculturalism spread in European states as a fashion (‘mode’) in the 1990s (especially in Germany, the Netherlands and the United Kingdom), 9 E Lavisse, Histoire de France. De la Gaule à nos jours (Paris, Armand Colin, 2014 [1913]). 10 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1995); C Taylor, ‘La politique de reconnaissance’ in Multiculturalisme, différence et démocratie (Paris, Flammarion, 1997).

Why Do the Old-Established Nation States Fail to Recognise Minorities? 85 when these countries considered it as an answer to the settlement of immigration and under the pressure of globalisation, France was reluctant to adopt the concept in its public policy, referring to Jacobinist values inherited from the French Revolution, with an accent put on the rights of the individual rather than on collective rights of cultural or ethnic belonging. Pluralism as a concept in social and political life to promote diversity is often considered as a taboo by public institutions – with the same applying to ‘plural belonging’ – because these values are seen as opposed to the past French model of integration or assimilation, secularism and republican citizenship. So, the recognition of multiculturalism in public life may be seen as at odds with French political values. The content of citizenship, in alleged juxtaposition or opposition to migration, is always renegotiated. 5.  CAN WE SEE SOME FORMS OF MULTICULTURALISM IN FRANCE? A HISTORICAL ACCOUNT

Historically, before the French Revolution, the early unification of French political power had to live with diverse identities in the ‘provinces’ (Brittany, Flanders, Burgundy, Provence, Normandy, etc). These had diverse statuses in their relationship with the French kingdom. Some provinces were ruled by bishops, others were free of taxes (zones franches, such as Franche Comté); there was also a small kingdom, Navarre (Henri IV was king of France and Navarre), and yet another province required to be ruled by its own natives (Artois). These provinces spoke their own languages, comprising various langues d’oil in the north and langues d’oc in the south. This diversity resulted in resistance towards central power, emblematic being the reluctance of local parliaments to abide by the law, the difficulties of understanding each other among the population and the obstacles to trade due to various customs rights. As Mirabeau said at the eve of the Revolution of 1789: ‘Le royaume n’est encore qu’un agrégat de peoples désunis’ (‘The kingdom is still an aggregate of non-united peoples’); the conduct towards minorities was expressed by the Comte de Clermont Tonnerre: ‘Donnez aux Juifs tous les droits en tant qu’individus mais aucun comme communauté’ (‘Give to the Jews all the rights as individuals but none as a community’), at the meeting of the Etats généraux in 1789. Slavery was ruled by the code noir in the overseas island territories (written under Colbert in the mid-seventeenth century), then prohibited by the revolution, resettled by Napoleon I and then abolished in 1848; the colonies had two levels of citizenship, for national and for indigenous people. During the Revolution, the pluralist trend, taking inspiration from federalism, was taken up by the Girondins, who sought to give legitimacy to regions, rather than minorities, facing power centralised in Paris. But the Girondins lost their battle against the Jacobins, in favour of a central and strong republican regime, a centralism that was then reinforced by Napoleon I. While inspired by

86  Catherine Wihtol de Wenden revolutionary ideas, he reformed the laws, created a unique civil and penal code and centralised the administration. The Third Republic in 1875 went further in teaching the celebration of republican values at school, trying to unify French culture around the values of citizenship, social contract, secularism and through literature for children,11 Ernest Lavisse’s history of France, and geography taught by maps in each classroom of the hexagone (a term launched in Germany about France) made by Paul Vidal de la Blache. But some remembrance of a France of the regions re-emerged in French literature at the end of the nineteenth century (with Frédéric Mistral for example), and during the Vichy regime in the 1940s, which tried to play out regionalism versus the unifying values of the Republic, inspired by rightist ideas (Barrès, Maurras) and regional movements in Brittany and Alsace, respectively. A second revival of regionalism, inspired by May 1968, was espoused by the political left, with writers such as Robert Lafont advocating a regionalism of ‘bottom-up diversity’ against Paris that celebrated the countryside and sought to regenerate rural areas like Lozère, Ardèche, Ariège and Hautes Pyrénées, a trend later expressed by José Bové. Brittany, Corsica and Alsace resisted on the grounds of language and culture. In spite of the settlement of a Corsican Parliamentary Assembly in 2001, when Corsica claimed the recognition of a peuple corse, this proposal was rejected by the Constitutional Council (9 May 1991) with the words: ‘La Constitution ne reconnaît que le peuple français, composé de tous les citoyens français sans distinction d’origine, de race ou de religion’ (‘The Constitution recognises only the French people made of all its citizens without any distinction of origin, race or religion’). Until the beginning of the 2000s, armed factions in Corsica and in the Basque region undertook terrorist activities at the local level, sometimes with fatal results, against the nation state, its rules and its opposition to autonomy, and the Basque population of France used to hide Basque activists from Spain in French territory. This is why the Spanish prime minister, José María Aznar, in 1997, added an amendment to EU asylum policy, according to which one cannot seek asylum in an EU state as protection from an another Member State because all EU countries are considered democratic. The Constitutional Council, the highest court in France, refused the recognition by France of the European Charter of Regional and Minority Languages as contrary to the country’s republican principles (1999). Following the same line of reasoning, France rejected the proposal to use ethnic statistics to define the French population. In 2007, the Constitutional Council maintained that these were contrary to the principles of the unity and indivisibility of the French people. Some republican partisans pleaded that the right to be different would bring more exclusion, compared with universalistic principles and equal rights, opening the debate on the republican myth of equality of rights and chances in unequal social contexts.



11 eg

G Bruno, Le tour de France par deux enfants (Paris, 1877).

Why Do the Old-Established Nation States Fail to Recognise Minorities? 87 The advocates of ethnic statistics, on their side, argued that these statistics would help to fight external discrimination (of foreign origin and from overseas) against the French. This last position opposes those who are pleading for equality of facts versus those in favour of equality of rights, proclaimed by the Constitution even if the social conditions of possible equality are not fulfilled – a question raised by sociologist Pierre Bourdieu on cultural inequalities. However, many exceptions have been created in the supposedly centralised and secularised French model. Some regional languages were authorised in public schools and universities in Corsica and Brittany. The Berber language (spoken by immigrant populations of Maghreb origin who do not speak Arabic) has been recognised as a language of France and can be used in public exams such as the Baccalauréat; the same recognition is applied to Corsican and Breton. Alsace uses its German dialect in local administrations and churches and the archbishop of Strasbourg established offices operating in the Alsatian dialect. Through speaking their own language (Euskera), shared with Spanish Basques, Catalans reinforce their links with Spanish Catalunya, and their language is taught at university level at the University of Perpignan. In Alsace and Lorraine, religions are ruled by according to a Concordat, without separation between church and state, because this reform was made in 1905 when these regions were ruled by Germany. They never asked to come back to be accommodated under the French regime after 1918. In some overseas territories, particularisms towards religions include the acceptance of polygamy (in Mayotte, which recently had to abandon the Qadi as a local judge when it became a French départment) and sometimes the persistence of local monarchs (in Pacific islands such as Vanuatu). The visibility of Islam since the mid-1980s raised the question of dual nationalities for second-generation French of immigrant background, with supposed dual allegiances implied by dual nationality. Dual citizenship has become frequent because second and third generations in France hold the citizenship of their parents coming from Islamic countries where jus sanguinis is applied, while they are also French by birth if they were born in France and if they have stayed several years continuously (jus soli). The question of wearing the headscarf at school introduced another controversy about allegiances. The law of 2004 put an end to this debate, but the conflict with secularism in public schools did not end the question of French identity supposedly challenged by Islam and migration. This issue was raised during the 2022 presidential campaign of Eric Zemmour with his promotion of the ‘great replacement’ theory, but also by episodes of Islamic terrorism (for example, the Bataclan massacre in 2015 and the murder of schoolteacher Samuel Paty in 2020). The expression of multiculturalism with reference to immigration appeared mostly after the freedom granted to foreign associations in the law of 1981 with the claim of the right to be different (‘Droit à la difference’ proclaimed by SOS Racism, founded in 1984) and by many civic associations of second-generation immigrant background. But the ‘Marche des beurs’ of 1993 was mostly led for equality and against discrimination, including two civic claims. These civic associations were

88  Catherine Wihtol de Wenden influential in the adoption of the EU Directives of 2000 against racism and in the decision of the French government to appoint ‘visible’ citizens of ethnic origin as ministers and state secretaries to serve as examples of a republican meritocracy open to citizens from poor families and inner cities. Yet, multiculturalism needs to be renegotiated repeatedly, and the rules are not the same for internal and external minorities, or for those concerning inter-religious minority relations such as those between Protestants, Jews and Muslims. For a long time France has managed its minorities, especially those coming from outside its borders, with mediators who negotiated ‘communitarian identities’ along with republican values, with ambiguity and compromise. Civic mediators were dispersed in inner cities in the 1990s, a kind of multiculturalisme par défaut, unwilling and artificial. Collective identities confronting republican values are still considered illegitimate, which explains the emergence of strong forms of subcultures including communitarianism alongside the state, mainly ruled by poverty, feelings of discrimination and the influence of Islamic networks. At the same time, we are now paradoxically confronted with the search for roots to define French identity, with people looking for local origins to define so-called ‘true French’ as opposed to the French from outside. Michel Wieviorka calls this differentiated racism, an ‘ethnic reference to identity’ in a state where 25 per cent of the population has a grandparent of foreign background, a trend that consists of giving advantages to White people with their roots in their territories.12 6. CONCLUSION

If we compare the place of minorities and indigenous inhabitants in the Latin American constitutions of the early nineteenth century to the place of minority rights in European constitutions, we see that European states did not consider minorities in the making of their states. Now, they are faced with a conflict between the return of populisms, taking inspiration from strong nationalist movements in Europe, and European constitutional texts fighting against various forms of discrimination while stressing the rights of individuals and the values of solidarity, hospitality and equality of rights in nation states. Yet, some forms of identities are trying to fight against the ‘other’ as an enemy to reassert their own belonging, as another form of communitarianism. The accuracy of the notion of a ‘constitutionalism reversed’ becomes apparent in the categorisation practice which is followed among states that have progressively identified themselves with immigration as a legitimate part of the making of their population, emblematic being (although only lately) the United States, Canada and



12 M

Wieviorka, La France raciste (Paris, La Découverte, 1992).

Why Do the Old-Established Nation States Fail to Recognise Minorities? 89 Australia – states where multiculturalism has entered the constitutional realm. States that had an indigenous population as part of their ethnic mix (métissage), illustrative being Latin American states, wrote their constitutions in the early nineteenth century. In European states, where acceptance of immigration as a legitimate part of the population is refuted by extreme right-wing movements and does not find consensus in constitutional courts, the frequent contest of multiculturalism – which is a reality – leads to a reassertion of sovereign states able to define their own culture without immigrants, because multiculturalism remains unpopular in public opinion.

90

6 Participation of Minorities in Public Life: The Political Background and Central Role of Minority Self-governments in Hungary1 BALÁZS VIZI

1. INTRODUCTION

T

here is no doubt that after 1989 one of the characteristic features of democratic transition in Central and Eastern European (CEE) states was the rise of nationalism, inter-ethnic tensions and ethnic-based political mobilisation both in minority and majority societies. Devastating political and social changes resulted in instability and insecurity in various areas of everyday life and drastic transformations often led to the reinforcement of individual and collective identities. Both ‘national minority’ communities and majority nations started to formulate their nation-building endeavours in the new political framework, often leading to contrasting claims and inter-ethnic conflicts. The new democracies in CEE indeed not only faced the challenges of political transition from one-party rule to democracy, but also the problem of redefining the identity of the state and its relation to the existing cultural and ethnic diversity that characterises many of these societies.2 As a result, national, ethnic and linguistic identity issues and minority claims for recognition and extension of specific minority rights had become politically sensitive and were often seen by majority political elites as posing a security threat.3 In this regard, primarily in an effort to prevent conflict, significant

1 Written within NKFI project no 13496. ‘A nemzetiség és etnicitás jogi operacionalizálása’/‘Legal approaches to operationalize nationality and ethnicity’. 2 J Kellas, The Politics of Ethnicity and Nationalism, 2nd edn (Basingstoke, Macmillan, 1998) 216. 3 K Cordell (ed), Ethnicity and Democratisation in the New Europe (London, Routledge, 1999).

92  Balázs Vizi interest emerged concerning the situation of traditional national, ethnic or linguistic minorities and the codification and promotion of their specific rights also at international level. In a European context, the Organisation for Security and Co-operation in Europe and the Council of Europe adopted various instruments on minority rights protection in the 1990s.4 These international instruments were largely motivated by the security concerns on the situation of minorities in Central and Eastern Europe and CEE states accepted these norms as part of their institutional participation in the process of European integration. Even the EU accession conditionality, the 1993 Copenhagen criteria on ‘respect for and protection of minorities’ was interpreted by the European Commission as requiring the ratification of the FCNM by candidate states.5 These internal and external dynamics influenced largely domestic legislations and explain why in most cases the constitutional and legal norms on minority rights were designed as a result of delicate compromise between international interests, domestic political considerations and security concerns. Hungary was not an exception in this regard, but the adoption of a separate law on creating minority self-governments (MSGs) in 1993, and the broad political consensus on promoting minority autonomy arrangements also at international level made the Hungarian approach unique in the 1990s. This chapter makes an attempt to provide insights on how the Hungarian model of minority cultural autonomy emerged, and how it would secure the participation of minorities in political life while identifying major challenges of this MSG system. Decision-making competences, representativity and electoral legitimacy are particularly important in this regard. The main argument here is that even if the normative framework reflects a lasting commitment of majority political elites to provide minority autonomous arrangements there are various theoretical and practical issues that strongly influence how these institutions can actually grant effective participation for minorities. To understand better the case of MSGs in Hungary, it may be useful to take a look at the broader political and international context to start with. 2.  MINORITY RIGHTS, EFFECTIVE PARTICIPATION AND CULTURAL AUTONOMY – INTERNATIONAL STANDARDS

In 1993 not many international documents were available to provide guidelines to the Hungarian legislator and while most of them recognise the importance of 4 The 1990 CSCE Copenhagen Document, the 1992 CSCE Helsinki Document and under the aegis of the Council of Europe, two multilateral treaties, the 1992 European Charter for Regional or Minority Languages (ECRML) and the 1995 Framework Convention for the Protection of National Minorities (FCNM) were particularly important in this regard. 5 See G Sasse, ‘Minority Rights and EU Enlargement: Normative Overstretch or Effective Conditionality?’ in G Toggenburg (ed), Minority Protection and the Enlarged European Union: The Way Forward (Budapest, OSI/LGI, 2004) 68.

Participation of Minorities in Public Life in Hungary  93 minorities’ participation in political life, only a few mention minority autonomy or self-government in this context. At international level there was a major concern that the exclusion of minority communities from public decision-making and from state organs may contribute to ethnic conflicts.6 This explains why minority participation in public life is seen as an ‘essential component of a peaceful and democratic society’, as it was later formulated by the OSCE High Commissioner on National Minorities.7 States, however, reserved a large margin of discretion on deciding what procedures and institutions would secure minority participation. In fact, there is a broad scale how ‘participation’ is understood, ranging from lobbying to making decisions. Political participation may be simply defined as ‘citizens’ activities affecting politics’.8 But it is not part of the definition that political participants must be successful or effective in affecting public policies, although their actions might be expected to have more than a purely symbolic function.9 Universally acknowledged voting rights,10 however, do not guarantee that persons belonging to minorities will be able to elect their representatives in decision-making bodies, neither that they will have control over issues particularly affecting them. And presumably these considerations were behind the introduction of the term ‘effective participation’ in the 1990s in international documents on minority rights. In this context this was understood as creating a real opportunity for minority representatives to be involved in decision-making procedures on issues relating to the situation of minorities. ‘Effective participation’ does not necessarily imply any form of autonomy. States and international organisations alike tend to interpret minority rights mainly within the context of individual human rights. The group-character of minorities and the collective aspects of minority rights are often overlooked by states for security fears.11 Any form of minority autonomy builds on collective rights and implies a collective participation in political life. Brunner and Küpper argue that ‘if collective rights amount to some form of essential

6 A Wimmer, L-E Cederman and B Min, ‘Ethnic Diversity, Political Exclusion, and Armed Conflict’ in Marc Weller (ed), Political Participation of Minorities (Oxford, Oxford University Press, 2010) 3–34. 7 Lund Recommendations on the Effective Participation of National Minorities in Public Life, OSCE High Commissioner on National Minorities, 1999, para I.1. 8 JW van Deth, ‘What Is Political Participation?’ in Oxford Research Encyclopedias – Politics (Oxford, Oxford University Press, 2021) https://doi.org/10.1093/acrefore/9780190228637.013.68. 9 V Bogdanor (ed), The Blackwell Encyclopaedia of Political Science (Oxford, Blackwell, 1991) 482–84. 10 The Universal Declaration of Human Rights (1948) states under Art 21(1): ‘Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.’ Both the International Covenant on Civil and Political Rights (1966) Art 25, and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Art 3. of Protocol I, protect the right to vote and to be elected. 11 S Stroschein, ‘Reconfiguring State–Minority Negotiations for Better Outcomes’ in T Malloy, A Osipov and B Vizi (eds), Managing Diversity through Non-territorial Autonomy (Oxford, Oxford University Press, 2015) 22–28.

94  Balázs Vizi self-determination (political, cultural or other) they become an autonomy’.12 In the literature there are many different typologies for categorising various forms of autonomy.13 A fundamental distinction can be made between territorial and non-territorial – personal or cultural – autonomy. When a certain territory inhabited by a minority that forms a local majority within this territory is defined and vested with a special status to serve the interests of the minority, this qualifies as territorial autonomy. A non-territorial autonomy does not relate to territory, but to all members of the minority living in a state. For non-territorial or cultural autonomy, self-rule, an institution of self-government and authority to exercise control, and to take decisions on issues related to the preservation of minority identity are also essential.14 In this aspect even cultural autonomy may serve as an effective institution of political participation. Most international documents remain silent on autonomous arrangements, or if they do consider them, make reference to MSG conditional on the existing legislation and policies of the state concerned.15 At the universal level, Article 2(2) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities states: ‘Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.’ In addition to that, Article 2(3) adds that ‘persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate on the regional level concerning the minority to which they belong or the regions in which they live’. It should be noted that whereas Article 2(2) speaks about participation in ‘public life’, Article 2(3) recognises the right of persons belonging to a minority to participate effectively ‘in decisions concerning the minority to which they belong’. In this sense, participation ‘in decisions’ implies that states are expected to grant special political rights for persons belonging to minorities with regard to issues that directly affect the minority group to which they belong. The UN Declaration, however, leaves its procedures and institutions of participation open to different interpretations. In practice, the important question is whether a minority group in a society has the right to control its own affairs, ie the right to internal self-determination through its own decision-making bodies, or its participation in public life is 12 G Brunner and H Küpper, ‘European Options of Autonomy: A Typology of Autonomy Models of Minority Self-Governance’ in K Gál (ed), Minority Governance in Europe (Budapest, Local Government and Public Service Initiative, Open Society Institute, 2002) 19. 13 See, among others, M Tkacik, ‘Characteristics of Forms of Autonomy’ (2008) 15(2–3) International Journal on Minority and Group Rights 369–401; R Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts (Washington, DC, US Institute for Peace Press, 1996). 14 Brunner and Küpper made a distinction between personal (non-territorial) and territorial autonomy stating, that ‘personal autonomy does not relate to territory, but to all members of the minority. Thus, the crucial factor is … membership of the minority. … Thus, personal autonomy can be defined as a form of self-government granted to a group, with organs or organizational structures that exercise the various rights and powers of the autonomy.’ Brunner and Küpper (n 12) 26. 15 See, among others, Art 35 of the 1990 CSCE Copenhagen Document, or Art 11 of the 1993 Council of Europe Parliamentary Assembly Recommendation ‘Additional protocol on the rights of minorities to the European Convention on Human Rights’.

Participation of Minorities in Public Life in Hungary  95 limited to the existing state organs, such as the parliament or the government. Considering that in principle states should adopt special measures to secure ‘effective participation’ of minorities, individuals and groups may find different levels of organisations according to their needs, so there should not be any contradiction between autonomy and political participation.16 In a European context state practices offer various examples of how autonomous arrangements may be one form of exercising control over and taking decision on issues specifically relevant to minorities.17 Nevertheless the legally non-binding CSCE Copenhagen Document (1990) reflects a cautious approach on coupling minority participation rights with establishing autonomy in specific circumstances ‘as one of the possible means’ to protect minority identity.18 The legally binding FCNM, adopted in 1995, does not make any reference to autonomy when it formulates the importance of political participation under Article 15: ‘The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.’ Yet the Advisory Committee of the FCNM highlighted in its commentary that while FCNM Article 15 does not provide a right to autonomy as such, nevertheless ‘cultural autonomy arrangements, whose aim is inter alia to delegate competences to persons belonging to national minorities in the sphere of culture and education, can result in increased participation of minorities in cultural life’.19 Relevant competences may include maintaining cultural institutions or schools, the authority to decide on minority language school’s curricula, etc. The OSCE High Commissioner on National Minorities in the Lund Recommendations underlined that autonomy is a useful means to preserve minority identity against majority pressures in democracies20 and also highlighted that ‘personal or cultural autonomy’ may be lived up to by dividing power in cultural issues, allowing members of minorities to exercise control over issues relevant to their group identity.21 The Lund Recommendations similarly mention participation in decision-making at central and local, regional 16 P Thornberry, ‘The Democratic or Internal Aspect of Self-Determination’ in C Tomuschat (ed), The Modern Law of Self-determination (Dordrecht, Kluwer, 1993) 134. 17 See Malloy, Osipov and Vizi (n 11); T Malloy and F Palermo (eds), Minority Accommodation through Territorial and Non-territorial Autonomy (Oxford, Oxford University Press, 2015) 18 Art 35 states: ‘The participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities. The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned.’ 19 Advisory Committee on the Framework Convention for the Protection of National Minorities, Commentary on the Effective Participation of Persons Belonging to Minorities in Cultural, Social and Economic Life and in Public Affairs, 5 May 2008, ACFC/31DOC(2008)001. 20 Lund Recommendations (n 7) Part III. 21 ibid paras 5 and 17–18.

96  Balázs Vizi level, in advisory and consultative bodies, including preferential electoral rules. Obviously, these institutions and procedures do not exclude cultural autonomy, and autonomous bodies may even integrate other forms of political participation. For example, as will be explained below, MSGs in Hungary have a decisive role also in securing parliamentary representation for minorities. Nonetheless, there are no clear standards on how these autonomous bodies should be elected and function.22 Even if we talk about an elected body, an operational cultural or non-territorial autonomy arrangement can secure ‘effective participation’ of persons belonging to minorities in political life, if it has influence in special policy areas relevant to minorities, such as culture or education. 3.  MINORITY SELF-GOVERNMENTS IN HUNGARY AS A FORM OF POLITICAL REPRESENTATION

In Hungary discussions on the conceptualisation of collective minority rights and MSG came up in government circles as early as 1989, while the country was still under a communist regime. As a result, in a milestone modification of the Constitution in 1989, which paved the way for a multiparty democracy in Hungary, minorities were declared to be ‘constituent parts of the State’ and a broad set of minority rights were included in the Constitution.23 At the same time the drafting process of a specific piece of legislation on minority rights was started within the administration. The first democratic government after 1990 gave a new impetus to the legislative work and endorsed the idea of offering nonterritorial autonomy to minorities.24 The drafters of the Minority Rights Act25 did not only seek consensus at political level, but also held broad consultations at expert level.26 Minority representatives were actively involved in the drafting process and international experts were consulted beforehand as well.27 Even the Constitution was modified in 1990 to add a reference (in Article 68) to the right of minorities to self-government. Finally, the adoption of the Minority Rights Act, introducing minority cultural autonomy in 1993, reflected overwhelming political support in parliament and gained international approval as well.28 22 The term ‘cultural’ autonomy is really flexible, and there are many states that apply the term without offering any decision-making or self-governing competence to these ‘autonomous’ institutions. See A Osipov, ‘Non-territorial Autonomy During and After Communism: In the Wrong or Right Place?’ (2013) 12 Journal on Ethnopolitics and Minority Issues in Europe 1, 7. 23 1989. évi XXXI. törvény az Alkotmány módosításáról. Act XXXI of 1989 on the modification of the Constitution, Art 68. 24 R Győri-Szabó, Kisebbségpolitikai rendszerváltás Magyarországon (Osiris, 1998). 25 1993. évi LXVII. tv. a nemzeti és etnikai kisebbségek jogairól. Act LXVII of 1993 on the Rights of National and Ethnic Minorities (hereinafter Minority Rights Act). 26 See G Bíró, ‘Az 1993. évi törvény létrejöttének körülményei’ (2014) 22 Barátság 1, appendix, 3 accessible online: http://nemzetisegek.hu/repertorium/2014/01/belivek_23-44.pdf 27 ibid. 28 The 1993 Minority Rights Act was adopted by a 96.5 per cent majority of the votes in the parliament on 7 July 1993. The new law was welcomed by international organisations, the Venice

Participation of Minorities in Public Life in Hungary  97 The reasons behind this exceptional political consensus are largely historical and are rooted in the specific situation of Hungary: unlike other states in CEE, where substantial and often politically mobilised minorities can be found,29 in Hungary, except for the Roma,30 only small, dispersed, linguistically assimilated minority communities live.31 On the other hand – as a result of border changes following the dismemberment of historical Hungary (Austria-Hungary) after the First World War under the Paris peace treaties – large and politically active Hungarian minority communities live in neighbouring states.32 This fact was often seen as shaping both Hungary’s kin-state policy activism and its domestic minority policy. Unlike in many other states in the region, minority issues were more sensitive for Hungary’s successive governments in external relations than in domestic political context.33 After 1990 all Hungarian governments supported Hungarian minority communities and their claims for extending minority rights within their respective states. On the other hand, minorities living in Hungary did not pose a political challenge to the majority, minority identity has little impact on voting preferences and ever since 1989–1990 ethnic parties always proved to be unsuccessful at general elections.34 Moreover, in the overwhelming majority of municipalities, persons belonging to minorities constitute only local minorities. This distribution precludes any possibility of territorial autonomy. Both in politics and academia many argue that the adoption of an accommodationist minority rights law in 1993 establishing MSGs as a form of non-territorial autonomy was strongly motivated by Hungary’s kin-state policy

Commission praised the draft in early 1993 as the ‘Hungarian proposal for comprehensive legislation in this field [ie the rights of minorities] is without known precedent’. CDL-MIN (1993)004e-rev-restr Strasbourg, 9 February 1993; Opinion on the Hungarian Bill No 5190 on the Rights of National and Ethnic Minorities approved by the Commission during its 14th meeting (Venice, 5–6 February 1993). 29 See C Pan, B Pfeil and P Videsott (eds), National Minorities in Europe. Handbook of European National Minorities, vols I, II (Vienna, Verlag Österreich, 2018). 30 According to the 2011 census, 315,583 people declared they belonged to the Roma minority. However, it should be emphasised that most estimates put the number of Roma much higher, around 600,000–700,000 people. Like other minorities, most Roma in Hungary speak Hungarian as their mother tongue, but unlike other minorities they live in socially marginalised positions. 31 The other twelve minority communities according to the 2011 census represented around 3 per cent of the total population. In numbers: Armenians, 3,571; Bulgarians, 6,272; Croats, 26,774; German, 185,686; Greeks, 4,642; Polish, 7,001; Romanians, 35,641; Rusyns, 3,882; Serbs, 10,038; Slovaks, 35,208; Slovenians, 2,820; Ukrainians, 7,396. See www.ksh.hu/nepszamlalas/nemzetisegi_ adatok_sb (last accessed 20 December 2021). 32 See more on this: N Bárdi, C Fedinec and L Szarka (eds), Minority Hungarian Communities in the Twentieth Century (New York, East European Monographs, 2011). 33 See on that eg G Bíró, ‘Bilateral Treaties between Hungary and its Neighbors after 1989’ in I Romsics and B Király (eds), Geopolitics in the Danube Region: Hungarian Reconciliation Efforts, 1848–1998 (Budapest, Central European University Press, 1999) 347–78 and more recently B Vizi (ed), Magyarország és szomszédai (Paris, L’Harmattan, 2021) 34 See, for more details, B Dobos, ‘Pártrendszer és etnikai pártok Magyarországon’ in N Bárdi and Á Tóth (eds), Önazonosság és tagoltság: elemzések a kulturális megosztottságról: évkönyv, 2011–2012 (Budapest, Argumentum Kiadó, 2013) 205–27.

98  Balázs Vizi activism as providing a ‘positive example’ for its neighbours.35 From another angle it is also a reasonable to argue that the adoption of this minority protection model served multiple goals: it could serve as a reference by building on and further developing international standards,36 and could also serve to prevent neighbouring states and international organisations from criticising Hungarian minority policy. In my view domestic factors were as much determining as foreign policy considerations: as minorities living in Hungary are small, loyal to the state, feel close the majority Hungarian society, and – with the exception of the Roma – are socially and economically integrated, political elites are interested in creating conditions satisfying minority needs and interests. Creating the legal conditions for a functioning cultural minority autonomy could only bring political gains in these circumstances. Irrespective of the original political motivations, the MSG system introduced in Hungary is expected to provide the conditions for ‘effective participation’ of minorities in public life in line with international standards.37 One of the key features of this model of non-territorial autonomy is securing collective political participation of minorities. As long ago as 1993 the preamble of the Minority Rights Act stipulated the following: Considering the fact that self-governments form the basis of democratic systems, the establishment of minority self-governments, their operation and the resulting cultural autonomy is regarded by the National Assembly [the Parliament] as one of the fundamental preconditions of the special enforcement of the rights of minorities.38

The subsequent 2011 Act on the Rights of Nationalities (hereinafter the Act on Nationalities) also made this clear, stating that: ‘Hungary protects nationalities, ensures the fostering of their culture … and to collectively take part in public affairs, promotes the attainment of their cultural autonomy and guarantees the right of their actual communities to self-administration and self-government’ (emphasis added).39 Both laws establish a link between self-government and political participation rights, and at the time of the adoption of the 1993 Minority Rights Act this was a rather progressive approach.

35 See, on this debate, B Dobos and J Molnár Sansum, ‘Cultural Autonomy in Hungary: Inward or Outward Looking?’ (2020) 48(2) Nationalities Papers 251–66. 36 D Galbreath and J McEvoy, ‘European Organizations and Minority Rights in Europe: On Transforming the Securitization Dynamic’ (2012) 43(3) Security Dialogue 267–84. 37 cf N Walsh,’ Minority Self-government in Hungary: Legislation and Practice’ [Summer 2000] Journal on Ethnopolitics and Minority Issues in Europe (JEMIE) 18–20. 38 Minority Rights Act (n 25), Preamble. The translation of the Act quoted here is available on the former minority ombudsman’s website, see www.kisebbsegiombudsman.hu/data/files/128317683. pdf. 39 2011. évi CLXXIX. tv. a nemzetiségek jogairól. Act CLXXIX of 2011 on the Rights of Nationalities, preamble. The text quoted here is the translation of the Act published on the website of the Deputy Commissioner for Fundamental Rights, Ombudsman for the Rights of National Minorities www.ajbh.hu/documents/2664086/2664784/Act+CLXXIX+of+2011+on+the+Rights+ of+Nationalities.pdf/c4f7c5a0-b9f0-faa3-2afd-9b6b4aab9d14?version=1.1&t=1517480205176.

Participation of Minorities in Public Life in Hungary  99 The 1993 Minority Rights Act also acknowledged minorities’ right to parliamentary representation, although the respective legislation creating the necessary conditions for that was missing until 2011.40 The most visible achievement of this minority rights protection model was the central role attributed to MSGs. They serve not only as bodies of cultural autonomy, but also as the most important institutions of political representation of minorities. 4.  A CHANGING CONSTITUTIONAL PARADIGM AFTER 2011

The 1993 Minority Rights Act – which went through a significant technical modification in 200541 – was replaced by new legislation following the victory of the right-wing Fidesz party in 2010. The new Orbán government gained a constitutional majority at the parliamentary elections; a new constitution and a law on minority rights were adopted in 2011 by parliament.42 The new constitution, the Fundamental Law, while it introduced substantial changes in many areas, largely built on the previous constitutional provisions regarding minority rights: it continues to recognise ‘nationalities’ (as minorities are referred to in the new legal terminology)43 as ‘constituent parts’ of the state, together with their individual and collective rights, including also their right to self-government.44 The expression that ‘nationalities living in Hungary shall be constituent parts of the State’45 would mean that Hungarians and minorities form together the political community of the state and this would imply that they share political power. This interpretation is nevertheless highly debated among experts just as the constitutional provision itself.46 40 2011. évi CCIII. törvény az országgyűlési képviselők választásáról. Act CCIII of 2011 on the election of the members of the National Assembly. 41 Ever since the first MSGs were elected there had been an increasing demand from MSGs to review and modify the Minority Rights Act based on the practical experiences of the MSGs. Following long years of consultations between MSGs and government representatives, substantial, though mainly technical-legal, modifications were adopted by the parliament in 2005. 2005. évi CXIV. törvény a kisebbségi önkormányzati képviselők választásáról, valamint a nemzeti és etnikai kisebbségekre vonatkozó egyes törvények módosításáról. Act CXIV of 2005 on the election of minority self-government representatives and on the modification of certain Acts regarding national and ethnic minorities. See also O Szabó, A kisebbségi törvény és módosítása avagy: a „nagyon várt, kiemelkedő jelentőségű, sanyarú sorsú torzszülött” in E Kállai and E Törzsök (eds), Cigánynak lenni Magyarországon. Jelentés (Budapest, EÖKIK, 2005) 108–30. 42 The Fundamental Law of Hungary, adopted by the National Assembly on 18 April 2011. https://njt.hu/translated/doc/TheFundamentalLawofHungary_20190101_FIN.pdf (last accessed 20 December 2021). 43 In this chapter the terms ‘nationality’ and ‘minority’ are used interchangeably, like the terms ‘minority self-government’ and ‘nationality self-government’. 44 Fundamental Law of Hungary (n 42) Art 29. 45 ibid. The Preamble of the Fundamental Law also states that: ‘We proclaim that the national minorities living with us form part of the Hungarian political community and are constituent parts of the State.’ 46 One of the major criticisms is that since the Fundamental Law was adopted in the name of the ‘Hungarian nation’ it would make more sense to declare that minorities are constituent parts of

100  Balázs Vizi The Fundamental Law, especially in its preamble, offers an ethnocentric image of a ‘Hungarian nation’, standing in clear contrast with other parts of the constitution that reflect a more inclusive ethnically neutral, political concept of the ‘nation’.47 It is true that with the explicit reference to the protection of Hungarian language as an official language48 and adding a historical-symbolic preamble to the Constitution, the Fundamental Law marks a departure from the previous technical-neutral constitutional terminology. The question arising in that regard could be subsumed to the following: does the Fundamental Law offer a multicultural image of society or does it codify the dominance of the majority nation? By changing the structure and wording of the Constitution, the Fundamental Law now follows the constitutional traditions of other states in the region developed in the early 1990s.49 Conversely, the overall text of the new Constitution is confusing in this regard: it codifies simultaneously a symbolic national-ethnic character and recognises the special ‘state constituent’ status and collective rights of minorities.50 Therefore, instead of creating a new conceptual framework, the Fundamental Law just confusingly blends opposing – ethnocentric and multicultural – images of the political community. MSGs and the minority ombudsman were involved in the drafting process of the new constitution, yet they did not raise any open criticism on its conceptual background, although the ombudsman also pointed to the ambiguities of the final legal text.51 Regarding political participation, the constitutional guarantees of

the nation, but no legitimising force is attached to being ‘constituent parts of the State’. See, on the relevant debate, AL Pap,’ Sarkalatos átalakulások – a nemzetiségekre vonatkozó szabályozás’, MTA Law Working Papers 2014/52. 47 See the Preamble, and for a thorough analysis of the role of national symbols in the constitution, see A Jakab, ‘Defining the Borders of the Political Community: Constitutional Visions of the Nation (24 April 2012), available at SSRN: https://ssrn.com/abstract=2045648. There are experts who argue that the Fundamental Law does not meet the Rawlsian requirement of moral equality, and – even if implicitly – creates a hierarchy between ethnic Hungarian and non-Hungarian segments of the population. See B Majtényi, ‘Történelmünk hagyománya’ (2011) 15(1) Fundamentum 56–61. 48 Art H. 49 Similar provisions on state language and on national unity can be found in the 1991 Constitution of Romania (Arts 13 and 1, respectively) and in the 1992 Constitution of the Slovak Republic (Art 6) as well. And similar, exclusive preambular references to the ethnic majority’s historical traditions appear in the Slovak Constitution and in the 1990 Constitution of Croatia. 50 The Fundamental Law’s Preamble starts with a solemn declaration stating that ‘we the members of the Hungarian nation … with a sense of responsibility for every Hungarian, hereby proclaim the following’, but later declares that nationalities are constituent parts of the State and ‘We [the members of the Hungarian nation] commit to promoting and safeguarding our heritage, our unique language, Hungarian culture, the languages and cultures of nationalities living in Hungary’ (emphasis added). 51 The minority ombudsman welcomed the preservation of collective rights and MSGs in the Fundamental Law, and also – in line with the position of MSG representatives – the replacement of the term ‘minority’ with ‘nationality’, just like the firm recognition of free choice of identity. However, he criticised that in contrast with the previous constitutional provisions, the new constitution does not mention obligatory public media services on minority languages. E Kállai, ‘A nemzetiségi jogok helyzete Magyarországon a jogszabályváltozások tükrében’ in I Stipta (ed), Collegium Doctorum Konferencia (Miskolc, Bíbor Kiadó, 2012) 1–10.

Participation of Minorities in Public Life in Hungary  101 MSG are clearly reinforced by the Fundamental Law.52 However, the provision on the presence of minorities in the parliament was reformulated and instead of ‘representation’ in the National Assembly the Fundamental Law refers only to ‘participation’ in the work of the parliament.53 Nevertheless, the ideological confusion reflected in the Fundamental Law is moderated by the Act on the Rights of Nationalities adopted in 2011, which clearly reflects an accommodationist approach maintaining the fundamental principles and institutions of the previous legislation. However, unlike in 1993, there was no unanimous political support behind the 2011 Act on Nationalities; the government proposal was based on the fundamental concept of cultural minority autonomy and the recognition of collective rights. The major criticism from opposition parties in the parliamentary debate questioned whether the new law signalled any improvement in respect of the previous 1993 Act. The government argued that the new legislation translates the Fundamental Law’s minority rights provisions in practice and creates a coherent legal background for minorities to preserve their identities.54 The Orbán government, as was reflected also in the Fundamental Law, clearly distinguished itself from previous governments in promoting an ethnocentric national identity in different symbolic areas. However, the internal and external factors that shaped an accommodationist minority rights protection approach in 1993 remained unaltered in 2011 as well. This may explain the consistent governmental commitment to promote the same minority protection values in 2011 as in 1993. Indeed, just looking at the legal provisions in line with the post-1989 legal tradition, the 2011 Act invariably sees autonomy as a manifestation of collective rights.55 And the MSGs were designed by law to be the institutional guarantee of the cultural autonomy of minorities, allowing them to make decisions especially on the founding, taking over, and maintaining cultural and educational institutions and media at both local and national level.56 The tasks assumed 52 Art 29(2)–(3) reads as follows: ‘(2) Nationalities living in Hungary shall have the right to establish their selfgovernment at both local and national level. (3) The detailed rules relating to the rights of national minorities living in Hungary, the national minorities, the requirements for recognition as a national minority, and the rules for the election of the self-governments of national minorities at local and national level shall be laid down in a cardinal Act.’ A cardinal Act shall be adopted by a two-thirds majority of the members of parliament present. 53 Arts 29 and 2, respectively. In addition to that it terminated the position of an independent Minority Rights Ombudsman. Between 1995 and 2011 there was a specialised ombudsperson in charge of national and ethnic minority protection. The Fundamental Law has established an unified ombudsperson system in which the minority commissioner serves as a deputy of the general commissioner for fundamental rights, but without the authority to take measures independently. 54 Art 2(3) provides the following definition of national cultural autonomy: ‘[A] collective nationality right that is embodied in the independence of the totality of the institutions and nationality self-organisations under this Act through the operation thereof by nationality communities by way of self-governance.’ 55 See the minutes of the parliamentary session on 29 November 2011 (accessible on www.parlament.hu) At the end of the debate, leftist opposition parties voted against the proposal, which was finally adopted by an 83 per cent majority. 56 Arts 25–26 of the 1993 Minority Rights Act and Art 115 of the 2011 Act on Nationalities.

102  Balázs Vizi by MSGs cover the same policy areas as before, and the Act on Nationalities vests the nationality self-governments with consultative, decision-making and co-operative competences on various matters.57 The new legal provisions define ‘public duties’ of nationality self-governments and allow them to assume additional public tasks, qualified by the financial resources available.58 Most of the competences are attributed to the local and state levels.59 As before, these tasks cover education, language use, and cultural activities and institutions. Under the new legal provisions nationality self-governments are elected directly at local, regional (in the counties and in Budapest) and state levels, and are entitled to adopt their own organisational and internal procedural regulations.60 At local level, MSGs had generally weak powers, and the modifications of the 1993 Act on Minority Rights gradually extended them. The most powerful right was a veto, which, after 2005,61 covered any municipal decrees affecting the minorities in the fields of local media, the promotion of traditions and culture, and the collective use of language. Without the consent of the local MSG no decisions could be made concerning minority education, and the heads of minority institutions could not be appointed either. The 2011 Act on Nationalities maintained the veto rights concerning appointments to minority institutions, but on other matters, the local MSG can veto municipality resolutions only, but not decrees.62 This may be only a formal question, but there are concerns that municipality councils can easily evade minority veto if they adopt relevant decisions in the form of a decree.63 This means that exercising effectively minority veto rights may depend on the co-operative and benevolent attitude of the respective municipality council. Indeed, the major challenges for the local nationality self-governments are related to their co-operation with local municipality councils. The Act on Nationalities, under Articles 27 and 33–49, stipulates, with regard to different policy issues, the right to consultation or the right to agreement to be exercised by nationality self-governments. Such rights are granted in relation to public

57 Art 115 of the 2011 Act on Nationalities. 58 Art 116 also states that ‘within the boundaries of the available resources’ local nationality selfgovernments may take as voluntary public duties (i) the establishment of nationality institutions; (ii) establishment of decorations, establishment of the conditions and rules of awarding; (iii) invitation of nationality tenders, establishment of scholarships. 59 As the regional governments in the counties, the regional nationality self-governments do not play an important role. 60 Arts 27 and 37 of the 1993 Minority Rights Act and Art 92 of the 2011 Act on Nationalities. The official translation of the 2011 Act uses the terms for the different levels of MSGs: local nationality self-government, regional nationality self-government and nationality self-government with nationwide competence. Here for better clearance, instead of ‘nationwide competence’ I opted for the term ‘state-level nationality self-government’. 61 See above n 41. 62 Art 81(1). 63 cf Kállai (n 51) 6.

Participation of Minorities in Public Life in Hungary  103 education, and cultural self-government affecting the nationality concerned.64 Based on the ombudsman’s annual reports these consultative and co-operative rights are often deemed superfluous and sometimes ignored by respective municipal and state authorities.65 Just like the previous legislation, Article 80 of the 2011 Act on Nationalities states that ‘the local municipality shall provide the personal and material conditions necessary for the operation of the local nationality self-government’; however, there are often tensions on how the local municipality effectively fulfils its duty. Lack of financing, and tensions between minority representatives and the local municipality council may render accessing proper infrastructure difficult.66 In addition, Roma nationality self-governments face other specific problems related to the vulnerable socioeconomic situation of Roma people. There are many cases where the local Roma nationality self-government is forced to mediate between municipality and the Roma community on the distribution of social aid, issues related to public employment, etc, that are certainly far beyond its legal powers.67 The state-level nationality self-governments are expected (i) to fulfil the duties of interest representation and interest protection of the nationality in those localities where there is no nationality self-government; (ii) to engage in interest representation at national level; (iii) to represent and protect the interests of the nationality represented by it at domestic level; and (iv) to maintain a domestic network of nationality institutions in the interest of the development of nationality cultural autonomy.68 The government is obliged to consult nationality self-governments operating at state level with respect to issues concerning the educational self-administration of people belonging to that nationality. Moreover, the state-level nationality self-government may request information relevant to the nationality from public authorities and agencies. It shall furthermore exercise the right to consent on issues directly affecting the nationality in connection with development plans and it shall be consulted on bilateral and multilateral international agreements related to the protection of nationalities.

64 However, this is not an absolute veto right: according to the law each party has thirty days to issue its opinion which may be postponed by another thirty days. The expiry of this time limit mandates the court to take a decision in substitution. 65 See the report of the ombudsman and his deputy responsible for nationality rights on the anomalies of nationality self-governments’ right to agreement in relation to educational and cultural institutions. Az alapvető jogok biztosának és a Magyarországon élő nemzetiségek jogainak védelmét ellátó biztoshelyettesének közös jelentése az AJB-672/2020. számú ügyben a nemzetiségi önkormányzat nemzetiségi nevelési-oktatási intézményvezetői megbízásához szükséges egyetértési jogának gyakorlásával összefüggésben 2020. április 21, www.ajbh.hu (accessed 18 February 2022) 66 ibid, and ÁM Balázs, ‘A magyarországi nemzetiségek hatékony közéleti részvétele’ [2018] (1) Pro Minoritate 94–95. 67 Beszámoló az alapvető jogok biztosának és helyetteseinek tevékenységéről (Report on the Activities of the Commissioner for Fundamental Rights of Hungary and his deputies) (2013) 82. The same problem repeatedly appears every year in the ombudsman’s reports. www.ajbh.hu/en/ eves-beszamolok (last accessed 18 February 2022) 68 Art 117(2) of the Act on Nationalities.

104  Balázs Vizi The state-level nationality self-governments (where applicable) also participate in the works of the respective intergovernmental committee on minority issues established by bilateral treaties between Hungary and its neighbouring states.69 At state level, the government seems to respect the consultative rights of nationality self-governments more than the local level does.70 A recurring criticism of this system of minority autonomy is that nationality self-governments do not have a stable budgetary allocation. Both the Lund Recommendations and the FCNM Advisory Committee underline the importance of granting access for autonomous bodies to appropriate financial resources.71 Financial constraints may indeed hinder minorities from maximising all the possibilities that the law offers to them. Although according to the law parliament should allocate the necessary sources for exercising public duties, the amount of financial support from the state may vary significantly from year to year.72 In response to these difficulties, in recent years the government created a more stable financing model for nationality self-governments, directly linking budgetary allocations to specific duties.73 In principle this means that MSGs shall not be constrained in overtaking nationality schools or other institutions, since the respective financial resources are granted by law. Beyond domestic and local governmental subsidies, domestic and foreign organisations, foundations, and private individuals may contribute to the financial support of the MSGs in Hungary too. Certainly external resources vary greatly, and minorities that have a strong kin-state are likely to be able to obtain more external funding, but in effect domestic budgetary sources are determining for all MSGs. 5.  RECOGNITION AND REPRESENTATION

The effectiveness of minority participation does not only depend on the competences assigned to their representative bodies, in this case to the MSGs. Instead, the legitimacy and representativity of these self-governments are equally important. In this context the crucial question is what the conditions for recognition as a minority are and the criteria for persons belonging to minorities to participate in the election of autonomous bodies? Any legal provision defining the 69 See, for a detailed analysis, C Varga, Political participation and representation of national minorities: the work of intergovernmental committees on national minorities between Hungary and its neighbors (PhD thesis, Corvinus University of Budapest, 2021) http://phd.lib.uni-corvinus. hu/1142/1/varga_csilla_den.pdf. 70 Balázs (n 66) 96. 71 Lund Recommendations (n 7) Explanatory Note, III.14.; Advisory Committee Commentary (n 19) paras 138–39. 72 B Dobos, ‘The Minority Self-governments in Hungary’, Online Compendium Autonomy Arrangements in the World (January 2016) www.world-autonomies.info, 21–22; and also F Eiler and N Kovács,’ Minority Self-governments in Hungary’ in Gál (n 12) 184. 73 See Fifth Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 26 May 2020, 22–23, https://rm.coe.int/5th-op-hungaryen/16809eb484 (last accessed 15 January 2022).

Participation of Minorities in Public Life in Hungary  105 subjects of minority rights will somehow arbitrarily decide the criteria on which ‘national’, ethnic, linguistic groups will be recognised by the state as a minority and will ultimately delineate membership in minority communities as well. In the literature there is a broad consensus that in everyday life individual identities may be contextual, multiple identities.74 As the Ljubljana Guidelines on Integration of Diverse Societies (2012) issued by the OSCE High Commissioner on National Minorities clearly state: ‘Diversity is a feature of all contemporary societies and of the groups that comprise them. The legislative and policy framework should allow for the recognition that individual identities may be multiple, multi-layered, contextual and dynamic.’75 Self-identification and legal definitions are particularly important when group boundaries are fluid and when in specific situations (eg registering for elections) the individual needs to make a clear declaration. There was fierce debate as long ago as 1991–1993 during the drafting of the Minority Rights Act between the government and minority representatives on the list of minority communities that were to be recognised by law. As freedom of association was granted from 1988, different minority communities established ‘representative association’ and drafted demands for legal recognition as a minority. Minority civil organisations formed the Minority Roundtable in 1991 as a forum to elaborate their common position on governmental minority policies and on a new minority rights legislation.76 For example, for a while Ukrainians and Rusyns were considered as one minority community; the Rusyn minority representatives successfully lobbied for separate recognition. On the other hand, for a while during the drafting process Jewish organisations participated in the work of the Minority Roundtable, but their representatives subsequently withdrew from the process and finally were not recognised as a ‘national’ or ethnic minority by law.77 In fact, minorities that participated in the Minority Roundtable and therefore in the consultations during the drafting process managed to secure their legal recognition.78 As the 1993 Act on Minority Rights already codified the list of recognised minorities, Appendix 1 of the new 2011 Act on Nationalities names the same thirteen minority communities which ex lege are entitled to collective rights, while the law requires a personal selfidentification with one of these nationalities for the enjoyment of individual rights. The minorities recognised by the Act are the following: Bulgarian, Greek,

74 See A Wimmer, ‘The Making and Unmaking of Ethnic Boundaries: A Multilevel Process Theory’ (2008) 113(4) American Journal of Sociology 970; and F Barth (ed), Ethnic Groups and Boundaries (Long Grove, IL, Waveland Press, 1998). 75 The Ljubljana Guidelines on Integration of Diverse Societies, OSCE High Commissioner on National Minorities, 2012, para 5. 76 T Doncsev, ‘A magyarországi kisebbségi törvény’ (2004) 13(1) Kisebbségkutatás 94–96. 77 Szabó (n 24) 69. 78 B Dobos, A magyarországi kisebbségpolitika szakpolitikai elemzése. A kisebbségi törvény példája (PhD dissertation, Budapest Corvinus University, 2009) 155–58. http://phd.lib.uni-corvinus. hu/517/1/dobos_balazs.pdf.

106  Balázs Vizi Croatian, Polish, German, Armenian, Roma,79 Romanian, Ruthenian (Rusyn), Serbian, Slovakian, Slovenian and Ukrainian. This means that these thirteen minority communities by law are considered as meeting the criteria of the legal definition of ‘nationality’. Similar to the 1993 Minority Rights Act, the 2011 Act on Nationalities offers a clear definition of minorities under Article 1: Pursuant to this Act, all ethnic groups resident in Hungary for at least one century are nationalities which are in numerical minority amongst the population of the State, are distinguished from the rest of the population by their own language, culture and traditions and manifest a sense of cohesion that is aimed at the preservation of these and at the expression and protection of the interests of their historically established communities.80

The Act allows – in the same way as the previous law – for any other minority group to apply for recognition as a minority if it fulfils the conditions under Article 1 and is supported by at least 1,000 citizens who profess to belong to it (Article 148(3)).81 Parliament takes the final decision on recognition, but is required to consult the president of the Hungarian Academy of Sciences regarding the fulfilment of the legal criteria, ie the legal definition of ‘nationality’ (minority). To date, there has been no successful application. The Bunjevcis have made several attempts since 1993 to be recognised under the law. In fact, they collected the required number of signatures each time; however, there is a political consensus in parliament that Bunjevci is a regional identity within the Croat minority.82 In 2005, parliament rejected the recognition of Huns; in 2018, it did not accept initiatives for the recognition of Seklers (Székelys) and Russians. Other communities, such as the Italians and Jews failed to collect the necessary number of signatures.83 In effect until now the only minorities to gain access to legally granted minority rights are those that participated in the Minority Roundtable and in the drafting of the first Minority Rights Act in the early 1990s. 79 The previous 1993 Minority Rights Act used the term ‘Gypsy’, which was replaced by the term ‘Roma’ in 2011. 80 In fact the subjects of the law are determined by a definition that builds a great deal on Capotorti’s definition (UN Doc E/CN.4/Sub.2/384/Rev.1, 1979, 5–12) and it uses the main elements of the definition applied in Art 1 of the Council of Europe 1201(1993) PA Resolution (Council of Europe Parliamentary Assembly Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights), although the requirement of one hundred years residence of a nationality was seen as problematic by the Venice Commission. CoE European Commission for Democracy through Law (Venice Commission) Opinion on the Act on the Rights of Nationalities of Hungary, 19 June 2012, CDL-AD (2012)011. 81 The most important change introduced by the new law in this regard is an apparent opening towards immigrants: all people who reside in Hungary are entitled to enjoy minority rights if they so wish, although they do not have passive voting rights at the elections of nationality self-governments. 82 See the statement submitted by the President of the Hungarian Academy of Sciences to the Parliament in 2006, www.parlament.hu/irom38/00960/00960.pdf. It should be noted that Bunjevci are recognised as a minority in Serbia, but the Croatian government considers this as a hostile move to divide the Croat community in Serbia. 83 Pap (n 46) 13–14.

Participation of Minorities in Public Life in Hungary  107 6.  ELECTORAL LEGITIMACY

One of the key dilemmas of Hungarian legislation is the electoral legitimacy of self-governments: should voting rights be based on a free choice of identity or should there be some formal requirements such as an individual’s affiliation to a specific minority community? At the time of drafting the 1993 Minority Rights Act, minority representatives participating in the consultations with the government rejected the idea of any form of electoral registration.84 Consequently, the original legal regulation did not prescribe any formal condition for voting rights; any Hungarian citizen having the right to vote at the municipal elections could vote in MSG elections. This provision did not only make voting safe for persons one way or another affiliated with a minority, but it opened the way for a large number of ‘sympathy votes’ from people who did not belong to the minority but nonetheless voted in the elections. Even for standing in the elections, registration was based on the individual’s self-declaration and no one was entitled to examine whether she/he met the criteria of the legal definition of belonging to a ‘minority’.85 As mentioned above, concerning knowledge of minority language, cultural affiliation, etc, such practice was often criticised for facilitating ‘ethno-business’ and the emergence of ‘ethnic entrepreneurs’, which meant that after the elections, MSGs were also established in localities where no member of that minority community had been registered during the census. This led to protests from members of the concerned minority who complained that people elected for these self-governments did not belong to the minority they claimed to represent. To combat this phenomenon, the 2005 modification of the law introduced the minority electoral list, requiring everyone who wished to vote in MSG elections to enrol.86 The only formal requirement was that the voters had to declare their minority affiliation and had to prove their right to vote in the local municipality elections. No objective criteria (language proof, etc) were prescribed. Local MSG elections could only be held if on the day of election there were at least thirty voters enrolled on the list. However, the modifications introduced in 2005 could not completely deter ‘ethnic entrepreneurs’: in both the 2006 and 2010 MSG elections there were reports of abusers who allegedly or openly did not belong to the minority they were elected to represent.87 The 2011 Law on Nationalities introduced stricter requirements linking electoral rights to previous census results. However, this gave rise to concern because the declaration 84 B Majtényi, A nemzetállam új ruhája (Budapest, Gondolat, 2007) 182–83. This position was understandable as older generations had bad memories of state registry of national identity, which was the basis of expulsions, persecutions and population exchange of the 1940s during and after the Second World War. Minority organisations almost unanimously rejected the idea of introducing electoral registration. 85 Art 1(2) 1993 Minority Rights Act. 86 See above n 41. 87 E Szalay-Sándor, ‘A 2014. évi választások a magyarországi nemzetiségekért felelős biztoshelyettes szemszögéből’ (2014) 23(1) Kisebbségkutatás 7.

108  Balázs Vizi of national identity had been optional in the 2011 census and at the time of data collection no one had been informed that later these data would be used for the election of nationality self-governments under the new law. Based on the experiences of the 2014 and 2019 elections, the law was modified. The law now requires either the state-level nationality self-governments to declare their intent to hold elections in a locality or the presence (based on the latest census) of at least twenty-five persons belonging to the nationality – in case there had already existed a nationality self-government in the locality concerned. As the latest elections in 2019 have shown, the regulation introduced by the Act on Nationalities seems to have been successful in combating the phenomenon of ‘ethno-business’, although it also had some backlash for smaller minority communities.88 Table 1 illustrates clearly that small minority communities could not establish local ‘nationality self-governments’ in approximately half of the settlements where they actually lived according to the 2011 census. Table 1    Population Population living in living in localities where localities where nationality Percentage nationality self-government of total self-government was elected nationality was elected (2014) population (2019)

Percentage of total nationality population

Nationality

Census (2011)

Roma

315,583

290,566

92%

288,701

91%

Croats

26,774

22,242

83%

22,589

84%

185,696

150,006

81%

149,863

81%

Slovaks

35,208

26,827

76%

26,876

76%

Greeks

4,642

3,406

73%

3,400

73%

Germans

Slovenes

2,820

1,799

64%

1,799

64%

10,038

6,304

63%

6,344

63%

Rusyns

3,882

2,393

62%

2,361

61%

Poles

7,001

3,804

54%

4,026

58%

Armenians

3,571

2,041

57%

2,040

57%

Bulgarians

6,272

3,155

50%

3,173

51%

Romanians

35,641

17,267

48%

17,880

50%

Ukrainians

7,396

1,810

24%

3,307

45%

Serbs

Source: B Dobos, A személyi elvű kisebbségi autonómiák Kelet-Közép-Európában (Kalligram, 2020) 169 and National Election Office, www.valasztas.hu. 88 See also B Dobos, A nemzetiségi önkormányzatok rendszere Magyarországon (https://kisebbsegkutato.tk.hu/uploads/files/Dobos_UNKP_Magyarorszag_orszagtanulmany.pdf (last accessed 15 January 2022).

Participation of Minorities in Public Life in Hungary  109 Obviously the reasons why in many localities minorities could not reach the minimum criteria for electing their self-governments may be manifold, including demographic decline, but it is impossible to assess these factors before the next national census, which will take place in October 2022. In any case linking census data with ‘nationality self-government’ elections at this moment remains problematic.89 7.  NATIONALITY SELF-GOVERNMENTS AND PARLIAMENTARY REPRESENTATION

Like in many other states, minorities face unsurmountable difficulties in gaining seats in parliament under the Hungarian general rules of electoral procedures because small minority communities are unable to obtain the minimum number of voters to pass the threshold, or in the case of a larger minority, such as the Roma, the minority community itself may be passive and not interested in ethnic-based political mobilisation. This problem emerged even at the time of the drafting of the 1993 Minority Rights Act. Article 20 of the Minority Rights Act stipulated a vague and unspecified obligation for parliamentary representation of minorities, but it was never actually instituted.90 Hungary was repeatedly criticised by international bodies, kin-states of minorities and civil society actors for not meeting its self-declared obligations, but for almost two decades no viable solution was adopted.91 The constitutional changes introduced in 2011 brought a new impetus to this debate, the Fundamental Law granted the right of minorities to ‘participation’ in parliament and the Orbán government was determined to use its constitutional parliamentary majority to break this stalemate. Finally the adoption of the new laws on the electoral system introduced the relevant provisions for parliamentary representation of nationalities.92 This new system offers preferential seats in the 199-member parliament as part of the full quota of ninety-three disposable seats that are assigned from domestic party lists.93 89 Synergies of National and International Protection of Minorities Living in Hungary – Report on the Activities of the Ombudsman for Minority Rights of Hungary (2019) available at www.ajbh. hu/documents/14315/131278/SYNERGIES+OF+NATIONAL+AND+INTERNATIONAL+PRO TECTION+OF+MINORITIES+LIVING+IN+HUNGARY+E_BOOK.pdf/20ff4ec2-eda2-8b568608-854c122cd051 (last accessed 15 January 2022). 90 Art 20(1) simply stated that: ‘Minorities have the right – as determined in a separate Act – to be represented in the National Assembly.’ This separate act was not adopted until 2011. 91 See eg the Council of Europe Committee of Ministers Resolution ResCMN(2001)4 on the implementation of the Framework Convention for the Protection of National Minorities by Hungary. 92 Arts 86–87 of the 2013 Act on the electoral procedure, 2013. évi XXXVI. törvény a választási eljárásról; Arts 7–18 of the 2013 Act on the election of parliamentary representatives, 2013. évi CXXX. törvény az országgyűlési képviselők választásáról szóló 2011. évi CCIII. törvény módosításáról. 93 The 199 members of the National Assembly are to be elected by two methods; 106 are elected in single-member constituencies by first-past-the-post voting, with the remaining 93 elected from a single nationwide constituency from party lists mostly by proportional representation. Art 3 2011.

110  Balázs Vizi If any of the nationality lists wins a preferential seat, then the seats allocated between party lists will be reduced by the corresponding amount. A particular restriction on nationality lists was introduced by the law: the nomination to minority lists is the exclusive right of domestic-level ‘nationality self-governments’. This shows that the parliamentary representation of minorities is based upon a representation model based on MSGs, which implies that other actors, such as parties or NGOs, have no influence on the composition of the list and cannot nominate candidates as a consequence. Only a single preferential seat can be won by each nationality; to win more than one seat, a nationality list can compete for additional seats based on the general election rules that require securing enough votes to meet the 5 per cent threshold. Multiple identities are not recognised and each individual can only enrol in one nationality register. From nationality lists a mandate is obtained when the preferential quota of votes is reached, ie one-quarter of all votes submitted for national party lists resulting in one mandate. At the 2014 elections, this quota would have meant 22,022 votes – no nationality candidate gained a seat. In 2018 the German list got enough votes to gain a seat in parliament. It is worth noting that Hungary has seven nationalities which have a total population of less than 8,000,94 which means that these would not have been able to meet the preferential conditions even if every single nationality group member who had the right to vote had registered in the nationality electoral roll and would have voted for the ‘nationality list’. According to the law only state-level ‘nationality self-governments’ can nominate the candidates on ‘nationality lists’ and they are required to get the supporting signature of at least 1 per cent of nationality voters enrolled in the central registry or a minimum of 1,500 endorsements from registered nationality voters.95 A candidate on the list must be someone who is also enrolled in the central registry as a person affiliated with the given nationality, and, moreover, a list must contain at least three candidates. An important limiting condition is that two or more domestic (level) nationality self-governments cannot draw up a joint list.96 In accordance with the law, any national minority that had drawn up a nationality list but failed to win a mandate by such list is represented in parliament by a ‘nationality advocate’. The nationality advocate may take office regardless of the number of votes submitted for the list drawn up by the ‘nationality self-government’; the nationality advocate is not a full member of the

évi CCIII. Törvény az országgyűlési képviselők választásáról (Act CCIII of 2011 on the election of members of parliament). 94 See above, Table 1. 95 Art 9 2011. évi CCIII. törvény az országgyűlési képviselők választásáról 96 AL Pap, ‘Recognition, Representation and Reproach: New Institutional Arrangements in the Hungarian Multiculturalist Model’ in B Vizi, N Tóth and E Dobos (eds), Beyond International Conditionality (Baden Baden, Nomos, 2017) 101–36.

Participation of Minorities in Public Life in Hungary  111 parliament, however. They are not entitled to vote in sessions of the parliament, and may only speak in plenary if the agenda item in question may, according to the Committee of the Parliament, be relevant to the rights or interests of nationalities. The nationality advocate-system ensures the participation of nationalities in the work of parliament, but does not carry the same weight as a fully fledged parliamentary representation.97 State-level ‘nationality self-governments’ assume a crucial role in gaining parliamentary representation for their nationalities, yet extra mobilisation efforts may be needed. At general parliamentary elections citizens having voting rights can cast two votes: one for an individual candidate running for the local constituency and another vote for party list. The parliament is composed of 106 MPs elected in individual constituencies and 93 MPs elected on party lists. People belonging to nationalities face a difficult choice at parliamentary elections: those who register as ‘nationality voters’ and vote for their ‘nationality list’ are not allowed to vote for party lists, only for individual constituency candidates. In this way the law forces the individual, the citizen to choose between his/her political preferences and her/his minority identity representation in the parliament. Indeed, the number of people registered for ‘nationality self-government’ elections was more than three times higher than the number of people registering as nationality voters for the parliamentary elections. Based on the number of registrations at the 2022 parliamentary elections, only the Roma and German self-governments were able to mobilise enough voters to have the chance to get a seat.98 As a result of deep internal political divisions, the Roma nationality self-government was unable to adopt and register the list of candidates by the legal deadline. As a consequence registered Roma voters would not be able to elect their representative to parliament, and without a registered list not be even a Roma parliamentary spokesperson would be elected.99 Although the German nationality self-government was successful in registering its list and had the necessary number of registered voters, thanks to the high participation at the 2022 parliamentary elections they indeed could get an MP elected.100 The other eleven nationality self-governments also registered their lists, but the number of their registered voters proves far from giving the necessary support 97 It should also be noted that the concept of ‘agenda item relevant regarding the rights or interests of nationalities’ is not well defined. 98 As of 20 February 2022, 31,538 people registered for the election of the German list and 32,877 people for the Roma list. National Election Office, www.valasztas.hu (last accessed 20 February 2022) 99 Statement of the president of the National Roma Nationality Self-government, 1 February 2022, www.oronk.hu/, and media reports on the last session of the national Roma self-government, B Kaufmann, Botrányos közgyűlés után nemzetiségi lista nélkül maradt az Országos Roma Önkormányzat, https://444.hu/2022/02/01/botranyos-kozgyules-utan-nemzetisegi-lista-nelkul-maradtaz-orszagos-roma-onkormanyzat (last accessed 20 February 2022) 100 The German minority list gained 24,630 votes, https://vtr.valasztas.hu/ogy2022 (last accessed 20 April 2022) See also B Dobos, ‘Nemzetiségi országgyűlési képviselők 2022-ben?’ JTIblog https:// jog.tk.hu/blog/2021/11/nemzetisegi-orszaggyulesi-kepviselok-2022-ben (last accessed 15 January 2022)

112  Balázs Vizi to gain a seat, while being able to elect their spokespersons. What seems to be important is that nationality participation in parliament is controlled by the domestic-level ‘nationality self-governments’, minimising the chances of political competition within the community. 8. CONCLUSIONS

In 1993 the MSG system was supported both by minorities and by majority political parties and was codified in the Minority Rights Act. As mentioned above, while international instruments on minority rights highlight the importance of effective participation of minorities in public life, non-territorial autonomy is neither the only, nor the most obvious option for that. The broad political consensus in Hungary behind introducing a new minority cultural autonomy model was unique in CEE. As seen above, the Hungarian government was not only motivated by minority claims for autonomy in adopting the normative framework of MSGs. The sociolinguistic and demographic position of minorities would not necessarily require an autonomy model for the protection of their minority identities. The Minority Rights Act presumably served both domestic and foreign policy goals, eventually offering a positive example for the international community and for the neighbouring states in particular. The complex system of MSGs operating at different administrative levels, with various decision-making and consultative competences, to some extent opened an unknown terrain for minority communities as well. How would MSGs operate in practice, and how would this system represent minorities effectively were open questions in the 1990s. For example, the need to harmonise contrasting minority interests – on rejecting minority electoral registration on one hand, and combating the phenomenon of ‘ethnobusiness’ – in the electoral procedure was clear after the first MSG elections and posed a lasting challenge. It also turned out that exercising effective political decision-making rights at local level requires smooth co-operation between the local MSGs and the municipality councils, which was not always the case. Based on such experiences MSGs started open discussions and lobbied for the modification of the Minority Rights Act, adopted in 2005. However, the introduction of electoral registration and the extension of MSG veto rights with other modifications could not stop ‘ethnic entrepreneurs’ from running at the MSG elections and could not automatically improve everywhere co-operation between local MSGs and municipalities. The experience of the past decades of MSGs has revealed that beyond serving a legal structure for cultural and educational minority institutions, they have come to play an important political role; MSGs, especially those operating at local and state level, clearly gained a political legitimacy. At state level they have established close relations with their kin-states, participating also in bilateral negotiations in the joint intergovernmental committees and have been successful in jointly representing their interests to government. Local MSGs have also been

Participation of Minorities in Public Life in Hungary  113 acknowledged as the legitimate and representative body of the local minority community: as the case of Roma self-governments has shown, they are often consulted even in social-economic policy areas that are clearly beyond their competences. Despite the radical and substantial constitutional changes that the governing Fidesz party has introduced since 2010, the central role of MSGs in the minority rights protection regime has remained in place. The concept of ‘nation’ reflected in the new constitution, the Fundamental Law, is problematic as it gives an ethnocentric narrative of the Hungarian state, while recognising ‘state constituent’ minorities and their collective rights. This confusing constitutional image of national identity does not appear in the 2011 Act on Nationalities that replaced the previous legislation. In fact, the new law builds heavily on the well-developed MSG system. Nevertheless in a few matters it replaced the veto powers of nationality self-governments with consensual decision-making, which at local level renders effective co-operation with municipality administration even more important. Moreover, the new electoral law in 2011 opened the door to minorities for parliamentary representation and gave a decisive role to state-level nationality self-governments in the process. The legislator’s idea was to finally secure the participation of minorities in parliament; however, the experiences of the past ten years show that this manifests itself rather in their presence than representation in parliament. Most of the nationality communities – simply based on their demography – in practice have no chance to get a full member of parliament elected. The nationality spokespersons have limited powers which means that their role can hardly be seen as participation in the legislative process. In addition to that, the monopolistic role of nationality self-governments in nominating candidates for parliamentary elections raises concerns on democratic competition within minority communities. The privileged position of state-level nationality self-governments in parliamentary elections (in nominating candidates, mobilising voters, etc) demonstrably reinforced their political character. At local level, however, additional measures would be needed to facilitate co-operation between local municipality governments and local MSGs. Since 1989 there have been many significant political and legislative changes, and after 2010 the constitutional landscape of Hungary has been substantially transformed, but during all these decades the conceptual commitment of Hungarian political elites to minority autonomy proved to be stable. The normative framework is consistent in putting self-governments at the centre of political representation and control of nationality communities. Nevertheless, legitimacy and representation also remain problematic: various attempts for introducing objective criteria for signing up to a ‘nationality electoral roll’ were not truly successful. Linking nationality self-government elections to census data constitutes a critical undertaking and cannot in itself eradicate the phenomenon of ‘ethnobusiness’. What seems also to be a lasting challenge is that the system

114  Balázs Vizi of self-governments cannot answer the most challenging issues affecting the Roma in particular, such as social marginalisation and discrimination, nor can it be effective in creating or maintaining active communities of the members of dispersed minorities, such as Polish, Armenian or Greek minorities. All these shortcomings, however, could be and need to be continuously adjusted to reflect the changing realities and needs of minorities. The legal model of MSGs in Hungary proved to give an institutional basis for involving minority representatives in policy- and decision-making. How and when it happens does not depend on the institution, but on the procedures and the willingness of majority political elites to find appropriate solutions.

7 State Recognition and Religious Minority Group Agency in a European Context KYRIAKI TOPIDI

1. INTRODUCTION

E

uropean debates about religion in the public space have been heavily tainted by conceptualisations of secularism.1 There is already extensive literature on the position of religion in the public space in connection to the concept of secularism, making multiple distinctions on the possible variations in the conceptualisation of the term secularism.2 As an example, the distinction drawn by Rowan Williams considers broadly the role of the state in managing religion as either ‘neutral’ (when no religion is preferred and the voices of the various belief systems are part of the public discourse) or as ‘antireligious’ (when the public square is emptied of religion). The primary levels of intervention by the state, within this basic typology, are the macro-level, which concerns broader governance and indeed the role of the state in managing religions, and the meso-level, where focus is placed on the relationship among groups within society and people from a practical and organisational perspective. The state has, in principle, less scope for intervention at the microlevel, where the role of religion in the private life of individuals is concerned.

1 Conceptually, however, the binary distinction between ‘secular’ and ‘religious’ has been contested as historically and culturally specific to a Western-centric context. See S Kettell, ‘Secularism and Religion’, Oxford Research Encyclopedia of Politics, https://oxfordre.com/politics/view/10.1093/ acrefore/9780190228637.001.0001/acrefore-9780190228637-e-898. 2 Among the vast, interdisciplinary literature discussing religion and secularism, see only indicatively M Koskenniemi et al, International Law and Religion: Historical and Contemporary Perspectives (Oxford, Oxford University Press, 2017); L Medevoi et al, Religion, Secularism and Political Belonging (Durham, NC, Duke University Press, 2021); S Mahmood, Religious Difference in a Secular Age (Princeton, Princeton University Press, 2015); N Lerner, Religion, Secular Beliefs and Human Rights (Leiden and Boston, MA, Brill/Nijhoff, 2012); J Temperman, State–Religion Relationships and Human Rights Law (Leiden and Boston, MA, Brill/Nijhoff, 2010).

116  Kyriaki Topidi Increasing volumes of claims for the recognition and accommodation of religious identities, practices, values or institutions indicate, however, that religious belief can no longer be constrained in the private realm.3 In the post-secular age, we are at the same time confronted with a new cultural and social moment: the state is not the only institution shaping norms within society. We are looking, instead, at increasingly complex constellations of interactions between the state, the market and non-state (including religious) actors. The conceptualisation of secularism as the dominant trajectory when considering the role of the state in managing difference is by extension also no longer exclusive. More concretely, the changing sociolegal conditions affecting the role of the state in managing religion today are multiple:4 first, in the European context, there is a decline of religion’s significance and role in society; second, religion and religious actors remain still heavily involved in providing healthcare, education and other social services and at the same time, activism is grounded on religious identities; third, traditional sources of religious authority are in decline, with the role of the internet increasing, self-ascribed authority in the interpretation of the practice of one’s faith on the rise and commercialisation of religion well established; finally, religion is currently linked to both the ‘common good’ but also ‘everyday religion’ in the form of daily activities.5 As importantly, due to population movements, minority religious identities are more and more hybrid and policy (as well as legal) interventions are called upon to take account of the growing spread of such multiple, hyphenated identities.6 In sum, focusing on the exchange between the state and religious minority groups matters because it provides an opportunity to understand better and assess the tensions and (religious) identity-related issues associated with modern liberal democracies.7 Complicating further the governance of religious diversity, the conception of a secular state is not always easily and neatly distinguishable from racial classifications.8 In many cases, and in empirical terms, the state becomes entangled 3 RIJ Hackett, ‘Rethinking the Role of Religion in Changing Public Spheres: Some Comparative Perspectives’ [2005] Brigham Young University Law Review 659, 659. 4 See indicatively BS Turner, ‘Religion in a Post-secular Society’ in BS Turner (ed), The New Blackwell Companion to the Sociology of Religion (Oxford, Blackwell, 2010) 649–67. 5 See eg JS Cornelio, Being Catholic in the Contemporary Philippines: Young People Reinterpreting Religion, (Abingdon, Routledge, 2016). 6 The term is borrowed from anthropology and denotes the equation of ‘culture’, ‘nation’ and ‘community’ within one’s identity (eg German-Turk, British-Muslim or French-Algerian). It is often used in parallel with other terms such as ‘creolisation’ or ‘hybridity’ of identities within multicultural contexts. For more, see A Caglar, ‘Hyphenated Identities and the Limits of Culture’, in The Politics of Multiculturalism in the New Europe (London, Zed Books, 2018) 169–85. 7 S Pickard, ‘The Question of Religious Freedom in a Post-secular Society’, ABC, 7 May 2019, available at www.abc.net.au/religion/the-question-of-religious-freedom-in-a-post-secular-society/11088574. 8 The intersectional positionality of religious minorities often combines minority racial belonging with minority religious identity to draw the implications of exclusionary legal and societal patterns. In the words of Crenshaw, ‘discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another. If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and sometimes from all of them.’ K Crenshaw,

State Recognition and Religious Minority Group Agency  117 with normative discourses that carry the effect of privileging ‘white’ (male/elite) interpretations of normative entitlements to freedom of belief/non-belief. The non-white dimensions of religiosity and of how religion should be practised are confronted with perceptions of theses faiths as non-rational, primitive and nonEuropean. This process affects implicitly the question of recognition of religious minority groups (and their rights) by states. A liberalist interpretation of the role of the state would ‘solve’ the issue by supporting the abstention from the employment of state resources aimed at a particular religion or way of life. For value pluralists, on the other hand, the role of the state is understood as that of a ‘moderator’ of inevitable conflicts between majority and minority cultures and their respective normative values.9 This creates the need for the state to devise institutions, mechanisms and procedures that are triggered when it becomes necessary to manage such conflicts, and as crucially in cases where universal human rights principles are not of help (eg in scenarios of conflict between two fundamental rights). This contribution will discuss, mainly from the perspective of the state, the implications of religious minority faiths10 reimagining their agency and of their working openly within civil society in European multicultural contexts. It will focus on how and why the developments outlined above inevitably shift the role of the state from ‘neutral’ moderator of the public space to partner in the effort to ‘accentuate the positive’.11 It will also place emphasis on how the recognition of minority faiths and religious actors is connected to the new parameters within the role of the state in religious diversity management. The discussion of the evolution of the role of the state in the management of religious diversity from a European perspective will unfold in this chapter as follows: first, a theoretical connection between religious minorities and state recognition will be sketched, in order in a second stage to develop the link between religious minority agency (covering actors per se as well as related minority institutions) and state recognition. As a third step, the contribution will focus on the evolution of the role of state to respond to the changing sociolegal conditions of minority claimsmaking. The example of religious minority education within state-supported schools will be used as an illustration of the challenges connected to state recognition of religious minority groups. The concluding part of the discussion will attempt to demonstrate how the interaction between religious minority agency

‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Policies’ [1989] no 1 University of Chicago Legal Forum 139–67, 149. For an application of the intersectional reading of religion and race, see eg V Lloyd, Black Natural Law: Beyond Secularism and Multiculturalism (Oxford, Oxford University Press, 2016). 9 A Baumeister, ‘The Limits of Universalism’ in B Haddock and P Sutch (eds), Multiculturalism, Identity and Rights (London, Routledge, 2003) 111–25, 111. 10 Focus will be placed on the religious minority groups that arrived in European states as a result of more recent migratory movements in the second half of the twentieth century. 11 Pickard (n 7).

118  Kyriaki Topidi with recognition can function as a precondition towards inclusive law- and policy-making in religiously plural societies. 2.  PLURALISING RELIGIOUS MINORITY IDENTITY THROUGH STATE RECOGNITION: SOME THEORETICAL AND CONCEPTUAL UNDERPINNINGS

Within the framework of the so-called ‘politics of difference’,12 legal recognition of minority groups is in general terms connected to social justice and relies on the claim that such groups, often among the most marginalised or disadvantaged within societies, deserve public and legal recognition. Injustice is understood here as both unfair treatment based on discrimination as well as culturally biased legal and policy attempts at inclusion.13 In their basic form, minority claims can be distinguished between those aiming at equality and as importantly those aiming at inclusion.14 Both sets of claims, in the case of religious minorities, are guided by the values and interests that prevail within the respective minority groups that make them. They are of interest to states because they provide guarantees for peaceful coexistence among groups within multicultural societies. The theoretical foundation upon which this contribution is premised relies on a normative multidimensional perspective of diversity that combines religion with ethnicity, gender or spatial distribution, to name some examples, echoing Vertovec’s conceptualisation of ‘superdiversity’.15 Only a situated, contextualised perspective of religious actors’ agency within a state can provide an intersectional reading of the types of claims that states are confronted with within religiously plural societies. Further than that, ‘superdiversity’ as an analytical precondition, can enlighten us on the features of the exchanges within given social spaces (or the lack thereof) and on the ways the state can promote such exchanges further.16 Applied to the processes of recognition and protection of religious minorities, a ‘superdiverse’ lens adds a localised focus of religious coexistence as ‘a complex entanglement between identity, power and place’.17 12 The term was coined by IM Young, in Justice and the Politics of Difference (Princeton, Princeton University Press, 1990), where she challenges the reduction of social justice to distributive justice. The opposite argument has been prominently made by Brian Barry, who claims that commitments to equal citizens should be insensitive to cultural identities. See B Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Polity, 2001). 13 P Kelly, ‘Identity, Equality and Power: Tensions in Parekh’s Political Theory of Multiculturalism’ in Haddock and Sutch (n 9) 94–110, 96. A classic example of the latter category are cultural values based on liberalism privileging individuality. 14 To return to Young (n 12), the distinction is based on her argument that normative theory and public theory should be based on the recognition of group-differentiated policies to achieve an inclusive participatory framework that moves beyond formal equality. 15 S Vertovec, ‘Super-diversity and its Implications’ in S Vertovec, Anthropology of Migration and Multiculturalism: New Directions (London, Routledge, 2010) 65–95, 66–67. 16 ibid 86. 17 See JM Jacobs and R Fincher, ‘Introduction’ in R Fincher and JM Jacobs (eds), Cities of Difference (New York, Guilford Press, 1998) 1–25.

State Recognition and Religious Minority Group Agency  119 In that sense, ‘superdiversity’ becomes also particularly relevant for public service delivery, which is important to the present analysis but also shows how religious actors can and do provide services connected to public good themselves. Such a reading is consonant with a shift in religious diversity management approaches that states could adopt when, for example, assessing the needs of (religious) minorities or when collaborating with them, in order to achieve inclusive policies and fairer resource distribution outcomes. Embracing ‘superdiversity’ is finally relevant because it allows some space for the growing plurality of affiliations among members of minority groups while attempting to strike a balance between cohesion and separateness.18 The core underlying question, from the perspective of the state, when dealing with religious diversity, is thus the following: how should a state achieve the value of inclusion when pursuing legal and political recognition of religious minority groups? In applying ‘superdiversity’ within majority–minority relationships, as managed by states, the analysis that follows will assume that the experiences of religious minority communities are varied and constantly evolving in their interaction with state authorities; that sociocultural dynamics are superimposed; and that diversity management approaches to religious plurality operate against the background of both minority and majority interactions.19 On the basis of these parameters, state responses to religious plurality can then be considered by understanding that ‘the good society does not commit itself to a particular vision of the good life and then ask how much diversity it can tolerate within the limits set by this vision’.20 Instead, a dialogical approach under such terms can guide broader societal efforts to capture the dynamics and evolution of ­majority–minority relationships. Returning to the issue of state recognition of religious minority groups and distinguishing between wide and narrow recognition, Seglow defines the former as follows: Wide recognition concerns the values and attitudes that citizens of different backgrounds evince in their day-to-day interaction with each other. Wide recognition also refers to the normative standards of public life more generally, including the kinds of

18 Vertovec (n 15) 89, where he notes that rights (including cultural and religious ones) are stratified. In the same spirit, R Grillo also adds that the debate about difference and cohesion is tightly linked to the broader issue of the governability of fragmented and transnationalized societies where ‘“difference” seems ungovernable’ but ‘“diversity” may be managed’. R Grillo, ‘An Excess of Alterity? Debating Difference in a Multicultural Society’ in Vertovec, Anthropology of Migration and Multiculturalism (n 15) 19–38, 33. 19 TH Eriksen, ‘Complexity in Social and Cultural Integration: Some Analytical Dimensions’ in Vertovec, Anthropology of Migration and Multiculturalism (n 15) 97-111, 109. The last point speaks to the fear of majorities that their countries are becoming ‘too diverse’ and feeling threatened by the presence of communities with values conflicting their own. See Grillo (n 18) 20. 20 L Sanderlock, Cosmopolis II: Mongrel Cities of the 21st Century (London, Continuum, 2003) 91.

120  Kyriaki Topidi discourse employed by politicians, the portrayal of different kinds of groups in television and the print media, in literature and in school curricula.21

For this kind of recognition, the state is responsible for creating and maintaining the conditions that lead to the affirmation of the value of religious minority identity in the public space, including as a source of political claims.22 Such recognition does not necessarily imply, however, a positive appreciation of minority identities by majority groups. The weight of this kind of appreciation is, nevertheless, important as it contributes not only towards a better understanding of minority agency when introducing claims but also towards the achievement of social justice.23 Narrow recognition concerns legal and policy changes, including state support policies and positive measures, that are targeting the accommodation of minority claims. A narrow form of recognition in the absence of public acknowledgement, however, presents the state with the risk that the measures will be rejected by the majority because they are perceived as connected to separatism and illiberal policies. The example of minority ‘faith schools’, to which we shall return later, in particular those servicing Muslim minorities in the United Kingdom, is illustrative of such risk.24 3.  THE LINK BETWEEN THE AGENCY OF MINORITY RELIGIOUS ACTORS WITH STATE RECOGNITION

A 2016 World Economic Forum report predicted, based on demographic trends, that within the next two decades the number of faith adherents will increase.25 Should this trend be confirmed, it follows that believers will have an important role to play within communities mobilising their respective groups in a considerable number of states. Religious actors through dedicated religious institutions already contribute sets of values that can support social change. As de facto trust networks, faith communities pursue different approaches to visions of the ‘common good’ but also act successfully as natural distribution networks,26 as the current COVID-19 pandemic shows. In that sense, they can arguably play a meaningful role in promoting social cohesion (and political stability), when acting in collaboration with the state.

21 J Seglow, ‘Theorizing Recognition’ in Haddock and Sutch (n 9) 78–93, 84. 22 To quote Young (n 12) 174: ‘Groups cannot be socially equal unless their specific experience, culture and social contribution are publicly affirmed.’ 23 The assumption is here, reflecting Seglow (n 9) 87, that inclusion is part of social justice. 24 See K Topidi, Law and Religious Diversity in Education: The Right to Difference (Routledge, 2020) esp ch 6. 25 World Economic Forum, The Role of Faith in Systemic Global Challenges (June 2016) 3, available at www3.weforum.org/docs/WEF_GAC16_Role_of_Faith_in_Systemic_Global_Challenges.pdf. 26 ibid 5. The report includes examples of religious actors’ initiatives on global family self-reliance and advocacy schemes, instead of the more traditional charity initiation (ibid 10).

State Recognition and Religious Minority Group Agency  121 Within this prospect, religious minority group recognition becomes a delicate balancing exercise for states between sameness and difference: it can contribute towards creating an experience for all individuals that form part of society combining the personal with the social dimension of one’s existence. In general, state policies that are designed to promote religious diversity are based on the notion of equality of opportunities and more recently on implementing affirmative action frameworks to reverse systemic disadvantage.27 In the eyes of multiculturalist theorists, such as Parekh, Young or Taylor, state-endorsed equality also includes equal respect for cultural practices, raising by the same token the importance and visibility of the function of religious groups and associations as interlocutors of the state. The form of this exchange between the state and religious minority actors can happen through what Parekh, in particular, has labelled as operative public values.28 These values are moral and political rules to which the state (and the wider society) turns to when faced with a claim for recognition by minority groups. They form the basis for engagement in dialogue between the majority and the minority and are not fixed and static. On the ground, this kind of dialogue does not happen often, however, as it contains inherently the unequal privilege of the majority to withhold recognition to (religious) minorities.29 The evolution of multiculturalism,30 in its own diversity of options and interpretations, offers to states new terms of ‘engagement’ with the management of religious and more broadly cultural plurality: it is clear that religious identity is volatile, constantly in evolution and highly contextualised through agency of both individuals and the minority groups to which they belong. At the same time, the hybridisation of cultures and religious identities, reinforced by globalisation, make it unlikely that religion – as an object of law- and policymaking – can be construed in separate, neatly distinct areas. But without clarity on how religious groups engage with the state, it is less likely that the latter will successfully integrate religion and religious recognition into public services and goods. Finally, cultural and religious claims are equally tied (if not fully embedded) within socioeconomic policies, as reflected, for instance, within education,

27 United Nations Development Programme, Human Development Report: Cultural Liberty in Today’s Diverse World (New York, UNDP, 2004). 28 These are defined as ‘norms governing the civic relations between [society’s] members’ and ‘represent the shared moral structure of a society’s public life’. B Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Basingstoke, Macmillan, 2000) 268, 270. According to Parekh, these values include ‘individual liberty, equality of respect and rights, tolerance, mutual respect, a sense of fair play and the spirit of moderation’, when referring to the British case. B Parekh, ‘Being British’ (2007) 78(1) Political Quarterly 32–40, 38. 29 Kelly (n 13) 104–05. 30 The increased recognition and accommodation of diversity through multiculturalism moved, after the mid-1990s, to a retreat of the concept and a reassertion of ideas of nation-building, common values and identity as well as unitary citizenship. See W Kymlicka, Multiculturalism: Success, Failure and the Future (Washington, DC, Migration Policy Institute, 2012) 3. For more on multiculturalism and its evolution, see the chapter by Relano-Pastor in this volume.

122  Kyriaki Topidi healthcare or public service employment, that apply additional pressure to states to consider solutions drawn from processes of religious diversity management. In such a context, the consideration of agency of minority group members merits closer attention from both states and cultural/religious majorities. Agency is understood here as the capacity to make choices that apart from affecting the ability to change one’s material situation, also include the ‘satisfaction of being what one wishes to be’.31 As such, exercising agency becomes often connected to culture and values.32 But agency is also connected to religious identity recognition through the realisation that recognition of one’s identity is conducive to more positive interactions with the rest of society. In Charles Taylor’s words: The thesis is that our identity is partly shaped by recognition or its absence, often by misrecognition of others and so a person or a group of people can suffer damage, real distortion, if the people or society around them mirror back to them a confirming or demeaning or contemptible picture of themselves. … Due recognition is not just a courtesy we owe people. It is a vital human need.33

Currently, demands for recognition of religious identity have shifted in their nature and intensity: migrants and members of ethnocultural minority groups increasingly resist calls for assimilation and are less prepared to discard or even keep their religious practices in their private sphere. States, in their quest for the management of such claims, are inevitably confronted with that shift. In the 2000s, Kymlicka already noted the evolution by finding that: In the last forty years, we have witnessed a veritable revolution around the world in the relations between states and ethnocultural minorities. Older models of assimilationist and homogenizing nation-states are increasingly being contested, and often displaced, by newer multicultural models of the state and citizenship. This is reflected, for example, in the widespread adoption of cultural and religious accommodations for immigrant groups, the acceptance of territorial autonomy and language rights for national minorities, and the recognition of land claims and self-government rights for indigenous peoples.34

Another advantage for states to proceed with the recognition of the religious attributes of minority groups is the reduction of conflicts. While conflicts are unavoidable among different systems of beliefs and approaches to the ‘good life’, escalation to violence, discrimination and exclusion should be considered as deterrents for states to manage identity conflicts. Nevertheless, it should

31 A Marc, Delivering Services in Multicultural Societies, New Frontiers in Social Policy (Washington, DC, World Bank, 2010) 17. 32 A Sen, Development as Freedom (New York, Oxford University Press, 1999). 33 C Taylor, Multiculturalism: Examining the Politics of Recognition (Princeton, Princeton University Press, 1994) 25. 34 W Kymlicka, Multicultural Odysseys: Navigating the New Institutional Politics of Diversity (Oxford, Oxford University Press, 2007) 3.

State Recognition and Religious Minority Group Agency  123 be noted that commonly the trigger for identity conflicts is not found within culture/religion but rather within inequalities in socioeconomic and political participation of minorities.35 One should acknowledge, nevertheless, the difficulty for states to measure on a macro-level how recognition impacts social inclusion through positive agency. At the same time and to be clear, recognition does not always lead to an increase in agency: in some cases, it operates in reverse mode and instead of increasing social capital, it isolates religious minority groups. More specifically, it reduces meaningful choices of religious minority group members by giving preference to intra-group relationship development as opposed to developing ties with other groups. Such a trend requires a differentiated response from states, when compared to instances of positive agency. As part of the process of exercising minority religious agency, among the most popular venues for bringing religious claims to the state’s attention are judicial fora. These claims in some cases concern legal self-regulation posed by certain ethnic and religious groups. Evidently, such issues question the monopoly in the creation and interpretation of the law by the state, occasionally at the cost of the consistent application of the ‘rule of law’. Behind this kind of claims lays the question of the source(s) of normativity in contemporary legal systems, so far legally attributed to state, international and transnational law.36 Of considerable scientific interest are also instances of non-state religious fora practising arbitration, defined as: A voluntary dispute resolution process, conducted according to religious principles … refer[ing] to processes that are binding, or non-binding; to actions that are highly formal, or highly informal; and to processes that are intended to serve as a prelude to court action, a partial substitute for court action, or a complete substitute.37

The degree to which a state chooses to ignore, accept or reject such processes becomes a predominantly diversity governance issue, with legal, social and political implications. This is because such claims touch upon core notions of state sovereignty, recognition of minority groups, and individual and collective rights.38

35 Marc (n 31) 26. 36 FC Gonzalez, ‘The Legal Self-regulation of Religious Groups – Tackling the Challenges of Legal Pluralism in Theory and Practice’, RECODE Working Paper Series, no 21 (2014) 2. See, for example, the interesting case of the Muslim minority in northern Greece and the operation of sharia courts. K Topidi, ‘Religious Pluralism and State-centric Legal Spaces in Europe: The Legacy and Implications of the European Court of Human Rights’ Molla Sali Case’ (2021) 18 European Yearbook for Minority Issues 33–54. 37 N Walter, ‘Religious Arbitration in the United States and Canada’ (2012) 52(2) Santa Clara Law Review 502–69, 503–04. 38 Gonzalez (n 36) 9.

124  Kyriaki Topidi 4.  THE EVOLUTION OF THE ROLE OF THE STATE IN SHAPING THE FUTURE OF RELIGIOUS DIVERSITY

European states, following the liberal tradition, are regularly pressured to consider the question of how to reconcile respect for and acknowledgement of religious diversity with nation-building in the form of common values binding their citizens. The concept of ‘social cohesion’ has been widely used as a normative goal, a political benchmark but also a justification for the curtailing of religious rights of minority groups by states. In most cases in the European context the protection of diversity and difference are recognised by a firm ‘constitutional command’.39 The liberal State’s response is usually centred on religious tolerance and neutrality, whereby the state abstains from a religiously linked vision of the common good.40 With some variations, this entails the distancing of the state from religion, positing an artificial separation of the state as a public entity from religion. This position emphasises the quest for a framework of coexistence among various faiths, while refusing any part in the assessment or affirmation of religious truth. Instead, it relies on defining human rights applicable to all but abstains from considering special measures for religious groups and their members on separate grounds. In an opposite direction, non-liberal responses to religious diversity are tailored according to the intention of the state to intervene and regulate religion, in accordance with values such as community interests.41 Non-liberal responses are also premised on the distancing from individual rights’ affirmations. In this case, the use of both legal and non-binding constitutional means to bring together diverse religious groups under common values and aspirations prevails, excluding individual rights’ entitlements.42 Neither approach, however, is conducive to addressing the shifting parameters of the role of religion in the public space, particularly vis-a-vis minority religious groups: first, in relation to the liberal approach, the social dimension of religious pluralities is ignored, especially the multiple identities and agencies of religious minority groups members when making (legal) claims. The transformation of ‘the functions ascribed to modern subjectivity, to the political, the

39 J Neo, M, Roßbach, L Thio, and A Tischbirek (2019) 20(7) German Law Journal. Solidarity in Diversity? State Responses to Religious Diversity in Liberal and Non-Liberal Perspectives’ 941-948 at 942. doi:10.1017/glj.2019.77. 40 See eg P Jones, ‘The Ideal of a Neutral State’ in R Goodwin and A Reeve (eds), Liberal Neutrality (London, Routledge, 1989) 9–38. 41 See indicatively G Walker, ‘The New Mixed Constitution: A Response to Liberal Debility and Constitutional Deadlock in Eastern Europe’ (1996) 26 Polity 503. 42 See eg L Thio, ‘Singapore Relational Constitutionalism: The “Living” Institution and the Project of Religious Harmony’ [2019] March Singapore Journal of Legal Studies 204–34, for a discussion on how non-binding soft-law constitutional norms are used as a method of managing religious harmony among groups (as opposed to individuals).

State Recognition and Religious Minority Group Agency  125 economy, the nation, the State, the public sphere [and] privacy’ are well under way and need to be taken into consideration.43 Second, for the non-liberal approach, state intervention in minority religion is frequently an indication of attempts to maintain political control against perceived threats to both the state and the status quo in majority–minority relations. In either case, ‘public religions’, such as Islam in Germany for instance, can challenge both the liberal and non-liberal approaches, insofar as the state is drawn to efforts to limit the impact of religious plurality towards predetermined expectations of a secular democracy.44 What seems to reconfigure the parameters of the processes as described above is the multiplication of actors at play. So far, state action was framed within a binary approach that included the individual (qua citizen) and the state itself as the fundamental components in the promotion and protection of diverse religious identities in a given space. The mission of the state, in this context, has been (at best) to promote, protect and ensure the individual’s rights to freedom of belief and non-belief through the notions of equality, non-discrimination and dignity, acknowledged as universal principles, to manage religious diversity. The frame to support this role has been, as noted earlier, based on the distinction between the private and public domain in relation to religious life, a distinction questioned in the post-secular context. In light of the transnationalisation of religious minority groups within Europe, another element of state diversity management is also questioned: in the past, cultural policies have been implemented in decentralised terms. Decentralisation alone is not, however, a guarantee of success of religious and cultural diversity management policies.45 Ghai’s classic distinction foresees two main approaches for states to enhance the participation of minority groups.46 The first considers territory and proposes devolution processes in the form of cultural autonomy in cases where cultural differences correspond to a specific territory. The second concerns situations where territory is not a helpful determinant to address minority claims to self-determination (eg forms of

43 H de Vries, Religion and Violence: Philosophical Perspectives from Kant to Derrida (Baltimore, MD, Johns Hopkins University Press, 2002) 19. 44 Neo et al (2019) 946. 45 Decentralisation with respect to ethnocultural groups can take a variety of shapes: in its territorially based form, it is designed to recognise the plurinational character of a country through multitiered governance, allowing minorities that are territorially concentrated to govern their own affairs to the extent of constitutionally prescribed responsibilities (ethnic federalism). Forms of non-territorial autonomy are not defined by minorities’ claims to a specific territory but are rather allocated to groups dispersed among the majority while belonging to a certain self-identification notion of groups identity. See T Malloy and F Palermo (eds), Minority Accommodation through Territorial and Non-territorial Autonomy (Oxford, Oxford University Press, 2015). See the contribution by Vizi in this volume for an empirical demonstration on this point in Hungary. 46 Y Ghai, ‘Decentralization and the Accommodation of Ethnic Diversity’ in C Young (ed), Ethnic Diversity and Public Policy: A Comparative Inquiry (London, Macmillan, 1998). Ghai is referring to political participation mechanisms in the typology offered.

126  Kyriaki Topidi non-territorial autonomy).47 In both cases, from the perspective of the state, the aim is to increase citizen involvement in decisions affecting them while improving the quality of the public service provided by bringing it closer to the right-holder.48 In many European contexts, however, decentralisation has created side effects in the governance of cultural and religious diversity through issues of competence among the various levels of government, lack of resources allocated to local forms of government to implement minority-specific policies, and coordination challenges among central and local authorities, especially in circumstances of tension, conflict or polarisation. If ‘the twenty-first century will almost certainly be regarded … as a century in which religion replaced ideology … guiding attitudes to political liberty and obligation, concepts of nationhood, and, of course, conflicts and wars’,49 states will need to reconfigure their role and expectations in relation to religious diversity management. Two essential dimensions of state (in)action have been already singled out, on the basis also of case-law related to both national and international fora: first, the degree of protection of public manifestations of religion; and second, the question of state support towards public religions as they engage (and in some cases compete) with the modern welfare state in education, health and the broader social services sector.50 The ‘reconstruction of defensive identities around communal principles’51 from states and their majorities seems a popular option to respond to religious difference but one that does not reflect the de facto religious plurality within their societies. A kind of state power that is intrusive, regulating all aspects of religious life at the individual as well as at the group level is also not desirable. Instead, the aim is different: how to adjust from ‘rampant diversity to a culture of pluralism’.52 The pressure applied on states by religious actors, as a result of the evolution in religious minority agency, is largely due to the way that members of ethnoreligious minorities tend to self-identify increasingly on the basis of their faith. Such self-identification processes highlight the narrative nature of contemporary identities, rejecting to some extent pre-existing social structures and social identities.53 In itself, emphasis on minority religious self-identification implies that states can no longer ignore cultural diversity policies as a necessary field of

47 Non-territorial autonomy is linked to the idea that autonomy in the management of particular spheres of concern for minority communities (eg language, culture, education) should be guaranteed regardless of location of members of such groups. See F Prina, ‘Non-territorial Autonomy and Minority Dis-empowerment: Past, Present and Future’ [2020] Nationalities Papers 1–10. 48 Marc (n 31) 19. 49 P Jenkins, ‘The Next Christianity’ [October 2002] Atlantic Monthly 54. 50 See J Witte Jr, ‘The New Freedom of Public Religion – Editorial Opinion’ (Center for the Interdisciplinary Study of Religion, Emory University, 2005) available at https://divinity.uchicago .edu/sightings/articles/new-freedom-public-religion-john-witte-jr. 51 M Castells, The Power of Identity, Malden, Mass.: Blackwell Publishers, 1997, 11. 52 RE Wentz, The Culture of Religious Pluralism (London, Routledge, 1998) 118. 53 Marc (n 31) 3.

State Recognition and Religious Minority Group Agency  127 policy-making, particularly as it relates to the claims linked to recognition of minority religious rights. The pervasive implications of policies aimed at social inclusion and social cohesion are particularly visible when religious minority identity-related claims defy the link between territory and culture due to globalisation: members of minority groups tend to keep their culture, values and beliefs beyond their country/culture of origin and at the same time resist integration.54 This resistance is connected to the failure of the majority systems within states to validate the effort of minority group members socially and/or economically.55 The balancing of communitarian demands within liberal democracies becomes thus controversial. Through their arguments and actions, these non-state institutions promote a rich diversity of the visions of ‘good life’ and by the same token multiply the possibilities for conflicts of values and of rights. The pluralisation of voices inevitably links to the proliferation of faith-related activism and more intense forms of public presence, a process that impacts the parameters of democracy.56 In this context where the role of religion has gained prominence, demonstrated at all levels of governance, from the local to the supranational, conflicts and disputes occur over symbols, recognition and access, often within a minority religious identity frame. In the European context, in particular, the arrival of minority religious groups that differ significantly from the majority faiths has sparked the regression of the protection of the rights of minority religious groups in a number of European states.57 At the same time, and from a more positive angle, the pressure against the public–private distinction in the assessment and management of religious plurality has also conceded space for elements such as the value of community, solidarity or even corporate action that aims at the common good to contribute meaningfully to a state’s vision of social cohesion. 5.  RELIGIOUS MINORITY RECOGNITION WITHIN STATE-SUPPORTED EDUCATION: A BRIEF POLICY EXAMPLE

Turning to a more concrete scenario of religious minority agency, education is acknowledged as both a right and but also a policy that is uniquely disposed 54 There is expanded literature based on Vertovec’s framework on diaspora, transnationalisation and migration that considers diasporic groups as resisting attempts by host societies to culturally homogenise them. Such groups instead place importance on recognition of hybridity, multiple identities and affiliation with people/traditions outside the hosting nation-state. See S Vertovec and R Cohen, ‘Introduction’ in Migration, Diasporas and Transnationalism (Cheltenham, Edward Elgar, 1999) xiii–xxvii. For an application on Muslim diasporic groups in Europe, see D Habti, ‘The Religious Aspects of Diasporic Experience of Muslims in Europe within the Crisis of Multiculturalism’ (2014) 12(1) Policy Futures in Education, www.wwwords.co.uk/PFIE. 55 Cultural integration to the majority groups is not synonymous with economic equity with its members. Marc (n 31) 11. 56 Hackett (n 3) 678. 57 See Council of Europe, Advisory Committee on the Framework Convention for the Protection of National Minorities, Twelfth Activity Report from 1 June 2018 to 31 May 2020, available at

128  Kyriaki Topidi to serve the objective of ‘living together’.58 Both population movements as well as technological tools create contexts where interactions among members of different faiths have today become a way of living, including within classrooms. Due to these factors, a large component of contemporary education includes identity-building. This process is a demanding and challenging one insofar as learners’ identities are becoming plural, fluid and interdependent. Some of the core questions in relation to multi-/intercultural approaches in public education systems are the following: should identity-building in public school environments be conditioned by cultural majorities, and if not, what would be the implications of a more individualized approach to culturally/religiously relevant education? The challenge for educational approaches that aim to respond and correspond to our plural, diverse societies is what Bekemans called ‘capacity building in diversity management’.59 It includes one’s preparation for life in society but also information and training for life skills and cultural development.60 Personal fulfilment, social inclusion and citizen-building are parallel (and ambitious) objectives for public education policies. The concept of citizenship, however, has been used, often extending beyond stricter domestic contexts to embrace local, regional and international levels and to create a frame of socially cohesive environments.61 In its use, it requires more than political and cultural literacy centred on democracy, human rights, the functioning of institutions or cultural heritage. It rests equally on the cultivation of attitudes and values that reflect one’s understanding of his/her own and acceptance of others’ hyphenated identities. From curriculum content and training of teachers, to the provision of relevant teaching materials and broadened activities in the school, education that is culturally and religiously plural requires pedagogic design that reconciles education with faith towards the active promotion of difference, not simply its acceptance. Within public education, the terms of the debate that consider the coexistence of religious identities with social cohesion have been tested through the questions surrounding schools of religious character. Such schools are, for

https://rm.coe.int/12th-acfc-biennial-activity-report-en-final/1680a07db8 for an overview of the main trends in minority protection in Member States. 58 See, for example, the findings of the recent EU-funded project INCLUD-ED (2006–2011) that demonstrates how considerable weight on actions implemented in school improve social cohesion both within the school and beyond. See R Flecha (ed), INCLUDE-ED Consortium, Successful Educational Actions for Inclusion and Social Cohesion in Europe (Springer Briefs in Education, 2015). 59 L Bekemans, ‘Educational Challenges and Perspectives in Multiculturalism vs Interculturalism: Citizenship education for intercultural realities’ in M Barrett (ed), Interculturalism and Multiculturalism: Similarities and Differences (Council of Europe Publishing, 2013) 169–87, 175 60 ibid 175. See also the Delors Report (1996), Education for the 21st Century – Learning: The Treasure Within, that proposes four pillars of learning: learn to know, learn to do, learn to be, learn to live together. 61 Bekemans (n 59) 179.

State Recognition and Religious Minority Group Agency  129 example, developed and debated in the English context from the perspective of their contribution to diversity management. Often labelled as an expression of the cultural needs of communities, they function as part of a competitive education market too.62 While these schools can operate as part of a broader system sustaining unequal economic relations, when selecting students through admission criteria that include religious affiliation, and due to (although not consistently demonstrated) class considerations, the main challenge in their operation remains to reverse and undo mechanisms of exclusion that are pervasive in multicultural societies. Intersectional forms of inequality, in public education and beyond, are the ones most pressingly in need to be addressed, seeking to ‘displace the political; to critique a political multiculturalism with an apolitical, local encounters-based individualism’.63,64 More broadly, both ‘faith’ as well as non-denominational/non-confessional schools as locations of formation of ‘national ideology’ can no longer escape the consideration of religion as ‘cultural difference’ in preparing learners for life in multicultural societies. The reconciliation between national ideology and religious difference is thus necessary for any diversity management framework to have an impact on social cohesion. Against the re-emergence of cultural racism framed as the politics of citizenship,65 the need for intersectional accounts of discrimination and exclusion becomes pressing, echoing Vertovec’s ‘superdiversity’. Within the educational frame, conflict as related to religious diversity also includes racism, poverty and social exclusion.66 Any approach to diversity management in public education has to support a broader understanding of religion as extending beyond national identity. Race- and religion-related considerations are necessary to tackle inequality and asymmetric power relations in contemporary superdiverse societies. Class and gender too need to occupy a central position within an intercultural framework, including within schools. A needs-based assessment of religious diversity approaches within public education systems, when striving to recognise minority faiths and cultures, calls

62 Topidi (n 24). The market dimension remains, however, less pronounced in the political discourse. 63 T Modood and N Meer ‘Rejoinder: Assessing the Divergences on our Readings of Interculturalism and Multiculturalism’ (2012) 33(2) Journal of Intercultural Studies 233–44, 235. 64 Similar previous attempts to cultivate intercultural educational approaches in the French context, for example, in the 1970s failed because of their limitation on ‘everyday diversity’ application. See R Kastoryano, ‘Multiculturalism and Interculturalism: Redefining Nationhood and Solidarity’ (2018) 6 Comparative Studies 5. 65 It is argued within sociological literature that racial cleavages have shaped the evolution of citizenship without reflecting differences and differential positionings of members of minority groups. See the seminal work of N Yuval-Davis, ‘Institutional Racism, Cultural Diversity and Citizenship: Some Reflections on Reading the Steven Lawrence Report’ (1999) 4(1) Sociological Research Online 115–23 and also H Keval, ‘From “Multiculturalism” to “Interculturalism” – A Commentary on the Impact of De-racing and De-classing the Debate’ (2014) 16(2) New Diversities 126. 66 T Cantle, Interculturalism: The New Era of Cohesion and Diversity (London, Palgrave Macmillan, 2012) 102.

130  Kyriaki Topidi for two main elements: first, a bottom-up, micro-level approach to the management of differences; and second, the recognition (and acceptance) that the identities of learners are multiple and fluid.67 These identities require zones of contact in order to evolve. The notion of ‘contact’, especially under interculturalist visions of diversity management, remains somehow fuzzy, despite being labelled as essential: is it a notion that requires state-induced opportunities for encounter or does it rely instead on the less formal social processes of encounters among groups? In this frame, a distinction can be already made between ‘contact’ and ‘co-presence’:68 schools have the potential to function both as spaces of intergroup contact but also as loci of mere co-presence, when the necessary frame to set positive terms of encounter is missing.69 If such ‘contacts’ function as instruments that will enable a better understanding among groups and foster dialogical exchange, their spatial and social dimensions need to overlap. Hence, for public education, this would translate into the functioning of schools as meeting places that encourage continuous cultural negotiation and reimagination of identities. This kind of negotiation presupposes, however, the recognition of value pluralism that acts and reacts to both political context and power relations.70 Ultimately, it is through the cultivation of values that transcend identity such as trust and common understanding that governance through diversity (as opposed to governance of diversity) can be implemented and conflict averted regardless of the policy labels.71 Public education will remain an essential social space for this endeavour. In addition, illiberalism and relativism attributed to certain communities (eg Muslim, ultra-Orthodox Jews) should not be necessarily treated as the product of a linear, one-dimensional logic attributable exclusively to multiculturalist policies: for instance, ‘faith schools’ are not only the response to a ‘cultural’ need of certain groups but equally the quest to secure high-quality education and future prospects for learners.72 What the current efforts of states to protect religious difference in education are therefore missing the most are a concrete account of how a context-based,73 dialogical approach to difference can be translated into reversing structural inequalities, extending sociopolitical representation and achieving a fairer redistribution of resources.74 A version of any policy and legal

67 T Sealy, ‘Multiculturalism, Interculturalism, “Multiculture” and Super-diversity: Of Zombies, Shadows and Other Ways of Being’ (2018) 18(5) Ethnicities 692–716, 1 (online version). 68 ibid 15 (online version). 69 See A Amin, Land of Strangers (Cambridge, Polity Press, 2012). 70 N Meer et al, ‘A Plural Century: Situating Interculturalism and Multiculturalism’ in N Meer, T Modood and R Zapata-Barrero (eds), Multiculturalism and Interculturalism: Debating the Dividing Lines (Edinburgh, Edinburg University Press, 2016). 71 R Zapara-Barrero, ‘Interculturalism in the post-multicultural debate: a defence’ (2017) Comparative Migration Studies 5, 14. https://doi.org/10.1186/s40878-017-0057-z. 72 Topidi (n 24) ch 6. 73 See part 1 of this chapter for more on Vertovec’s ‘superdiversity’ framework, including a contextualisation element. 74 Keval (n 67) 130.

State Recognition and Religious Minority Group Agency  131 framework that ignores these dimensions and offers ‘local-encounters-based individualism’,75 in apolitical terms, carries limited emancipatory potential or potential for social cohesion, as well as recognition of group identities and their ensuing rights. 6.  CONCLUDING REMARKS

Practising a minority religion has broad intersectional implications: indicatively, there is a notable entanglement between minority cultural identity and genderbased and/or age-based disempowerment within a number of minority cultural communities. This implies limited levels of individual autonomy for some of their members and the perpetuation of inefficient minority institutions in terms of socioeconomic development and legitimate representation (eg ethno-business) of their members. The intersectional implications of minority religion practice may also include a degree of isolation from interactions with the majority culture, in particular for religious/cultural policies that are specific and exclusive to one group. But while the exclusionary practices of some minority religious groups are well documented, the dilemma for the states is whether to ignore them entirely or to account for them in policy-making. The former scenario is conducive to the informal, underground and unregulated performance and activity of these practices (eg polygamy in sub-Saharan countries). The latter one, which leads to the consideration of such practices by states (without automatic legal validation) opens negotiating possibilities for states, depending on the typology of issues and groups they need to address. State collaboration with minority religious actors in society presupposes both top-down and bottom-up approaches that reach beyond elites within both the majority and minority groups and that ultimately combine both legislative approaches and institutional ones within an ever-changing cultural landscape.76 Approaches relying on reasonable cooperation reinforce the public dimension of the impact of minority group agency and function as Rawls describes them: It is by the reasonable that we enter as equals the public world of others and stand ready to propose, or to accept, as the case may be, fair terms of cooperation with them. These terms, set out as principles, specify the reasons we are to share and publicly recognize before one another as grounding our social relations. Insofar as we are reasonable, we are ready to work out the framework of the public social world.77

Such an approach invites the inclusion of illiberal and traditionalist religious and cultural practices in the process of deliberation between state and non-state 75 Modood and Meer (n 65). 76 Within education, for instance, minority language learning only makes sense if the language can be used beyond the narrow family context and only when combined with horizontally designed curricula in history, arts and geography that speak to minority identity in a given context. 77 J Rawls, Political Liberalism (New York, Columbia University Press, 1993) 53.

132  Kyriaki Topidi actors, without signifying, their automatic state legal recognition.78 Context and historical background of each case are essential, especially in circumstances where non-state norms are invoked in historical and sociolegal circumstances different from the ones for which they were initially devised (eg use of Islamic law in European societies). The risk of politicisation of minority issues is also a considerable factor to account for. As importantly, the disconnect between the recognition of the religious identity of certain groups from their socioeconomic situation decreases the chances for inclusion of minority groups, even when recognition is nominally (even constitutionally) present. The encouragement by states of a stronger sense of cultural, religious, linguistic or other ethnocultural identity will not suffice in the absence of a minimum degree of economic security provided to vulnerable and marginalised ethnocultural minority groups. To be more specific, and on the basis of the foregoing analysis, principles for state intervention towards more culturally (and religiously) sensitive state policy-making require some adjustments. First, through the reconciliation between equality of opportunity with equality of condition: often states assume that minority claims are exclusively centred on culture and choose to ignore competence and skills likely to increase opportunities for socioeconomic participation of members of vulnerable/marginalized minority groups. This assumption is, for instance, contested in multicultural education policies where minority parents express clear preferences for curricula that equip learners with the necessary skills to survive and progress in society, as opposed to schools of religious character that offer a compatible religious ethos to their own but more limited employment prospects.79 This preference is also partially connected to the reality that in a variety of cases separate minority ‘faith’ schools are often hit by poor financial conditions, distancing from mainstream curricula or lowerquality teachers.80 This trend does not reverse, however, the need to introduce in the educational context accounts of minority contributions within a variety of school subjects (eg history, art, music, trade skills). Second, through the introduction of cultural competence in public service provision: the concept of cultural competence, developed in the 1980s in the United States, can be understood as ‘a set of congruent behaviors, attitudes, and policies that come together in a system or agency or among professionals that enables systems, agencies, and professionals to work effectively in cross-cultural situations’.81 It requires more than cultural awareness and moves in the direction of the adoption of culturally appropriate policies to serve diverse populations. A characteristic space for its implementation is the area of public healthcare

78 Gonzalez (n 36) 12. 79 Marc (n 31) 33 and Topidi (n 24) esp ch 6. 80 See in Topidi (n 24) the discussion of Haredi schools in Israel and ‘faith schools’ in the UK, in chs 4 and 6, respectively. 81 Marc (n 31) 40.

State Recognition and Religious Minority Group Agency  133 and relevant techniques include interpreter services, recruitment policies, inclusion of family/community members or the coordination between health workers and traditional healers.82 In such a context, the role of the state in providing services ideally should acknowledge both the cultural background of the patient (including gender dimensions) as well as the value of culturally based curative practices, wherever possible. Third, through the local provision of religious/cultural services: local services that promote and support collective identity rely on (state-based) local governments to act as a facilitator and enabler of religious community initiatives. Local provision of such services is instrumental because when conflicts arise, local governments will increasingly act as the first instance in regulating and mediating among communities to mitigate the effects of such conflict. This approach combines a number of advantages that translate in a higher potential for the maintenance of social cohesion across communities because people understand and possibly also trust more local authorities.83 It confronts, however, the state with the question as to whether traditional governance systems (eg councils of elders) should be included in decision-making processes. Yet, from the state’s perspective, this option can be useful when limited state resources are available because it avoids the development of separate local structures, or when there is an important diversity of religious claims/matters to be addressed in a functional and cost-effective way. The use of local provision of services by states, however, requires an understanding of how minority religious groups and their institutions, wherever they exist, represent and act upon their distinct societal values. States should also become aware of how these same religious minority actors operate, often within predesignated roles for community members, including how in many cases there is a specific acceptance of individual duties towards the community, quite different from the state–citizen framework.84 The state should additionally consider, including at the local level, that such communities and their institutions are porous and exposed to transnational links with other religious, political or even kin-state actors. In sum, the successful statesupported provision of religiously sensitive services at the local level depends on factors such as the degree of inclusion of the religious minority communities in decision-making; the types of decisions that decision-making bodies take and the demand and resonance of their decisions among the communities they serve; as well as the degree of dialogue developed between the religious minority institutions and the state (both locally and at state level). Finally, consultation and collaboration mechanisms between the state and the relevant cultural/religious group are necessary to increase the potential and impact of measures taken. This kind of dialogical interaction can occur early on in the process when setting the aims of services provided, within a process

82 ibid

41 discusses in more detail the US example. 49. 84 ibid 53. 83 ibid

134  Kyriaki Topidi of reform of legal frameworks/policies through consideration of contextually dependent options, during implementation of new policies and measures aiming at protecting or promoting cultural dimensions of minority identity and/or, finally, when assessing or monitoring the effectiveness of such measures. To conclude, the complementarity of the recognition and protection of religious difference is a valid starting point for states to combat inequalities. The cultural adaptation of basic services to local realities is a much-needed guarantee that any solutions and compromises devised will, at the very least, correspond to the practices of religious minority groups at the given moment where states will intervene, whether these concern schools, healthcare services, local government institutions or any other cultural/religious programmes.

8 Is Multiculturalism a Satisfactory Framework to Address Religious Diversity? EUGENIA RELAÑO PASTOR

Every citizen here is in his own country. To the protestant it is a protestant country; to the catholic, a catholic country; and the jew, if he pleases, may establish in it his New Jerusalem. (Oral argument of Attorney Wiliam Sampson in People v Philips, Court of General Sessions, City of New York, 1813)

1. INTRODUCTION

O

ur societies result from a heterogeneous cultural fabric and an increasingly visible cultural diversity favoured by globalisation and digital connections. The growing visibility of the plurality of diversities, whether cultural, religious, sexual and gender or linguistic, has not been translated into a greater awareness of the multiple ways in which these diversities take shape. It seems that neither respect nor tolerance for the plurality embedded in our multicultural societies’ social practices, norms and values has increased. After two decades of debate on the models for dealing with diversity multiculturalism (multiculturalism, assimilationism, segregationism, cosmopolitanism, interculturalism and plurinationalism), we are witnessing the decline of the so-called multiculturalist model and the increase of intolerant tendencies that can be described as an expression of cultural racism.1 The intolerance towards 1 S Garner and S Selo, ‘The Racialization of Muslims: Empirical Studies of Islamophobia’ (2015) 41(1) Critical Sociology 9–19; O Komurcu, ‘Denying Diversity. Challenges to Multiculturalism in Central-Eastern Europe’ (2020) 14(1) Europolity: Continuity and Change in European Governance, 159–178.

136  Eugenia Relaño Pastor ‘otherness’, manifested in the rise of Islamophobic, antisemitic and racist incidents, implies a sort of blindness to the humanity of the other human beings who are perceived as ‘entities’ so different as to not be considered humans like ‘us’. Therefore, the otherness factor makes them not entitled to the same rights as the rest of the population, and consequently, the recognition of the most basic right of all, the right to exist as a rights-holder, is compromised.2 Moreover, growing intolerance towards the presence of the ‘different’, identified as a threat, hampers efforts within the European Union to achieve social cohesion based on diversity which is proclaimed as a fundamental value in the EU Treaty of Lisbon.3 When there is a greater need to articulate policies that cohere society based on difference, attitudes contrary to a specific model of diversity handling – so-called multiculturalism – seem to have become more widespread.4 This contribution aims to overcome the debates on the most appropriate terminology for dealing with religious diversity (and religious superdiversity) and proposes a reading of the multiculturalist management model based on fundamental rights and the rights of minorities enshrined in international human rights law. This reading is based on the notion of identity, human dignity and the protection of minorities. Regardless of the ideological or political choice of the governance model that each society chooses to combine, namely social and cultural factors with religious plurality, this contribution aims to recall that the law has sufficient instruments to protect and guarantee that each person manifests their identity through their differences, and not despite them. Human rights, with their universal nature and their particular exercise, are the best guarantee to respect and protect the pluralisation of our society. It is not an easy task because applying the law is never neutral, and justice is not imparted blindly. To avoid, precisely, possible biased interpretations of human rights law based on

2 For an analysis of the rise of Islamophobia and anti-Semitism, see the latest report of the UN Rapporteur on Freedom of Religion or Belief, A/HRC/46/30, Report of the Special Rapporteur on freedom of religion or belief, Countering Islamophobia/Anti-Muslim Hatred to Eliminate Discrimination and Intolerance Based on Religion or Belief, 25 February 2021, www.ohchr.org/ EN/Issues/FreedomReligion/Pages/HatredAndDiscrimination.aspx. OSCE, Hate Crime against Muslims Factsheet (Warsaw, 2018) www.osce.org/odihr/373441 and ODIHR, Understanding Anti-Muslim Hate Crimes: Addressing the Security Needs of Muslim Communities (2020) www.osce.org/odihr/infographic-muslim-security-guide at 16–20; FRA, EU-MIDIS, ‘Minorities and Discrimination Survey: Muslims – Selected Findings, 2017 and Antisemistism: Overview of the Antisemitic Incidents Recorded in the European Union, 2009–2019, https://fra.europa.eu/en/ publication/2020/antisemitism-overview-2009-2019 3 Art 2 includes respect for the rights of persons belonging to minorities among the values on which the Union is founded and lists pluralism and tolerance as features that are common to the Member States. Art 3(3) establishes that the Union shall respect its rich cultural and linguistic diversity. 4 S Vertovec and S Wessendorf, ‘Assessing the Backlash against Multiculturalism in Europe’, MMG Working Paper 09-0 (2010) https://pure.mpg.de/rest/items/item_1126665/component/ file_2057823/content.

Is Multiculturalism a Satisfactory Framework?  137 – consciously or unconsciously – stereotypes, requires awareness of the existing legal protections for religious diversity. Therefore, this chapter analyses the grounds for protecting religious diversity and the current models for managing cultural diversity. It also explores the concept of superdiversity in a postmulticultural context to conclude that twentieth-century philosophy provided enough arguments to value pluralism as a fundamental human good based on human dignity and personal autonomy. The cornerstone of a multicultural society is the legal recognition of multiple identities on an equal footing regardless of how we name the policy model to deal with cultural and religious diversity. International human rights law provides the tools. Our task of interpreting and understanding the implementation of the rights related to the recognition of diversities would then entail a better knowledge of the conceptual framework of both self-identities and power relations among groups and individuals. The aim is twofold: to avoid the flattening of identities, inequalities and discrimination, and to foster inclusive multicultural citizenship.5 Thus, the chapter explores the most appropriate governance framework for religious diversity. It relies on the primary presumption that respect for religious diversity is a demand deriving from the notions of identity and human dignity. The first part purportedly sketches the grounds for the protection of religious diversity. The second scrutinises the debates around multiculturalism and interculturalism and suggests the advantages of the postmulticulturalist paradigm to address religious diversity. The final part advances the main characteristics of an inclusive human rights model for religious diversity and advocates for the term everyday religious superdiversity. 2.  WHY SHOULD WE PROTECT RELIGIOUS DIVERSITY?

Religious diversity has become a common characteristic of contemporary societies and its existence can hardly be contested.6 Many factors have contributed to the flourishing of religious diversity: secularisation theory,7 democratisation

5 I use the term ‘multicultural citizenship’ as the concept developed by W Kymlicka that entails the idea that ethnic, racial, gender and other minoritised groups can maintain significant aspects of their community cultures and values and participate as well in the national civic culture. See W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1996). A Shachar also uses the term multicultural citizenship in a context of a ‘joint governance’ approach that struggles for the reduction of injustice between minority groups and the wider society. See A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge University Press, 2009). 6 See E Dikici, ‘Governance of Religious Diversity in Western Europe’ (2019) 0(0) Ethnicities 1–12. 7 Auguste Comte, Herbert Spencer, Émile Durkheim, Max Weber, Karl Marx and Sigmund Freud held that religion would gradually fade in importance and cease to be significant with the advent of industrial society. See S Bruce (ed), Religion and Modernization: Sociologists and Historians Debate the Secularization Thesis (Oxford, Clarendon Press, 1992).

138  Eugenia Relaño Pastor of religious life8 and the advance of international religious freedom.9 The increased visibility of new religious groups settled in Western democracies, such as European ones, has challenged the old Christian hegemony by demanding recognition to practise their religion peacefully and freely.10 As Bader notes, ‘the situation of a more or less peaceful coexistence of divergent types of religions visualizes religious diversity’.11 According to the Pew Research Centre, reports have revealed a low degree of religious diversity, globally speaking;12 however, Europe has faced a rapidly growing number of migrants who have been perceived by part of society and some politicians as a challenge to the Christian cultural hegemony and whose presence has placed the concept of religious diversity at the heart of political and academic debates.13 And, along with the controversy about multiculturalism–interculturalism, a new term appeared, ‘religious superdiversity’, built on Vertovec’s notion of superdiversity.14 Whether the term is suitable for grasping the plurality of religious diversity is still an open question. Burchardt and Becci applied the term to launch new perspectives on understanding religion in a context of superdiversity, and proposed two ways to study the relationships between religion and superdiversity.15 The first one addresses the relation between religion and other status categories in contexts of migration-driven diversification such as ‘race, ethnicity, legal status, and age’. And the second focuses on the interactions of different

8 J Anderson, ‘Does God Matter, and if so Whose God? Religion and Democratization (2004) 11(4) Democratization 192–217. 9 P Danchin, ‘The Emergence and Structure of Religious Freedom in International Law’ (2007–08) 23 Journal of Law and Religion 467. 10 See part I ‘Challenges of Religious Pluralism in a Global Era’ in T Banchoff (ed), Religious Pluralism, Globalization and World Politics (Oxford, Oxford University Press, 2008) 41–120. 11 V Bader, Secularism or Democracy? Associational Governance of Religious Diversity (Amsterdam, Amsterdam University Press, 2007) 36. 12 www.pewforum.org/2014/04/04/global-religious-diversity/. 13 As an example of politician concerns, see V Orbán’s statements about how Western Europe had given up on ‘a Christian Europe’ and instead experimented with ‘a godless cosmos, rainbow families, migration and open societies’, https://theconversation.com/viktor-orbans-use-and-misuseof-religion-serves-as-a-warning-to-western-democracies-146277. For legal and scholarly debates around Christianity and national traditions, see the intervention of Joseph Weiler before the European Court of Human Rights in Lautsi v Italy (Application no 30814/06, 18 March 2011) and the concurring opinion of Judge Bonello in this judgment. 14 According to Vertovec, ‘superdiversity’ was intended to give a name to changing patterns observed in British migration data and to point out the combination in migration patterns that produced new hierarchical social positions, statuses and stratifications. These, in turn, entail new patterns of segregation, new experiences of space and ‘contact’, new forms of cosmopolitanism and creolization. Since 2007 superdiversity has been taken up by a wide range of scholars from an array of disciplines and fields. The term was used in 325 publications between 2008 and 2014. See S Vertovec, ‘Talking Around Super-diversity’ (2019) 42(1) Ethnic and Racial Studies 125–39. 15 M Burchardt and Irene Becci, ‘Religion and Superdiversity: An Introduction’ (2016) 18(1) New Diversities 88 and JA Beckford, ‘Re-thinking Religious Pluralism’ in G Giordan and E Pace (eds), Religious Pluralism: Framing Religious Diversity in the Contemporary World (Cham, Springer, 2014) 2.

Is Multiculturalism a Satisfactory Framework?  139 religious diversities. Burchardt and Becci’s research highlights that religious superdiversity implies that religion is not only a marker of difference but also includes internal religious diversity of practices, identities and epistemologies. Additionally, the interpretation of religious dogma within religious groups creates multiple identities at the same time that individuals also draw themselves to multiple religions in crafting their religious lives. Any approach to the relation between religions and individuals needs to consider the overlapping of belonging, practising and emotional commitment. People negotiate their link to different religions through their life course according to their situations, experiences and relations.16 Beckford anticipated this notion as long ago as 2000 when he referred to religious diversity as comprising multiple personal or collective compositions of religious identities and described the syncretic or hybrid religious processes of bricolage.17 As a result of bricolage, religious superdiversity encompasses another dimension of religion unrelated to migration but connected to new spiritual movements not subject to standardised ritual practices.18 An increasing number of persons describe themselves as more spiritual than religious and opt for extra-institutional spiritual practices (veganism, neo-shamanism, meditation, yoga, etc). 2.1.  Diversity and Human Dignity Existence is linked to the individual’s being (as in physical reality). Once the human being exists, freedom appears as the means to realise all the capabilities as an individual and fulfil self-realisation.19 Through various freedoms, human beings can act out their way of being through particular moral systems of reference, manifest their identity, and gain access to material and immaterial goods. Garet defined existence as the place where rights and values intersect, and isolated three components of the human being that constitute intrinsic moral values in themselves and are closely linked: personhood, communality and sociality.20 In line with the communitarian philosophy of the 1990s, Garet demonstrated the non-existence of the abstract ideal of the individual devoid of attributes. People fulfil themselves in society, define themselves regarding the group or community, and possess multiple identities. Even considering the danger of labels in political philosophy, thinkers classified as communitarians, 16 Burchardt and Becci (n 15) 84. 17 Beckford (15) 15–30. 18 PC Lucas and T Robbins, New Religious Movements in the Twenty-First Century: Legal, Political, and Social Challenges in Global Perspective (New York, Routledge, 2004). 19 See MC Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA, Harvard University Press, 2011). 20 R Garet, ‘Communality and Existence: The Rights of Groups’ (1983) 56 Southern California Law Review 1001–1150.

140  Eugenia Relaño Pastor such as McIntyre, Sandel, Taylor, Walzer or Bellah, analysed the relevance of the group in the construction of the self and the importance of preserving minority collective identities as an effective instrument for respecting personal identities.21 Two types of relationships between the individual and the group can be described: associations and ascriptive communities. In the former, the individual becomes a member of the group by simple choice (eg a member of the American Cancer Association or a member of Madrid Atlético FC), and in the latter, the person finds himself or herself in a group with a ‘significant commonality’ which she/he recognises as a moral referent (eg the Amish communities of Pennsylvania in the United States).22 In the latter case, the interdependence or bond is greater between the individual and the group. Garet emphasised the obligatory nature of the bond forged between the member and the group in ascriptive communities, ie those not associative. He emphasised the inverse relationship between the voluntariness of membership and the moral importance of the group: ‘Many people would consider state, religion, or family of birth to be the prominent group sources of moral obligation in their experience. Yet these are typically among the most ascriptive and least voluntary of groups.’23 The moral value of personhood, closely linked to human dignity, is the foundation for individual and non-transferable human rights adjudication.24 Communality is where personhood develops and constitutes the moral system that gives reference and meaning to personhood and human dignity.25 The originality of Garet’s concept of ‘community’ is its theoretical approach, and it overcomes the classic hierarchical reductionism of individual–society.26 21 A Macintyre, After Virtue (London, Duckworth, 1981); M Toscano Méndez, ‘El pluralismo y la prioridad de la democracia en Michael Walzer’ (1999) 137 Sistema 93–108; Ch Taylor, Multiculturalismo y la política del reconocimiento (Mexico, FEC, 1997) 99–103; C Mouffe, ‘Eloge du pluralisme dèmocratique. Entretien avec Michael Walzer’ (1992) 180 (3–4) Esprit 123–32. 22 O Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy and Public Affairs 107. See Wisconsin v Yoder 406 US 205 (1972) related to a partial exemption from state compulsory schooling for children in traditional Amish and Mennonite communities and Santa Clara Pueblo v Martínez 436 US 49 (1978) in which the Supreme Court held the federal courts did not have jurisdiction to decide whether a gender discriminatory tribal membership rule deprived a Santa Clara woman and her children of the ‘equal protection of the laws’ guaranteed by the 1968 Indian Civil Rights Act. 23 See Garet (n 20) 1045. 24 As McCrudden shows exhaustively, the idea of human dignity serves as the single most widely recognized basis for grounding the idea of human rights. C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) European Journal of International 655–724. 25 Human dignity is inextricably linked to the right to identity. Often, collective identities have a prominent role in shaping individual identity and in the relevance of its openness to others. See J Mende, ‘Collective Identity’ in P Tiedemann (ed), The Right to Identity (Baden Baden, Nomos, 2016) 129–40 and M Cooke, ‘Beyond Dignity and Difference. Revisiting the Politics of Recogntion’ (2009) 8(1) Journal of Political Theory 76–95. 26 ‘Not only is groupness an unfathomable fact of all our lives, but it is also an unfathomable value. We are born into some groups, others we choose, and still others choose us. Life not subject to the call of groupness is a difficult for us to imagine as life not subject to the individuating call of personhood or the sociating call of sociality.’ Garet (n 20) 1070.

Is Multiculturalism a Satisfactory Framework?  141 The three components of the human being, personhood, communality and sociality, appear as three intrinsic values in the human being that do not derive one from the other, nor can they be ordered conceptually. They are interdependent, and their relationship is not free of tensions. From this perspective, based on human dignity, individual identities – and religious identities – may not be static, simple or unique, but relative, complementary, complex and mixed. The identity of the human being cannot be separated from the community, nor does one leave it at home when one goes out on the street, at work or in the public sphere. As Ruiz Vieytez points out, ‘human beings, ever since they began to generate culture, have been condemned to be plural. And today he is also condemned to live with and in his plurality.’27 Identity, rooted in dignity, unfolds; inevitably, our identities range out into the public space as social beings. Therefore, the first consequence of the manifestation of identities is the need for legal guarantees that enable the expression of identities, among them religious identities, and their legal recognition on an equal footing. In addition to individual identities, there are also collective identities, with a similar vocation of integration in common spaces. Attention must be paid to the majority collective identities (majority religions) that have dominated the public sphere and go unnoticed as part of the collective social unconscious. The state often reinforces the cultural and religious elements of majority identities through public resources and national symbols. Therefore, identities, particularly religious identities, linked to human dignity are expressed through human rights, which become the vehicles of expression of the diversity of identities. The value of human dignity is identical in all individuals, and its manifestation is as diverse as it is multiple. In this sense, Article 4 of the UNESCO Universal Declaration on Cultural Diversity of 2001 states under the title ‘human rights as guarantees of cultural diversity’: ‘The defense of cultural diversity is an ethical imperative, inseparable from respect for the dignity of the human person’ (emphasis added). Thus, cultural plurality, a natural offspring of respect for the dignity of the human being, is not incompatible with the defence of universalisable values.28 2.2.  Multicultural Citizenship Traditionally citizenship has been defined as the legal status of membership in a given jurisdiction. Citizenship means certain equality concerning the rights and duties of members within that community. As a legal status, citizenship implies a unique and reciprocal relationship between the individual and the political

27 EJ Ruiz Vieytez, Juntos pero no revueltos (Madrid, Maia Ediciones, 2011) 80. 28 L Wolcher, ‘Cultural Diversity and Universal Human Rights’ (2012) 43 Cambrian Law Review 44–63.

142  Eugenia Relaño Pastor community. Citizenship is the foundation of the nation-state,29 with nationality the cement of citizenship.30 As Shachar points out, citizenship is, in short, ‘nothing less than the right to have rights’.31 Liberal citizenship refers to the link between the individual and the state, and modern states determine who is entitled to citizenship, prioritising an individual either as an holder of rights, or as a member of the political community (the civic-republican model). However, the liberal definition of citizenship possesses a certain ‘blindness to differences’, which are part of our societies. Justice cannot be achieved without recognising traditions and specific ways of life wholly unique to members of nondominant cultural minorities.32 In fact, states often officialise majority cultural references, and considering these references, administrative bodies interpret the cultural minima for the acquisition of nationality/citizenship. For example, Spanish jurisprudence offers numerous decisions denying nationality on the ground that the applicant did not demonstrate integration ‘in what is considered to be Spanish’.33 The current conceptualisation of European citizenship is somewhat ill-equipped to do justice to multiple diversities (linguistic, religious, national).34 Although a multicultural citizenship seems to have emerged as a natural demand from a multicultural and multireligious society, liberal citizenship has been grounded traditionally on the principle of secularism. Indeed, classical liberalism generally understands cultural diversity as diversity in the private spaces (separated from public spaces); therefore, liberal states responded to the idea of cultural diversity from the position that the state is culturally neutral and people are free to act as they like so long as it is done within the private sphere.35 Cultural diversity then became an extension of the principles of secularism, yet secularism as such has been highly contested by minority religious communities living in liberal democracies. Hence, the secularism of liberal democratic states can no longer simply be taken for granted.36 29 See R Bauböck (ed), From Aliens to Citizens: Redefining the Status of Immigrants in Europe (Aldershot, Avebury, 1994) 199–232 and S Castles and A Davidson, Citizenship and Migration: Globalization and the Politics of Belonging (New York, Palgrave Macmillan, 2000). 30 R Zapata-Barrero, Ciudadanía, democracia y pluralismo cultural: hacia un nuevo contrato social (Barcelona, Anthropos, 2001). 31 See A Shachar, ‘On Citizenship and Multicultural Vulnerability’ (2000) 28(1) Political Theory 64–89, 66. 32 A Shachar, ‘Two Critiques of Multiculturalism’ (2001) 23 Cardozo Law Review 253–97. 33 Supreme Court, Judgment 4698/2016 of 26 October 2016 Tribunal Supremo ECLI: ES:TS:2016:4698, and High National Court, Judgment 4013/2015 of 17 November 2015 ECLI:ES:AN:2015:4013 34 See W Kymlicka, ‘The Rise and Fall of Multiculturalism? New Debates on Inclusion and Accommodation in Diverse Societies” in S Vertovec and S Wessendorf (eds), The Multiculturalism Backlash: European Discourses, Policies and Practices (London, Routledge, 2009) 31–49, 36. 35 R Zapata-Barrero, Citizenship Policies in the Age of Diversity. Europe at the Crossroads (Barcelona, Fundación CIDOB, 2009) 8. 36 See the controversial secular meaning of the crucifix in the legal reasoning in Lautsi v Italy, ECtHR, Appl. No 30814/06, Lautsi v Italy, judgment of 3 November 2009 and V Bader, Secularism or Democracy? Associational Governance of Religious Diversity (Amsterdam, Amsterdam University Press, 2008).

Is Multiculturalism a Satisfactory Framework?  143 Nevertheless the philosophical tension between communitarianism and liberalism in the late twentieth century brought to the fore the role of culture in constituting a person’s understanding of who they are, of their fundamental defining characteristics as a human being.37 Culture is a fundamental part of us and, as such, cultural diversity cannot be restricted to the private sphere. The management of cultural diversity was tackled by different theses about how to deal with the social realities of a multicultural society. Some identified political multiculturalism as an outgrowth of liberalism, as did Kymlicka. He held that membership in an identity group combined with active participation in its cultural expressions could provide individuals with ‘a context of choice and a secure sense of identity and belonging’.38 Others, such as Taylor,39 explore this concept within communitarianism; while others, such as Young,40 look for an answer in democracy theories, and still others point out the need to transcend liberalism and redefine old concepts such as ethnicity or citizenship, as is the case with Parekh.41 Yet all are in agreement on the need to depart from a ‘blindness to difference’ ideal and to claim for the recognition of a pluralities of identities in a new definition of citizenship, an inclusive and plural one. An inclusive citizenship is grounded on a superdiverse society and such superdiversity must be understood as the key to collective identity made from a wide concept of culture linked with languages, religions, ethnic differences, etc. All these elements deserve an effective presence in the public square and, hence, the heightened importance of these factors needs to be part of a new framework for an inclusive and multicultural citizenship. Since the law, as a cultural phenomenon, tends to reflect the cultural attitude of the majority,42 the governance of diversity today requires that certain concepts be reviewed, among them the concept of liberal citizenship, as well as a redefinition of the means by which laws are produced.43 It is also essential to revise the ideological premises that underlie a nonpluralistic vision of multireligious and multicultural citizenship. These positions against diversity and multicultural citizenship are majority supported and institutionalised (as in internalised by the state and its institutions), evolving around 37 For an extensive review, see P Kelly (ed), Multiculturalism reconsidered (Cambridge, Polity Press, 2002); A Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’ (2000) 35 Harvard Civil Rights–Civil Liberties Law Review 385; N Glazer, We Are All Multiculturalists Now (Cambridge, MA, Harvard University Press, 1997); and B Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (London, Macmillan, 2000). 38 Kymlicka (n 5) 105. 39 Ch Taylor, Multiculturalism and ‘The Politics of Recognition’ (Princeton, Princeton University Press, 1992). 40 IM Young, Inclusion and Democracy (Oxford, Oxford University Press, 2000). 41 Parekh (n 37). 42 See F Palermo, ‘Soluciones jurídicas a sociedades complejas. El Derecho de la diversidad’ in EJ Ruiz Vieytez (dir), Derechos humanos y diversidad. Nuevos desafíos para las sociedades plurales (San Sebastian, Diputación Foral de Gipuzkoa, 2008) 81. 43 EJ Ruiz Vieytez, ‘Citizenship, Democracy and the State of Identity: Reinterpreting the Relationship in New Contexts of Diversity’ in Zapata-Barrero (n 36) 90.

144  Eugenia Relaño Pastor four arguments widespread in European society and reflected in the legal reasonings in the Strasbourg jurisprudence.44 1. Our way is right. This assumption relies on the belief that European political, social and cultural assumptions are correct or legitimate. This means that our ethical canons are the correct ones, and those of other identities are incorrect or at least less correct than ours.45 2. Our way is better. The European way seems to be more attractive and modern. This is why others want to come and live to look for better employment opportunities. This leads us to think that we are in a superior position, possessing greater rights, often ending with a paternalistic attitude towards those who are different. For example, this argument played an important role in the legal reasoning of the jurisprudence of European Court of Human Rights (ECtHR).46 3. We were here first. This means that there are original owners of the community in contrast to foreigners, those who arrived later, and as such are only potentially allowed to become part of the community. Therefore historical or collective legitimacy stands out, with the past legitimising the decisions of the societal majority. What is particularly relevant here is the initial value system which informed the foundation of the nationstate, and whether it is possible for a given minority to conform to such historical values. This was the main argument of the Italian government and the outcome of the ECtHR in Lautsi v Italy47 about the display of the crucifix in the schools. The crucifix supposedly expresses the religious origin of the constitutional values of tolerance, reciprocal respect, human dignity and fundamental rights. The crucifix evokes the harmony of these values with the doctrine of Christianity, and therefore, when it is displayed in a school, it has the function of reminding schoolchildren of the transcendent foundation of such principles, which shape the secular character of the state. Therefore the Christian signs are admissible because they represent ‘Western culture’. 4. There are more of us. This argument is based on the strength of numerical superiority within the framework of a legitimate formal democracy. Certain identity, cultural or religious priorities triumph over others because

44 ibid 91–93. 45 See E Relaño Pastor, ‘The European Court of Human Rights: Fundamental Assumptions that Have a Chilling Effect on the Protection of Religious Diversity’ in K Alidadi and MC Foblets (eds), Public Commissions on Ethnic, Cultural and Religious Diversity: National Narratives, Multiple Identities and Minorities (London, Routledge, 2018) 266–87; E Dikici, ‘Governance of Religious Diversity in Western Europe’ (2019) 0(0) Ethnicities 6. 46 ECtHR, Appl. No 44774/98, Leyla Şahin v Turkey (GC), judgment of 10 November 2008, para 107; ECtHR, Appl. No 43835/11, SAS v France (GC), judgment of 1 July 2014, para 128; ECtHR, Appl No 29086/16, Osmanoğlu and Kocabaş v Switzerland, judgment of 10 January 2017. 47 ECtHR, Appl No 30814/06, Lautsi v Italy, judgment of 3 November 2009.

Is Multiculturalism a Satisfactory Framework?  145 they have been decided by a majority of the population. Therefore, democracy is understood as a numerical game, largely excluding minorities from the construction of the public space.48 Keeping in mind the above four assumptions, some elements for a new paradigm for the protection of a multi-identity and multireligious society can be sketched. First, a public space must be open to diverse identities as it must avoid predefining those elements, whether cultural or religious, with which to identify itself. Of course, this does not mean the complete elimination of culture or identity elements from policy, either within institutions or in the public sphere. On the contrary, policies should stimulate the development of more possible identities. Since state neutrality is impossible with respect to cultural or religious identity, it would seek to promote within the public arena the greatest level of diversity compatible with a harmonious coexistence.49 Second, an inclusive and multicultural citizenship means that each person can exert their human rights through their own identity, irrespective of whether they are in a majority or a minority. Any interpretation of human rights must be compatible with the idea of plural citizenship. This would also require raising awareness among legislators and courts, as both tend to reproduce the majority point of view, thereby imposing an identity-based reading of human rights that is in opposition to the natural diversity of contemporary societies. Putting such premises into practice implies a reinterpretation and extension of the cultural and religious elements of recognised civil rights. It also demands a broad interpretation of freedom of religion which makes possible the development of diverse religious values within the public square. Thus the state should treat without discrimination the religious rights and freedoms of new citizens or citizens belonging to minorities, extensively reinterpreting concepts such as religious observance in public (allowing Catholic processions as well as festivals of Eid al-Fitr, the end of the holy month of Ramadan), the multireligious character of public acts (avoiding explicit references to God in commemorative anniversaries of terrorist attacks), religious education (teaching about religious and beliefs instead of religious indoctrination), religious holidays (granting days off to members of religious minorities on an equal footing with national holidays grounded on traditional religious holidays), requirements of security, etc. By incorporating inclusiveness and plurality into a reading of rights, a more open society, one in which different values are equally recognised, could be constructed.

48 See ECtHR, Appl No 29086/16, Osmanoğlu and Kocabaş v Switzerland regarding exemptions from mixed swimming lessons on religious grounds. 49 Ruiz Vieytez, (n 43) 95.

146  Eugenia Relaño Pastor 2.3.  Religion and Beliefs as Private and Public Values Pluralism has been an enduring characteristic of Western culture since the wars of religion of the sixteenth century. And this fact is not just an accident of history, it is the result of the divisions and negotiations among religions, and between religious and secular worldviews.50 During the modern era, no society permitting freedom of conscience and expression determined a single comprehensive concept of the good life. Instead, modernity was characterised by disagreements about ultimate questions of value, and therefore by religious division. For the sake of preserving social harmony, liberal states managed the plurality arising from the exercise of freedom through privatisation of differences. Classical liberalism has much to say about religion.51 Liberalism places autonomy at the centre, which means that all should be able to choose to live a life in a community of faith. Classical liberals, such as John Locke, John Stuart Mill and John Dewey, took religion seriously and tried to convince their fellow citizens to alter their religious views. All three hoped to make religion more open, more based on reason than on revelation, thereby persuading people to move toward more liberal religions. Locke argued for tolerance of those with different religious beliefs, but against atheists and Catholics. People need a good incentive to act morally (the promise of heaven). Those who behave morally can be trusted and therefore have a place in a commonwealth. That was the reason why atheists were not tolerated, as they could not be trusted to fulfil their obligations in society.52 While God played an essential role in Locke’s political theory, Mill questioned the idea that belief in God and the afterlife must underpin morality. Although Mill did not want to dismiss the concept of religion, his wish was to create a religion that had spirituality without Christian negativity. He claimed a kind of morality for all humanity, a religion of humanity.53 Finally, in the early twentieth century, Dewey called for a religion that had little to do with traditional religions (like Mill), calling instead for a religious humanism, as religious humanism would encourage a religious quality of life, a collective faith that could become religious in quality.54 All three had a liberal agenda to turn people toward more

50 Rawls argues that the fact of pluralism is the likely (or perhaps inevitable) result of freedom of conscience and expression in an open society. See J Rawls, ‘The Idea of an Overlapping Consensus’ (1987) 7(1) Oxford Journal of Legal Studies 4. 51 See J Spinner-Halev, Surviving Diversity: Religion and Democratic Citizenship (London, Johns Hopkins University Press, 2000) 11. 52 See L Ward, ‘Locke on Toleration and Inclusion’ (2008) 21(4) Ratio Juris 518–40 and J Waldron, God, Locke, and Equality Christian Foundations in Locke’s Political Thought (Cambridge, Cambridge University Press, 2002). 53 See LC Raeder, John Stuart Mill and the Religion of Humanity (Columbia, University of Missouri Press, 2002). 54 PJ Deneen, ‘The Politics of Hope and Optimism: Rorty, Havel, and the Democratic Faith of John Dewey’ (1999) 66(2) Social Research 577.

Is Multiculturalism a Satisfactory Framework?  147 liberal religions, envisioned a future world without the religious conservatives, and thought that religion should be a private affair, best left at home. However, they also encouraged autonomy and valued religion as a moral source or good. Contemporary liberals face the following question: should religion be relegated solely to the private realm or can it have a role in our common public life as well? During much of the twentieth century, due to various secularisation theories, religion seemed no longer to play a public role, but from the mid1970s onwards the presence of religion in public life became generally accepted. Philosophers such as Rawls and Habermas appealed to the idea of neutrality to suggest how we might deal with conflicts arising from citizens’ diverse views of the good. The main idea is that political principles, procedures and state institutions should not favour any particular comprehensive conception of the good.55 Therefore, liberal legitimacy depends on protecting reciprocal agreements among citizens with diverse and even incommensurable moral and social beliefs and values. Habermas argues that: [I]n modern societies, the religious doctrine has to accommodate itself to the unavoidable competition with other forms of faith, and other truth claims. It no longer moves in a self-contained universe directed, so to speak, by its absolute truth. Every religious doctrine today encounters the pluralism of different forms of religious truth – as well as the scepticism of a secular, scientific mode of knowing that owes its social authority to a confessed fallibility and a learning process based on long-term revision.56

If Rawls addressed the principle of neutrality in public life as a way of discovering shared public norms and accommodating a plurality of ‘reasonable, comprehensive doctrines’, Habermas celebrates rationalisation, declaring that: [I]t has an important political consequence that the community of the faithful can ascertain why it must refrain from the use of violence – and state-sponsored violence above all – as a means for the promotion of religious belief. In this sense, what we call the ‘modernization of faith’ is an important cognitive presupposition for the achievement of religious toleration and the construction of a neutral state power.57

Consequently, religious citizens in democracies could find the public realm to be a place of fulfilment and bracing engagement, an area in which their own convictions and beliefs could be tested, confirmed or reformed. Religion could be kept private and could be engaged in public debate as an inclusive democracy enhances pluralism, that is, in the openness to the voices of others.

55 See J Rawls, Political Liberalism (New York, Columbia University Press, 1996) 198–99 and M Deveaux, Cultural Pluralism and Dilemmas of Justice (Ithaca, NY, Cornell University Press, 2000) 71. 56 J Habermas, Religion and Rationality: Essays on Reason, Good, and Modernity (Cambridge, Polity Press, 2002) 150. 57 ibid.

148  Eugenia Relaño Pastor 3.  THE RHETORIC DEATH OF MULTICULTURALISM

Looking back to the late twentieth century, we can observe many institutional policies and initiatives aimed at mitigating discrimination and inequalities among groups arising from large-scale immigration. Local governments and the private sector designed programmes to accommodate modes of diversity and established measures to promote respect and tolerance towards minorities. Under the motto ‘We are all multiculturalists now’, Nathan Glazer voiced the mainstream acceptance of multicultural policies in public discourse and in academia.58 Although the scholarly debates on interculturalism and multiculturalism during the 1980s and 1990s evolved around recognition of multiple cultures and religion was reduced to an aspect of ethnic culture and belonging, in the 2000s many scholars started to place religion as a key element in the management of ethnocultural diversity.59 Religion thus emerged as a fundamental marker of difference and identity and as an increasingly important category of recognition. However, the conceptual back-and-forth over the meaning of ‘multiculturalism’ undermined the respect and recognition of religious diversity. Over the twenty-first century the term multiculturalism adopted a variety of forms: ‘critical multiculturalism’, ‘insurgent multiculturalism’, ‘radical multiculturalism’, etc. Gerard Delanty underlined nine kinds of multiculturalism and Vertovec eight different notions.60 However, as Vertovec noted, in the early 2000s the respect and tolerance for minorities seemed limited and politicians and policy-makers feared that migrant parallel lives could impair social cohesion and foster extremism.61 The sense of a ‘failure of integration’ emerged in public discourse and multiculturalism was to blame. As Ulrich Beck put it, multiculturalism became a zombie category, a living dead, that was disconnected from how diversity was really lived.62 By 2008, many European states had already endorsed the claim that multiculturalism had failed, regardless of whether those states were governed by left-wing or right-wing parties.63 Political leaders such

58 Glazer (n 37); S Vertovec and S. Wessendorf (eds), The Multiculturalism Backlash: European Discourses, Policies and Practices (London, Routledge, 2010). 59 See the recommendations of Commission on Religion and Belief in British Public Life (2015) in T Modood, ‘Pointing to a Multicultural Future. Rethinking Race, Ethnicity, Religion and Britishness’ in Foblets and Alidadi (n 45) 25–40. 60 Delanty described liberal multiculturalism, liberal communitarian multiculturalism, radical multiculturalism and postmodern multiculturalism. See G Delanty, Community (London, Routledge, 2003) 71–81. 61 S Vertovec, ‘Towards Post-multiculturalism? Changing Communities, Conditions and Contexts of Diversity’ (2010) 61 International Social Science Journal 83–95, 85. 62 U Beck, ‘The Cosmopolitan Society and its Enemies’ (2002) 19 (1–2) Theory, Culture & Society 17–44, 24. 63 Criticism from the political right focuses on how multiculturalism keeps ethnic minorities apart and breaks down common values, and from the political left criticism revolves around the fact that multiculturalism breaks down people’s sense of mutual obligations and willingness to contribute to the welfare state. See R Hasan, Multiculturalism: Some Inconvenient Truths (London, Politico, 2009) 7–63.

Is Multiculturalism a Satisfactory Framework?  149 as UK Prime Minister David Cameron and German Chancellor Angela Merkel announced the obituary of ‘multiculturalism’. Merkel, for example, declared that ‘multiculturalism has failed, utterly failed’, despite Germany never having adopted a multiculturalist policy agenda. Such statements appear to be a clear political consensus that we may need a postmulticultural alternative, to be called ‘interculturalism’. However, academics and public debates go in circles when trying to understand the meaning and the extent of concepts of ‘multiculturalism’ and ‘interculturalism’. There is a lot of confusion about what multiculturalism is and what it is not, due mainly to the overlaps, some explicit and some implicit, between the two terms.64 There is more than one form of multiculturalism and each affects integration in different ways. As Modood argues, in order to bring people closer to advocating for multiculturalism, as well as understanding their objections, it is important to clarify the key terms of assimilation, integration, multiculturalism and cosmopolitism.65 First, assimilation is generally understood as one-way relationship between social groups. As a result, newcomers try to become as much like their host citizens as possible. The term ‘assimilation’ has become a less widely used term in favour of ‘integration’. Second, integration is ‘where processes of social interaction are seen as two-way, and where members of the majority community as well as immigrants and ethnic minorities are required to do something’.66 It is important to distinguish between individualist-integration and multiculturalism. The integration of individuals means that institutions may provide adjustments in relation to migrants or minorities as only individual claimants, and the task is then to remove the obstacles that prevent the newcomers from being on an equal footing with all the citizens in the host society (eg allowing headscarves in the workplace providing that internal safety rules are guaranteed). However, the collective dimension of groups is not easily recognised. As a result, ‘minority communities may exist as private associations but are not recognised or supported in the public sphere’.67 Third, multiculturalism is where the processes of integration are seen both as two-way and as involving groups and individuals working differently for different groups.68 In this understanding, each group is distinctive; therefore, the 64 For some recent clarifications, see T Sealy, ‘Multiculturalism, Interculturalism, “Multiculture” and Super-diversity: Of Zombies, Shadows and Other Ways of Being’ (2018) 18(5) Ethnicities 694–98. 65 T Modood, Multiculturalism and Interculturalism: Struggling with Confusions (San Domenico di Fiesole, EUI Robert Schuman Centre for Advanced Studies, 2001) 4. Retrieved from: www.coe .int/t/dg4/cultureheritage/mars/source/resources/references/others/38%20%20Multiculturalisme%20 and%20Integration%20-%20Modood%202011.pdf and N Meer and T Modood, ‘How Does Interculturalism Contrast with Multiculturalism? (2011) 33(2) Journal of Intercultural Studies, 189–219. 66 Modood, Multiculturalism ibid 48. 67 T Modood, ‘Integration and Multiculturalism in Western Europe’ in P Kennett and N LendvaiBainton (eds), Handbook of European Social Policy (Cheltenham, Edward Elgar, 2017) 389. 68 See Parekh (n 37); T Modood, Multiculturalism: A Civic Idea (Cambridge, Polity Press, 2007) and CMEB, The Future of Multi-ethnic Britain: Report of the Commission the Future of Multi-ethnic Britain (London, Runnymede Trust, 2000).

150  Eugenia Relaño Pastor integration of groups is in addition to – not an alternative to – the integration of individuals, antidiscrimination measures and a robust framework of individual rights. Multicultural accommodation of minorities is thus different from individualist-integration because it explicitly recognises the social reality of groups, not just of individuals. Fourth, cosmopolitanism emerges by accepting the concept of difference while dissolving the concept of groups. According to cosmopolitanism, neither minority nor majority individuals should think of themselves as belonging to a single identity but be free to mix. People should think of themselves as global citizens.69 It is important to clarify these concepts, not only for the purpose of understanding the real meaning of each term, but because such clarification is also relevant to unveiling possible discrepancies between multiculturalism and interculturalism in rhetoric. Many policy-makers and politicians have retained much of what they have adopted as multiculturalism and simply relabelled it as interculturalism because many citizens no longer felt at ease with the term multiculturalism. Their critics advocate that multiculturalism has fostered communal segregation and mutual incomprehension, as well as having contributed to the undermining of the rights of individuals – and, in particular, women – within minority communities, perceived as if these were single collective actors.70 In fact, neither of these models, assimilation or multiculturalism, has been applied singularly and wholly in any state. Relabelling multiculturalism as interculturalism aimed to avoid criticism while keeping inclusive multiculturalist policies. As a result, the emerging interculturalist paradigm combines and incorporates the best of both terms, assimilation and multiculturalism. It takes from assimilation the focus on the individual; it takes from multiculturalism the recognition of cultural diversity. And it adds a new element, critical to integration and social cohesion, of dialogue on the basis of equal dignity and shared values. Indeed, the combination of interculturalist and multiculturalist elements under the term interculturalism is the approach taken by the international community.71 Another term quite frequently used in EU jargon is the notion of ‘inclusion’. Since 2010 the term has been used to improve the socioeconomic integration of the Roma people in the European Union within the EU Framework for National Roma Integration Strategies. On 7 October 2020, the Commission reinforced the EU Roma strategic framework and set out a comprehensive three-pillar approach that complemented

69 E Ruiz Vieytez, United in Diversity? On Cultural Diversity, Democracy and Human Rights (Brussels, Peter Lang, 2014). 70 See B Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Polity Press, 2001) 292–95. 71 See Council of Europe, White Paper on Intercultural Dialogue, Living Together as Equals in Dignity (Strasbourg, Council of Europe 2008) retrieved from: www.coe.int/t/dg4/intercultural/ source/white%20paper_final_revised_en.pdf.

Is Multiculturalism a Satisfactory Framework?  151 the socioeconomic inclusion of marginalised Roma by fostering equality and promoting participation.72 If interculturalism is an ‘updated version’ of multiculturalism, the question is: what is being ‘updated’? If it is not an updated version, in what ways is interculturalism different from multiculturalism? Modood presents the ‘interculturalism versus multiculturalism’ debate as one strand of a wider discussion concerning the proper ways of reconciling cultural diversity with enduring forms of social unity.73 There is a need to maintain the key features of interculturalism and to be allied with multiculturalism rather than present it as an alternative.74 Meer and Modood proceeded in a number of publications to outline four main issues focused on the comparison between these two terms: (1) communication and dialogue as a defining feature of interculturality as opposed to multiculturalism; (2) interculturalism as ‘less groupist and culture bound’, and therefore more interactive; (3) interculturalism as reinforcing a stronger sense of national identity through cohesion; and (4) interculturalism as more likely to prevent illiberal practices within cultures.75 The authors came to the conclusion that interculturalism and cohesion are concepts that have indeed been historically incorporated into multicultural discourse – hence there is no need to present them as alternatives. Therefore, considering previous points, the answer to the question on whether interculturalism is an ‘updated version’ of multiculturalism is ‘no’. Many of the positive qualities of interculturalism, in terms of encouraging communication, promoting unity and challenging illiberality, are qualities already attributed to multiculturalism. As Meer and Modood maintain: Multiculturalism surpasses interculturalism as a political orientation that is able to recognise that social life consists of individuals and groups, and that both need to be provided for in the formal and informal distribution of powers, as well as reflected in an ethical conception of citizenship, and not just an instrumental one.76

Is Meer and Modood’s approach to multiculturalism the right model to manage religious diversity? The revised version of multiculturalism they outline can certainly offer a suitable framework to manage the plurality of religious

72 See https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/ roma-eu/roma-equality-inclusion-and-participation-eu/eu-roma-national-integrationstrategies-2020_en and https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combattingdiscrimination/roma-eu/roma-equality-inclusion-and-participation-eu_en. 73 N Meer and T Modood, ‘Interculturalism, Multiculturalism or Both?’ (2012) 3(1) Political Insight 30–33 and N Meer and T Modood, ‘How Does Interculturalism Contrast with Multiculturalism?’ (2012) 33(2) Journal of Intercultural Studies 175–96. 74 See H Keval, ‘From “Multiculturalism” to “Interculturalism” – A Commentary on the Impact of De-racing and De-classing the Debate’ (2004) 16(2) New Diversities 125–39. 75 Meer and Modood (n 73). 76 ibid 192.

152  Eugenia Relaño Pastor diversities in three ways: by recognising the right to individual religious identity and practice and the collective right to exist as a religious community – so long as these do not infringe on the human rights of others; by promoting intercultural dialogue, mixing and hybridity as a means of overcoming religious segregation; and by ensuring equality of opportunities and substantive equality through measures that are diversity-sensitive. However, as theories about multiculturalism seem to have been shaped by the new term postmulticulturalism, a pertinent question arises: should policy- and law-makers consider another management or governance model to deal with further aspects of religious diversity – so-called religious superdiversity? What would be the main components of the new model? 4.  A POSTMULTICULTURALISM HUMAN RIGHTS MODEL: EVERYDAY RELIGIOUS SUPERDIVERSITY

The controversial shortcomings of multiculturalism have led many politicians – except perhaps those in Canada – to dismiss the M-word and opt for the notion of interculturalism. Additionally, since the term multiculturalism is frequently wrongly associated with eroding the effects on social cohesion, a new term was brought into life: postmulticulturalism. The term postmulticulturalism tries to supersede the exhausting discussions between multiculturalism and interculturalism. It suggests a new framework that relies on a strong emphasis on conformity and national cohesion and the value and significance of having diversity included and institutionally embedded by national and international policies.77 Among the recommendations offered by the postmulticulturalists, such as Fleras and Vertovec are: (1) take greater account of a range of variables when describing ethnic or migrant minority groups; (2) consider the immigrant’s legal status as a factor in determining the individual’s relation to the state, the labour market and other structures; (3) gather basic information on the new diversity and provide training to service providers about customs and values of particular ethnic and religious minorities; and (4) raise awareness among policy-makers and practitioners of the plurality of affiliations and multiple identifications of immigrants.78 Considering the postmulticulturalist premise of the recognition of multiple identities and the value of diversity in public discourse and putting aside the mischaracterisation of multiculturalism, we should consider if there is a need to sketch a notion that would provide a theoretical framework to inspire public policies on the management of religious diversity. In light of the body of

77 See Vertovec (n 61) 91. 78 ibid 94. For a Canadian context, see A Fleras, Postmulticulturalism Realities, Discourses, Practices (Peter Lang, New York, 2019).

Is Multiculturalism a Satisfactory Framework?  153 contemporary literature on multiculturalism, superdiversity and integration, it could be daring to suggest a new alternative theoretical model.79 In fact, we are in the position of advancing key characteristics of an inclusive human rights model for religious diversity that we could tentatively name ‘everyday religious superdiversity’. This model includes both a structural and individual approach. The structural approach addresses social inequalities and misrecognition of diversities through the implementation of the international human rights law on the protection of minorities (top-down approach). And the individual approach focuses on the protection of religious identities by relying on human dignity’s protection, on the value of recognition, and on everyday life religious experiences (bottom-up approach). 4.1.  The Structural Top-down Approach on Religious Diversity Historically different collective identities have emerged within the same legal system. Modern states were able to construct their corresponding national-state identities despite these differences, either by granting differentiated statuses to minorities and simultaneously requiring them to be loyal to a common national identity or by articulating policies of assimilation and homogenisation. It should not be forgotten that the first recognition of religious freedom in its collective dimension came after the wars of religion in the treaties signed in Europe, which preserved the right to practise religious freedom for minority Christian denominations.80 At the end of the First World War, the question of minorities became the central concern of the League of Nations.81 From a strictly international human rights perspective, although there are no human rights instruments protecting religious minorities as such, a number of legal provisions provide rights to persons belonging to religious minorities (1992 UN General Assembly Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities), rights to individuals with a religious identity who belong to a national minority (FCNM) and rights to religious groups (1981 UN Declaration on the Elimination of All Forms of

79 V Uberoi and T Modood (eds), Multiculturalism Rethought: Interpretations, Dilemmas and New Directions (Edinburgh, Edinburgh University Press, 2015); Parekh (n 37); Sealy (n 64); and T Modood, The Strange Non-Death of Multiculturalism (EUI-Max Weber Lecture Series no 3, 2013). 80 The Peace of Westphalia (1648) brought to an end the Eighty Years’ War between Spain and the Dutch and the German phase of the Thirty Years’ War. The Peace of Westphalia confirmed the Peace of Augsburg (1555), which had granted Lutherans religious tolerance in the empire. Moreover, the Westphalia Peace extended the Peace of Augsburg’s provisions for religious tolerance to the Reformed Calvinist church, thus securing toleration for the three great religious communities of the empire: Roman Catholic, Lutheran and Calvinist. 81 A Balogh, La protection internationale des minorités (Paris, Les Editions Internationales, 1930) 27 and C Weisbrod, ‘Minorities and Diversities: The Remarkable Experiment of the League of Nations’ [Spring 1993] Connecticut Journal of International Law, 361.

154  Eugenia Relaño Pastor Intolerance and of Discrimination Based on Religion or Belief). The 1992 UN Declaration consolidated a set of specific rights to minorities.82 Although the Declaration is, in principle, addressed to members of minorities,83 paragraph 8 of the Preamble of the Declaration mentions ‘protection of minorities’ alongside ‘the protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities’, and Article 1 refers to two fundamental minority rights: the right to exist (collective dimension) and the right to maintain one’s own identity (individual and collective dimension). From the combination of these two precepts, it can be inferred that, despite having an individualistic orientation, there is a basis for recognising minorities as groups. As Thornberry pointed out, a number of human rights proclaimed in international human rights texts can only be fully achieved if they are exercised in community with others. Thus, the enjoyment of some rights presupposes the existence of formal association with others.84 The communal dimension becomes not only a condition for the enjoyment of certain rights but also the core of so-called collective rights. According to the 1992 UN Declaration, states shall take appropriate measures to remove all legal obstacles to develop cultural, religious or ethnic identity, facilitate the growth of those identities through appropriate institutions, and ensure respect for the distinctive and specific characteristics of minorities. Therefore, from a structural approach and according to international human rights law, states are obliged to address social inequalities to remove all potential obstacles that prevent minorities from having their cultural, religious or ethnic identities developed and recognised. Additionally, there are specific rights that states should respect because there is an international legal obligation to do so: the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination (Article 2.1); the right to participate effectively in cultural, religious, social, economic and public life (Article 2.2); the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation (Article 2.3) and the exercise of their rights, including those set forth in the present Declaration, individually as well as in community with

82 See generally JW Bruegel, ‘A Neglected Field: The Protection of Minorities’ (1971) 4 Human Rights Journal 432–33; M Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (Khel am Rhein, Strasbourg, 1993) 480–505; LB Sohn, ‘The Rights of Minorities’ in L Henkin (ed), International Bill of Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press, 1981) 286–87 and P Thornberry, International Law and the Rights of Minorities (Oxford, Clarendon Press, 1992). 83 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly resolution 47/135 of 18 December 1992, www.ohchr.org/ en/professionalinterest/pages/minorities.aspx. 84 P Thornberry, International Law and the Rights of Minorities (Oxford, Clarendon Press, 1992).

Is Multiculturalism a Satisfactory Framework?  155 other members of their group, without any discrimination (Article 3), all of them proclaimed in the 1992 UN Declaration on Minorities. Additionally, we need to add the rights with a collective dimension proclaimed in Article 6 of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Considering the mentioned rights and the states’ obligation to respect them, we can conclude that the protection of the individual religious self-identification of members of minorities and the collective dimension of religious groups are both guaranteed in international human rights law. Consequently, there is already an international legal framework (top-down approach) that covers the protection of everyday religious superdiversity.85 4.2.  The Bottom-up Approach on Religious Diversity In a postmulticulturalist society with a high degree of religious superdiversity people need to be placed at the centre in the policy agenda, and the multiple religious identities and epistemologies demand recognition from everyday multiculturalism. Religion and beliefs are back in the public arena (indeed, they were never gone), and religious and belief claims-making will grow significantly. Whether religious manifestation emerges within cultural groups or personal development through meditation or other spiritual practices is irrelevant. Sociologists and anthropologists of religion have raised awareness about the religious superdiversity in current societies and that religion itself contains diversity in culture, gender, network, etc. Those identities need their space in law, and the relation between religious identities and their legal recognition needs to be reformulated. The reformulation implies overcoming the reductionism of placing human rights against culture/religion or human rights against minorities. In the case of cultural/religious practices contrary to fundamental rights, the latter will undoubtedly prevail. However, if a person expresses his/her culture through

85 Art 6: ‘In accordance with article 1 of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: (a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; (b) To establish and maintain appropriate charitable or humanitarian institutions; (c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief; (d) To write, issue and disseminate relevant publications in these areas; (e) To teach a religion or belief in places suitable for these purposes; (f) To solicit and receive voluntary financial and other contributions from individuals and institutions; (g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief; (h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief; (i) To establish and maintain communications with individuals and communities in matters of religion or belief at the national and international levels.’

156  Eugenia Relaño Pastor fundamental rights (eg through the right to religious freedom or the right to freedom of expression) and that potentially conflicts with the rights of others, the appropriate legal response is to balance the conflicting goods and rights and not the a priori denial of the expression of cultural identity articulated in rights. As Bobbio noted, the law is not nourished by equality but by difference.86 The recognition of the difference is the basic presupposition for protecting personal autonomy and for the exercise of freedoms (collectively and individually speaking). In a postmulticulturalist scenario, the everyday religious superdiversity should result from the effective implementation of the international human rights framework by considering a human rights inclusive pro-diversity model, and from the respect for the personal identity rooted in human dignity. This reasoning leads to three final conclusions: (1) rights, equal for all, are exercised through my identity, not despite it; (2) religious superdiversity, recognisable as fact in our societies, demands an enforceable legal protection; and (3) minorities could need specific rights that will be implemented according to each concrete situation (a postmulticulturalist context). Finally, as the right to religious equality exists in the face of discrimination, a right to differentiation (differential treatment) emerges in the face of standardisation. The right to be different and preserve one’s own religious identity requires effective policies to ‘multiculturalise’ the public sphere, institutions, courts and public policies. Through the ‘multiculturalisation’ of the public domain, everyday religious superdiversity will find the soil to flourish.

86 N Bobbio, ‘Iguales y diferentes’ in Elogio de la templanza y otros escritos morales (Madrid, Temas de hoy, 1997).

Part III

Minority Recognition in Sociolegal Strategies and Frameworks

158

9 Freedom of Expression Revisited: Limiting Free Speech to Stop Silencing Women and Vulnerable Minorities MIA CAIELLI

1. INTRODUCTION

T

wenty-first-century right-wing populisms and nationalisms have transcended geographical boundaries and spread throughout Europe, conveying negative sentiments against plural conceptions of society and rejecting the European Union as a promoter of multicultural values. Therefore, all contemporary liberal democracies – from the younger and more fragile in Central and Eastern Europe to the long-established Western ones1 – are being hampered in their pursuit of inclusion and in their efforts to overcome the inherent and unavoidable dynamics of exclusion.2 Charles Taylor explored such dynamics several years ago, pointing out that they derive from the need of societies founded on popular sovereignty for a high degree of cohesion, explaining that: The entry of new kinds of people into the country, or into active citizenship, poses a challenge. The exact content of the mutual understanding, the bases of the mutual trust, and the shape of the mutual commitment all have to be redefined or reinvented.3 1 The Hungarian and Polish conservative governments, led respectively by Orban and Kaszinski, are not the only examples of the growing trend towards nationalism and illiberalism: European democracy and civil society are facing significant challenges because of the rise of Eurosceptic, populist, extremist parties and movements in other countries such as Italy (Lega Nord and Fratelli d’Italia), France (Rassemblement national) and the Netherlands (Partij voor de Vrijheid). See P Taggart and A Pirro, ‘European Populism before the Pandemic: Ideology, Euroscepticism, Electoral Performance, and Government Participation of 63 parties in 30 Countries’ (2021) 51(3) Italian Political Science Review 281–304. 2 A Piacentini, ‘Save the People! Elite–People Relations and the Surge of Nationalism and Right-Wing Populism across Europe’ (2020) European Yearbook of Minority Issues 3–24. 3 C Taylor, ‘The Dynamics of Democratic Exclusion’ (1998) 9(4) Journal of Democracy 143–56, 146.

160  Mia Caielli The fundamental laws adopted in continental Europe in the aftermath of the Second World War to a certain extent considered this access of new subjects to active citizenship, dedicating specific provisions to their political, civil and equality rights. Women can be considered the first of these ‘new’ entries as they had been granted the right to vote shortly before. Embryonic attempts to question the universality inherent in liberalism and to reveal the patriarchal character of the neutral category of the individual4 can be found in several European constitutions: the conquest of women’s suffrage paved the way to challenging the ‘two-track citizenship model for men and women on the basis of a theory of separate spheres’,5 namely the public and the domestic spheres. In addition, the explicit prohibition of discrimination based on religion and ethnicity in the constitutional equality provisions can be considered as a reaction to the Holocaust and to the exclusionary policies implemented by the nazi and fascist regimes of the first half of the twentieth century that had denied the status activae civitatis6 to the members of certain ethnic and religious minorities. The recognition of sexual minorities – namely lesbian, gay, bisexual, transgender and intersex individuals – as full members of the society, participating in its workings and in its rewards, is much more recent. The intersection of sexuality and citizenship has been increasingly studied since the 1990s: after Carole Pateman’s analysis of the way citizenship has been constructed in the male image,7 theories on ‘sexual/intimate citizenship’ emerged with the critique of the classical liberal theory’s definition of citizens as adult males operating in a free market taking different forms8 and challenging the heteronormative assumptions that eventually lead to the marginalisation of individuals who experience same-sex emotional and sexual desire.9 With regard to transgender people,10

4 See C Pateman, The Sexual Contract (Oxford, Stanford University Press, 1988). 5 R Rubio-Marín, ‘On Constitutionalism and Women’s Citizenship’ (2021) 74(1) Current Legal Problems 361–402, 362. 6 G Jellinek, System der subjektiven öffentlichen Rechte (Tübingen, Mohr, 1892/1905). 7 Above, n 4. 8 It is sufficient here to mention TD Evans, Sexual Citizenship: The Material Construction of Sexualities (London and New York, Routledge, 1993); K Plummer, Intimate Citizenship: Private Decisions and Public Dialogues (Seattle, WA, University of Washington Press, 2003); and D Richardson, ‘Rethinking Sexual Citizenship’ (2017) 51(2) Sociology 208–24, for her critique of the Western-centric formulations of sexual citizenship, advancing understandings of how sexual citizenship operates in the Global South. 9 Such assumptions operate even in most contemporary democracies explicitly prohibiting discrimination on grounds of sexual orientation given the so-called ‘politics of passing’, consisting of unwritten rules requiring homosexuals to perform – at least in certain contexts – as heterosexuals: an assimilationist strategy, playing a crucial role in the constitution of heteronormative citizenship by ‘muting gay and lesbian difference’. C Johnson, ‘Heteronormative Citizenship and the Politics of Passing’ (2002) 5(3) Sexualities 317–36, 330. 10 Here understood as persons whose gender identity, gender expression or behaviour does not conform to that typically associated with the sex to which they were assigned at birth: this definition is provided by the American Psychological Association (APA): www.apa.org/topics/lgbtq/transgender (last accessed 14 January 2022).

Freedom of Expression Revisited  161 their condition featured as a mental disorder in international diagnosis manuals with serious consequences for their social inclusion. Only the most recent literature has begun developing an understanding of the non-correspondence of gender identity and sex assigned at birth as a matter of human diversity rather than as pathology: in the past decades many changes in terminology have been made in the Diagnostic and Statistical Manual and in the International Classification of Diseases (ICD), even if it was only in 2019, in ICD-11, that the term ‘transsexualism’ was replaced with ‘gender incongruence’ and removed from the chapter on mental disorders. The present work will draw from the increased scholarly attention on Pateman’s idea of ‘sexual contract’ – or the liberal construction of contract based on the subjection of women – and on the debated notion of ‘sexual citizenship’ within political discourse and the social sciences. In fact, both the subversion of traditional assumptions about the original social contract which obscured female subordination and the increasing academic debate over the connection between sexuality and citizenship serve the purposes of explaining – at least in part – the claim for sexual citizenship and the persisting obstacles to overcoming underrepresentation of women and sexual minorities in day-to-day politics, whose voice is less likely to be heard in public deliberation and the reasons why current nationalist, misogynist and homotransphobic positions can no longer be analysed in terms of ‘Europeanisation’ of sexual citizenship. Until recently, the rights of sexual minorities were considered ‘as part of EU conditionality, highlighting how parts of Eastern Europe in particular are constructed as “backward” and not “civilised” enough’.11 In fact, a surge in attacks against LGBT people is being witnessed across the whole continent and so-called “gender ideology” seeks to stifle the identities and realities of all those who challenge the social constructs that perpetuate gender inequalities and gender-based violence in our societies.12 This contribution intends to show that the ongoing process of exclusion of women and sexual minorities takes many forms, and it implies different strategies with hate speech becoming an extremely widespread and pervasive weapon.13 The legal repression of hateful public discourses is often criticised

11 Richardson (n 8) 214. 12 cf D Paternotte and R Kuhar, ‘Disentangling and Locating the “Global Right”: Anti-Gender Campaigns in Europe’ (2018) 6(3) Politics and Governance 6–19. 13 Although there is not a universal definition of hate speech, I refer here to all those ‘forms of expressions that spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance’: this is the definition provided by the Expert Committee on Combating Hate Speech (ADI/MSI-DIS) which is currently preparing a draft recommendation by the Committee of Ministers to Member States on a comprehensive approach to addressing hate speech, including in the context of online environment, within a human rights framework: see the Background Document of the Committee of Experts on Combating Hate Speech (ADI/MSI-DIS) of 25 May 2020, https://rm.coe.int/background-for-adi-msi-dis-june-2020/16809f6b6d (last accessed 20 December 2020).

162  Mia Caielli and prevented by invoking the classical liberal defence of free speech. But the abuse of the fundamental right of expression, especially in the current digital era, often hinders the full and effective access of women and minorities to the economic, political and social life of the country they live in, thus perpetuating their legal or de facto condition of subordination and hampering the effectiveness of existing antidiscrimination law. Despite the internet being often perceived as an emancipatory tool for disadvantaged or subaltern groups given its openness and inclusiveness, it has become pretty evident that hate speech found a very fertile ground to spread quickly and pervasively with the boomerang effect of perpetuating and aggravating dynamics of social exclusion. Hate speech can be interpreted as a form of resistance to the constitutional creation of pluralist representative democracies granting a formally equal citizenship to women and to the members of many minority groups traditionally excluded from participation in political and public affairs: a resistance that is often driven by right-wing nationalist, populist parties and organisations. Therefore, the criminalisation of hate speech should be seen as a viable option since it could represent an instrument to effectively include women and members of sexual minority groups into democratic life, thus enforcing the substantive equality principle, a foundational constitutional principle in all contemporary European democracies and contributing to advance the protection offered by EU and domestic antidiscriminatory law. Achieving de facto equality means going beyond the mere prohibition of discriminatory treatment, increasing the possibility of all to cultivate their own identities and have their voice heard: this dimension emerges clearly in the Italian formulation of such principle where it is affirmed that it is the state’s duty to remove the obstacles ‘impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country’.14 Moreover, by suggesting a new interpretation of European liberal democracies’ commitment to equality, the most recent constitutional theory has gone even beyond the principle of substantive equality, already embedded in most of European fundamental laws and in constitutional jurisprudence.15 This recent stance on a state’s positive obligation to remove existing barriers having a negative impact on a situated individual is often referred to as ‘transformative equality’ and, while it is of course closely linked to the idea of substantive equality, it goes even further, as it entails challenging the underlying social framework and pursuing ‘the dismantling of systemic inequalities’.16

14 Art 3.2 of the Italian Constitution. 15 On the European turn from the liberal notion of non-discrimination towards an approach based on substantive equality, see, inter alia, C Barnard and B Hepple, ‘Substantive Equality’ (2000) 59(3) Cambridge Law Journal 562–85. 16 B Hepple, Equality: The New Legal Framework (Oxford, Hart, 2014) 28.

Freedom of Expression Revisited  163 2.  HATE SPEECH AND THE RISK OF ELITIST DEMOCRACIES

The theoretical assumptions behind this work derive from Jeremy Waldron’s landmark, yet still rather controversial, book, The Harm in Hate Speech, which entered into the heated debate over the scope and limits of the First Amendment to the US Constitution protecting freedom of expression, arguing how hate speech should be regulated as part of the constitutional commitment to human dignity and respect for the members of vulnerable minorities. Leaving aside the analysis on whether Waldron intends that ‘harm is not caused by the speech, but the speech itself constitutes the harm’,17 I will focus on his central claim, that hate speech causes a concrete harm as it undermines a public good which can be considered an aspect of the fundamental right to human dignity:18 the provision of assurance as a ‘reliable underpinning of people’s basic dignity and social standing’.19 What seems particularly innovative in the way Waldron targets the generalised US view that hate speech laws infringe the First Amendment is that the harm in question is the silencing of subaltern groups or, to put it in Charles Taylor’s words, in their misrecognition: A person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves. Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being.20

According to Waldron, hate speech bans are legitimate because they protect the dignity of members of the targeted groups as equal members of society: his analysis includes a detailed comment on the US Supreme Court 1952 Beauharnais v Illinois decision on the constitutionality of state group libel laws, which found that the defamatory and hateful nature of the racist leaflet for which its author had been fined was sufficient to justify the charge, even if no physical violence was threatened therein.21 It is irrefutable that this decision has been widely discredited in the US legal context,22 at least since its implicit overturning in the 1964 New York Times v Sullivan decision.23

17 E Barendt, What Is the Harm of Hate Speech? (2019) 22(2) Ethical Theory and Moral Practice 539–53, 540. 18 Human dignity is explicitly considered as a fundamental right in several European constitutions and in Art 1 of the EU Charter of Fundamental Rights, which states that: ‘Human dignity is inviolable. It must be respected and protected.’ 19 J Waldron, The Harm in Hate Speech (Cambridge, MA, Harvard University Press, 2012) 93. 20 C Taylor, ‘The Politics of Recognition’ in A Gutmann (ed), Multi-culturalism: Examining the Politics of Recognition (Princeton, Princeton University Press, 1994) 25–74, 25. 21 Waldron (n 19) 47–52. 22 Barendt (n 17) 541. 23 New York Times v Sullivan 376 US 254 (1964).

164  Mia Caielli However, it is worth noticing the assonances between the perspective adopted by Justice Frankfurter when writing that five–four majority opinion, and the approach of the European Court of Human Rights when judging hate speech cases in the past decade. In fact, in its 2012 decision Vejdeland & Others v Sweden, the Strasbourg Court agreed that incitement to hatred does not necessarily entail a call for an act of violence or other criminal acts, thus reiterating – for homophobic statements – what it had previously held in several Holocaust-denial cases: ‘[A]ttacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favor combating racist speech in the face of freedom of expression exercised in an irresponsible manner.’24 This proposition has been explicitly reiterated in its recent decision concerning hate speech against homosexuals on Facebook, Beizaras and Levickas v Lithuania,25 which found that the Lithuanian authorities had violated the European Convention on Human Rights (ECHR) because they had not fulfilled their positive obligations to protect the targeted persons against discrimination (Article 14) and against breach of their privacy (Article 8). Most importantly, the Court took the opportunity to recall that it had already ‘often emphasised that pluralism and democracy are built on genuine recognition of, and respect for, diversity. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion.’26 I would add that the propositions of both the old, nowadays overruled US Supreme Court decision and of the European judges have become part of European constitutionalism as misrecognition and exclusion are seen as the two main effects of discourses of hate impacting on the effectiveness of contemporary democratic pluralism, here broadly intended as a model of democracy that has departed from the Schumpeterian idea of representative democracy. Through their fundamental laws, twenty-first-century European states tend to define themselves as multicultural democracies,27 in which difference is accommodated28 and diversity is seen as beneficial, thus trying to overcome more traditional processes of assimilating minority cultures. In this sense, Waldron’s analysis of the exclusionary effects of hate speech is primarily functional to a precise democratic goal: the eradication of social hierarchies.

24 Vejdeland & Ors v Sweden Appl No 1813/07 ECHR 9 February 2012, para 55. 25 Beizaras and Levickas v Lithuania Appl No 41288/15 ECHR 14 January 2020, para 125. 26 ibid para 107. 27 The literature on multiculturalism is too vast to cite comprehensively: one of the most recent works of Kymlicka seems particularly interesting for his arguments against a neoliberal understanding of equality, that is, ‘the equal right of all to market themselves and their culture, and to safely consume the cultural products of others, indifferent to issues of disadvantage’. W Kymlicka, ‘Solidarity in Diverse Societies: Beyond Neoliberal Multiculturalism and Welfare Chauvinism’ (2015) 3(4) Comparative Migration Studies 1–19, 7. 28 See, inter alia, BR Barber, Strong Democracy: Participatory Politics for a New Age (London, University of California Press, 2003).

Freedom of Expression Revisited  165 But the call for legal restrictions to hate speech should also be founded upon another premise: contemporary democracies tend to mitigate the liberalistic separation between the public and private spheres and their basic principles are extended to cover private and non-political institutions that have an impact on society as a whole.29 The traditional dichotomy between state and society, public and private, and so on induces ‘beliefs that existing social arrangements are just, natural, inevitable, legitimate, thereby denying our capacity to conceive of new forms of human relations and to challenge existing forms of domination’.30 Following this line of thought, among the first calling for legal sanctions for hate speech, Mari Matsuda’s analysis seems particularly interesting for her focus on the loss of liberty, understood as a severe de facto restriction of the freedom to participate fully in society, that certain minority groups suffer as a direct consequence of a state’s silence on racist propaganda supported by civil libertarians, with hate speech perceived as a phenomenon impacting on the private sphere. The contradiction between the United States’ sacrality of free speech and the constitutional goals of freedom and equality could instead be partly solved by moving ‘the societal response from the private to the public realm’,31 thus reinforcing Delgado’s arguments concerning the harmful effects caused by racism and racial insults not only for the victims but also for society as a whole.32 The absence of a legislative intervention is seen as a ‘story with a message, perhaps unintended, about the relative value of different human lives. A legal response to racist speech is a statement that victims of racism are valued members of our polity.’33 Matsuda’s attention to what she calls the ‘outsider jurisprudence’, a ‘methodology, which rejects presentist, androcentric, Eurocentric, and false-universalist descriptions of social phenomena’,34 contains a clear reference to critical race theories and legal feminism that revealed how law played a role in the construction of racism and patriarchy. To support our claim in favour of hate speech bans as instruments for the inclusion and recognition of vulnerable groups, we might add that the same is true for sexual minorities. In fact, persisting and pervasive heteronormativity in contemporary legal systems is at the origin of exclusionary practices affecting

29 Reference here is to the multifaceted theories of the participatory democrats: in particular, see N Rose, ‘Beyond the Public/Private Division: Law, Power and Family’ (1987) 14(1) Journal of Law and Society 61–76. 30 ibid 63. 31 MJ Matsuda, ‘Public Response to Racist Speech: Considering the Victim’s Story’ (1989) 87(8) Michigan Law Review 2320–2381, 2321. 32 R Delgado, ‘Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling’ in CR Lawrence, MJ Matsuda, R Delgado and K Crenshaw (eds), Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (New York, Taylor & Francis, 1993) 89–110, explaining that ‘when individuals cannot or choose not to contribute their talents to a social system because they are demoralized or angry, or when they are actively prevented by racist institutions from fully contributing their talents, society as a whole loses’ (93). 33 Matsuda (n 31) 2322. 34 ibid 2324.

166  Mia Caielli LGBTI people: such heteronormativity can in fact be considered perpetuated when homophobic and transphobic expressions or conduct are not outlawed, with the effect of reinforcing the historical vertical relationship among individuals according to their gender and sexuality. Hate speech bans, therefore, are not only legitimate but required if liberal pluralist democracies are understood as ‘polyarchal’ democracies, that is, according to ‘early’ Dahl, political regimes extending ‘the size, number, and variety of minorities whose preferences will influence the outcome of governmental decisions’.35 Despite the criticism over his concept of polyarchy as an elite theory of democracy,36 I consider his standing against the classical procedural view of democracy as a groundbreaking intuition that paves the way to contemporary theories of multicultural democracies accepting a contextualised balancing between the basic fundamental freedom of expression and the right to dignity: a balancing that requires ‘taking into account the way “power asymmetries” affect public speech in a number of ways’.37 In other words, hate speech bans could contribute to fulfilling the constitutional promises of nurturing diversity and achieving inclusive citizenship by reducing the risk of new forms of elitist democracies, here conceived as ‘simple representative democracies’ in which minorities can only aspire to be represented by the political elite,38 without inclusive arrangements envisaged for groups systematically and historically excluded. Their nature is only apparently symbolic as their aim is to achieve substantive changes in the libertarian paradigm of equal treatment, envisaging a subversion of power relations among groups.39 3.  AGAINST ORIGINALISM IN CONSTITUTIONAL INTERPRETATION: FREEDOM OF EXPRESSION IN THE TWENTY-FIRST CENTURY

In the second half of the twentieth century the wording and substance of the provisions protecting free speech began to change in most democracies, both at international and regional level: they significantly departed from the absolutism of the First Amendment of the US Constitution, which declares that

35 RA Dahl, A Preface to Democratic Theory (Chicago and London, Chicago University Press, 1956) 133. 36 See the author’s reply to these critiques: RA Dahl, ‘Further Reflections on “The Elitist Theory of Democracy”’ (1966) 60(2) American Political Science Review 296–305. 37 M Maussen and R Grillo, ‘Regulation of Speech in Multicultural Societies: Introduction’ (2014) 40(2) Journal of Ethnic and Migration Studies 174–93, 189. 38 See B Tholen and SV de Vries, ‘The Inclusion and Exclusion of Minorities in European Countries: A Comparative Analysis at the Local Level’ (2004) 70(3) International Review of Administrative Sciences 455–76, 457. 39 cf E Galeotti, ‘Hate speech: un dibattito lungo due decenni’ (2019) 224 Biblioteca della Libertà 3–18, 4.

Freedom of Expression Revisited  167 ‘Congress shall make no law … abridging the freedom of speech’ and increased the breadth of its restrictions, already imagined in the coeval French Declaration of the Rights of Man and of the Citizen, which defined this fundamental right as ‘one of the most precious’, while specifying that ‘any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law’. Post-Second World War constitutions and supranational law began granting public authorities powers to limit the exercise of free speech on the grounds of national security, public order, public health or public morality and, in the following decades, such limits have been often further detailed. At international level, for example, the 1966 International Covenant on Civil and Political Rights (ICCPR) protects the right to freedom of expression, but it also explicitly states that both propaganda for war and ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ are prohibited by law (Article 20). This specification seems particularly interesting as it was added to the previous provision, which already made it clear that the exercise of the right to hold opinions and of the freedom of expression ‘carries with it special duties and responsibilities’ and may be restricted for several reasons, including ‘for respect of the rights or reputations of others’ (Article 19).40 With regard to regional law, it is worth mentioning a number of European soft-law documents urging domestic legislators to introduce hate speech bans to protect various groups and minorities against discrimination. Without claiming to be exhaustive, it is sufficient here to remember, within the European Union, the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law; the Parliament Resolution of 18 December 2019 on public discrimination and hate speech against LGBTI people, including LGBTI-free zones41 and, within the Council of Europe, the 2015 ECRI General Policy Recommendation No 15 on Combating Hate Speech42 and Recommendation CM/Rec (2010)5 of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, which recommended the Member States of the Council of Europe to take appropriate measures to combat all forms of expression, including in the media and on the Internet, which may be reasonably understood as likely to produce the

40 However, it seems interesting to note that the Human Rights Committee repeatedly points out in its General Comment on this article that such restrictions must be constructed with care and with regard to the term ‘others’, and provides as an example ‘individual members of a community defined by its religious faith or ethnicity’, thus reiterating the special attention paid by the constitutionmakers of the second half of the twentieth century to the victims of race segregation and of nazi/ fascist persecutions (General Comment no 34, 102nd session Geneva, 11–29 July 2011, § 28). 41 2019/2933(RSP). 42 CRI (2016)15.

168  Mia Caielli effect of inciting, spreading or promoting hatred or other forms of discrimination against lesbian, gay, bisexual and transgender persons. (Article 6)

These legal instruments seem particularly worth mentioning for at least two reasons. First of all, their focus on the goal of achieving more inclusive societies and effective democracies is always made clear, together with the acknowledgement that hate speech is based on the assumption that some groups of people are superior to others, and damages social cohesion by undermining respect for minorities. Second, I contend that they help in dismissing the so-called ‘legitimacy argument’, which is preventing some prominent US law scholars from accepting restrictions to the freedom of expression, as they argue that such limitations would diminish the legitimacy of antidiscrimination laws, both in terms of popular acceptance and with respect to the morality of their enforcement.43 The European perspective over hate speech, instead, seems based on the opposite assumption: hate speech bans do not damage democratic legitimation44 nor do they undermine the legitimacy of laws related to hate speech, such as laws prohibiting discrimination, but they can contribute to their effectiveness. Moreover, it has been rightly noted that the Strasbourg and Luxembourg courts have been developing a ‘European First Amendment’: they approached the free speech issue with a victim-centred constitutional analysis, acknowledging how ‘certain utterances do not just “sound” in the semiotic space of oral expressions, written texts, pictures, and songs, but perform as acts’.45 Moreover, recent European provisions adopted to fight hate speech seem to offer a new way of conceiving freedom of speech as they reaffirm ‘the fundamental importance of freedom of expression and opinion’, but in the meantime recalling ‘the grave dangers posed by hate speech for the cohesion of a democratic society, the protection of human rights and the rule of law’.46 After all, the process of cooling down the heated debate over the conflict between hate speech laws and freedom of expression is neither fast, nor easy, as it requires a reconceptualisation of free speech. Let us not forget that this undisputed cornerstone of any democracy stems from eighteenth-century liberalism and, in order to achieve greater inclusion and address the ‘diversity deficit’, the reading of this crucial basic freedom should depart from its original meaning, as it was codified in

43 See J Weinstein ‘Hate Speech Bans, Democracy and Political Legitimacy’ (2017) 32 Constitutional Commentary 527–83 and R Dworkin ‘Foreword’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (Oxford, Oxford University Press, 2009). 44 Robert Post, in the theoretical conversation with Weinstein, pointed out that ‘hate speech itself may damage democratic legitimation. No one doubts that hate speech causes many kinds of harm. A particularly virulent form of harm is the sense among target groups that they are excluded from, or not entitled to participate in, the relevant demos.’ R Post, ‘Legitimacy and Hate Speech’ (2017) 32 Constitutional Commentary 651–59, 657. 45 U Belavusau, ‘Fighting Hate Speech through EU Law’ (2012) 4(1) Amsterdam Law Forum 20–35, 32. 46 Preamble of the ECRI General Policy Recommendation no 15 on Combating Hate Speech.

Freedom of Expression Revisited  169 the British, US and French bills of rights over two centuries ago, at the end of absolutism and alongside the formation of the modern state, proclaimed by constitution-makers and legislators who represented a very small minority of people: white, male, heterosexual, cisgender, able and Christian. Alexis de Tocqueville’s discussion of the freedom of speech enshrined in the First Amendment was strictly connected to the freedom of religion, of political association and the freedom of the press; John Stuart Mill had a similar stance in On Liberty (1859): a close relationship between religious tolerance and free speech dating back to the seventeenth century that can hardly represent the rationale to defend limitless freedom in our times. Pluralism as a civic ideal differs from the pluralism pursued by present-day multicultural and sometimes ‘plurinational’ systems, as some Andean national systems – Ecuador and Bolivia – define themselves, emphasising their aim of overcoming monist liberal constitutionalism and embracing ‘the horizon of social integrationist constitutionalism’.47 It has already been argued that ‘this praise should perhaps be tempered by consideration of Tocqueville’s purposes and the historical circumstances within which he worked and understood both democracy and America’.48 Similarly, Mill’s argument of ‘human fallibility’, concerning the uncertainty with respect to what is true and what is false, is used to support the claim that there can be no justifications for restrictions to the freedom of expression, since truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is allowed to collide with error.49 This argument is undoubtedly fascinating and appealing: indeed, the popular and powerful theory of the ‘free marketplace of ideas’, which was formulated by drawing an analogy with the economic marketplace, is still very often invoked by the US Supreme Court and federal judges to oppose censorship.50 To put it otherwise, it might be argued that social, pluralistic, contemporary legal systems should reconsider the ‘social contract’ that determined the subordination of women and of many minority groups: this is Pateman’s seminal argument, that freedom is predicated on subordination. One could therefore argue that freedom of speech was formulated, based and founded on subordination and on an individualistic, libertarian approach. Bangstad has explained the re-reading of the freedom of expression that evolved in the past three decades in the Norwegian political and legal context,

47 RZY Fajardo, ‘The Panorama of Pluralist Constitutionalism. From Multiculturalism to Decolonization’ in C Rodríguez-Garavito (ed), Law and Society in Latin America (London, Routledge, 2014) 157–73, 157. 48 PC Kissam, ‘Alexis de Tocqueville and American Constitutional Law: On Democracy, the Majority Will, Individual Rights, Federalism, Religion, Civic Associations and Originalist Constitutional Theory’ (2007) 59(1) Maine Law Review 35–74, 36. 49 JS Mill, On Liberty (Kitchener, Batoche Books, 1859) 19–21. 50 cf, inter alia, DL Hudson, The First Amendment Freedom of Speech (London, Thomson Reuters, 2012).

170  Mia Caielli partly in response to the acquittal of a Norwegian neo-nazi accused of antisemitic and racist hate speech: restrictions to hate speech are no longer considered anti-liberal as they do not undermine the principles of liberal and democratic societies in which equal citizenship rights and the right to dignity for individuals of all backgrounds are equally fundamental.51 ‘But the importance of recognition has been modified and intensified by the new understanding of individual identity that emerges at the end of the eighteenth century. We might speak of an individualized identity, one that is particular to me, and that I discover in myself.’52 Nowadays, collective and group rights are finding appropriate embedment in European constitutions that go beyond the legal-political tradition of liberalism by formally or implicitly adhering to welfare state principles. Resistance to recognising minority groups’ rights going beyond the mere prohibition of discriminatory treatment still comes from a conservative reading of constitutional texts and from an indolent preference for the old, traditional eighteenth-century interpretation of some basic human rights, such as those to equality or free speech. Care for a full and effective enjoyment of rights by vulnerable minorities could require a quantum of limitation to the freedom of speech. Free speech was conceptualised in an era when public expression was conducted either verbally or through the press. Some of the past century’s constitutions (and human rights conventions) also cover television and radio – relatively few could broadcast to large numbers of people – but none considers digital communication. This is another factor suggesting that the relationship between free speech and democracy should be revisited to focus on the promotion of a truly democratic culture. On the one hand, as Balkin explains, this is ‘a culture in which individuals have a fair opportunity to participate in the forms of meaning-making and mutual influence that constitute them as individuals’,53 and the internet is excellent in allowing more and more people to express themselves publicly and participate in public debates. On the other hand, there is an increasing need to limit free speech and ensure that ‘all people and minority groups shall feel safe and respected within online communities’,54 as the risk

51 S Bangstad, ‘Fighting Words: What’s Wrong with Freedom of Expression?’ (2014) 40(2) Journal of Ethnic and Migration Studies 266–82. 52 Taylor (n 20) 28. 53 JM Balkin, ‘Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation’ (2018) 51 University of California Davis Law Review 1149–1210, 1151. See also JM Balkin, ‘Free Speech Is a Triangle’ (2018) 118(7) Columbia Law Review (Symposium: A First Amendment for All? Free Expression in an Age of Inequality) 2011–2056. 54 Balkin, ‘Free Speech in the Algorithmic Society’ (n 53) 1195. The author explains how platform owners are now imposing some rules to make end-users feel safe and respected because this allows them to be profitable. Platform owners are private actors, and constitutional law permits them to engage in content-based regulation that would be prohibited under the First Amendment if they were treated as state actors, but the ‘collateral effect’ of this concern is the possibility of a constant flow of ideas and opinions.

Freedom of Expression Revisited  171 of silencing vulnerable minorities is far greater now than when the world of communication used to be just analogue. Contemporary liberal democratic constitutions seem to provide a fairly solid basis for setting limitations to free speech: not only is the number of European countries forbidding hate speech even against sex, sexual orientation and gender identity constantly increasing,55 but the European Commission has recently decided to respond to online incitement to hatred against groups and has agreed a Code of conduct on countering illegal hate speech online with Facebook, Microsoft, Twitter and YouTube.56 On the contrary, the US First Amendment – in its still prevailing originalistic meaning – is being frequently invoked to prevent not only public but even private actors, such as social media platforms, from limiting and controlling speech.57 4.  CONCLUDING REMARKS

I am aware of the many constitutional issues commonly raised when imposing restrictions on hateful, offensive speech, typically related to the protection of the fundamental freedom of expression. In my opinion, the most serious legal arguments against the prohibition of hate speech revolve around the proper role of criminal law and its use to combat discrimination and exclusion. In particular, and most importantly, criminal law is a distinctive body of law which legal philosophers commonly conceive as the last resort;58 moreover, it is undeniable that the use of criminal law has shown some limits, as the number of prosecutions and penalties in jurisdictions with hate speech bans is usually rather low, thus contributing to its ineffectiveness.59 But I would argue that laws against inciting hatred have a strong declarative effect as they assert ‘that certain

55 For an overview of the existing hate speech bans in several European national systems, see K Topidi, ‘Words that Hurt (2): National and International Perspectives on hate Speech Regulation’, ECMI Working Paper no 119 (30 September 2019) 10–31, retrieved from https://www.ecmi.de/ publications/ecmi-research-papers/119-words-that-hurt-2-national-and-international-perspectiveson-hate-speech-regulation (last accessed 30 December 2020). 56 The agreement was signed on 31 May 2016 but in the past five years many other social media platforms decided to adhere. On the complexities related to the regulation of hate speech in the digital age, see, inter alia, O Pollicino and G Pitruzzella, Disinformation and Hate Speech: A European Constitutional Perspective (Milanm, Bocconi University Press, 2020). 57 See DL Hudson, Jr, ‘In the Age of Social Media, Expand the Reach of the First Amendment’ [2019] American Bar Association, https://bit.ly/2V7eCP3 (last accessed 4 December 2020). Erwin Chemerinsky suggested a revisitation of the state action doctrine some years before, arguing that private censorship can be as harmful as governmental censorship. E Chemerinsky, ‘Rethinking State Action’ (1985) 80(3) Northwestern University Law Review 503–57, 533–34. 58 D Husak, ‘The Criminal Law as Last Resort’ (2004) 24(2) Oxford Journal of Legal Studies 207–35. 59 cf E Fronza, Memory and Punishment: Historical Denialism, Free Speech and the Limits of Criminal Law (New York, Springer, 2018), analysing the risk of criminal law becoming a sort of rhetorical law and a ‘false solution’ (160).

172  Mia Caielli expressions are deemed unacceptable by the country as a whole and reassures vulnerable groups that their interests and identities are considered worthy of national acknowledgment’.60 However, it appears increasingly difficult to agree with those who believe that hate speech bans are unnecessary ‘for democratic societies that are sufficiently stable, mature and prosperous to be able to protect vulnerable individuals through other means, without having to ban ideas from public deliberation’.61 It has already been pointed out that European democracies are facing a series of threats that are rendering them not as stable and solid as we used to think. And if it is true what Robert Post claims, that the harm that hate speech causes ‘depends on the ambient legal and social environment and on whether members of target groups nevertheless feel welcome, as for example by non-discriminatory access to housing, employment, healthcare, police protection, and so on’,62 it is quite irrefutable that this sense of safety and inclusion, capable of defusing the dangers posed by hate speech, is not what women, ethnic and religious minorities or the LGBTI community are currently experiencing in everyday life. Maybe it is time for long-established democracies to commit to fight not just – for example – any form of fascism – but also any other form of domination, maybe starting with white patriarchal rule: a reconceptualisation of the classic, foundational freedom of speech should stem from this awareness. In its section III, dedicated to ‘Information and Communication’, the Constitution of Ecuador of 2008 provides a very interesting example of this new approach: in fact, Article 19 grants authorities broad powers to limit free speech, and to set explicit duties and responsibilities to both individual and collective ways of exercising the right of expression, and prohibits, for instance, ‘broadcasting advertisements that foment violence, discrimination, racism, drug addiction, sexism, religious or political intolerance and all that undermines rights’. This is just one of the responses of recent Andean constitutions to legal pluralistic demands – the subject of a vast literature – which are being explored as possible models for a European change of direction towards an effective pluralisation and as a way to remedy current deficiencies in the recognition of minorities.63

60 E Bleich, ‘The Rise of Hate Speech and Hate Crime Laws in Liberal Democracies’ (2011) 37(6) Journal of Ethnic and Migration Studies 917–34, 928. 61 E Heinze, ‘Towards the Abolition of Hate Speech Bans: A Viewpoint Absolutist Perspective’ in T Loenen and J Goldschmidt (eds), Religious Pluralism and Human Rights: Where to Draw the Line? (Antwerp, Intersentia, 2007). 62 Post (n 44) 658. 63 cf J Eichler, ‘“Migrating Recognition” or “Constitutionalism Reversed”: Relating Andean Plurinational Constitutionalism and European Integration Politics’ (2020) 42(4) Human Rights Quarterly 790–816.

10 Building Bridges between Dismissal Protection and Non-discrimination Law: Reopening the Debate on Equality Principles and Social Groups CEREN KASIM1

T

he international community first began to address individual characteristics of discrimination in depth with the emergence of the debate on racial discrimination. Confrontations with colonialism and related practices of racial segregation played a pioneering role.2 However, antidiscrimination law owes its recognition as an independent field of law to US history.3 It gradually emerged after the Second World War at the level of US domestic jurisprudence; starting with struggling against racial and later gender discrimination, it continued to spread further.4 After the 1990s, the European legal regime played a pioneering role in the development of antidiscrimination law outside the United States.5 Started with gender discrimination (see Article 119 EEC), general

1 This paper is based on some chapters of the author’s as-yet unpublished Ph.D. dissertation. The author thanks Dr Jessika Eichler for her valuable comments and especially for the chance to contribute to this project. 2 The UN General Assembly condemned colonialism with a Resolution in 1960, following the adoption of the Convention on the Elimination of All Forms of Racial Discrimination; General Assembly of the UN Resolution 1514 (XV) on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960; General Assembly of the UN Resolution 1904 (XVIII), UN Declaration on the Elimination of All Forms of Racial Discrimination, 20 November 1963; UN International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, entered into force 4 January 1969. 3 This paper uses the two terms ‘anti-discrimination law’ and ‘non-discrimination law’ interchangeably. However, the paper ties in with the tradition underlying the term antidiscrimination law, while it also accepts the historical use of the term non-discrimination in the European context based on the tradition of EU non-discrimination law. 4 Brown v Board of Education, 347 US 483 (1954); Equal Pay Act of 1963; Civil Rights Act of 1964; Age Discrimination in Employment Act of 1967; Americans with Disabilities Act of 1990. 5 C McCrudden, in C McCrudden (ed), Anti-discrimination Law, 2nd edn (Aldershot, Burlington, VT: Ashgate/Dartmouth, 2004) xi, xii.

174  Ceren Kasım non-discrimination clause of Article 6a of the Amsterdam Treaty was followed in the 2000s by the EU Equality Directives.6 The protection provided by antidiscrimination law has spread over time since the first antidiscrimination norms were adopted. For instance, the understanding of the concept of discrimination starting from ‘direct discrimination’, reached a detailed understanding through ‘indirect discrimination’, also opening the doors to positive discrimination.7 Furthermore, the right to non-discrimination is to be found in core human rights documents, especially linked with the universality of the claim to equal consideration of the inherent, moral equality of value of every human being (eg Article 2(1) UDHR).8 Regarding labour and employment relations, the International Labour Organisation (ILO) Conventions, especially Nos 100 and 111 – one of the most ratified ILO Conventions – play a significant role.9 The right to non-discrimination manifests itself as a universal and fundamental right, from the first generation of human rights, by claims arising being indispensable (see also Article 4 CCPR).10 6 See Art 119 Treaty Establishing the European Economic Community (1957). Directive 75/117/ EEC; Directive 76/207/EEC; Directive 79/7/EEC. Art 6a Amsterdam Treaty (1997). Especially in the 2000s Equality Directives: Directive 2000/43/EC; Directive 2000/78/EC; Directive 2002/73/EC; Directive 2004/113/EC; Directive 2006/54/EC. 7 This paper understands direct discrimination as an unequal, different and less favourable treatment, that a person, or a group of people, experiences, has experienced or is likely to experience, than another person, or a group of people, on grounds of the legally protected, discriminatory characteristics. Direct discrimination explicitly suggests a prohibited criterion of differentiation. Indirect discrimination, on the other hand, occurs when what appear to be neutral regulations, criteria, specifications or procedures actually lead to the disadvantage of persons or groups of persons as the bearers of discriminatory characteristics. In the case of indirect discrimination, it is important to focus on the final result. Actions, regulations, etc, with the help of apparently neutral criteria, that formally do not make any distinctions, cause a discriminatory effect in practice in the outcome. 8 All core human rights documents recognise the human rights character of the right to non-discrimination. See Art 1 Charter of the United Nations (UN Charter), signed 26 June 1945, effective since 24 October 1945; Art 2 Universal Declaration of Human Rights (UDHR) ratified 10 December 1948; Art 2 International Covenant on Civil and Political Rights (ICCPR); Art 2 International Covenant on Economic, Social and Cultural Rights (ICESCR). See, in the European context, Art 14 European Convention on Human Rights Council of Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 November 1950, effective 3 September 1953; European Convention on Human Rights Protocol 12; Art E Revised European Social Charter. European Union Directive 2000/43/EC, Directive 2000/78/EC, Directive 2002/73/EC and Directive 2004/113/EC also state ‘The right to equality before the law and protection against discrimination for all persons constitutes a universal right …’. 9 See also: ILO Convention No 100, Equal Remuneration Convention, 1951, ratified by 173 out of 187 ILO Member States, and ILO Convention No 111 Discrimination (Employment and Occupation) Convention, 195, ratified by 175 out of 187 ILO Member States. Both Convention No 100 and Convention No 111 were declared as fundamental ILO Conventions (ILO Declaration on Fundamental Principles and Rights at Work). Also see ILO Declaration Concerning the Aims and Purposes of the International Labour Organization (Declaration of Philadelphia). 10 On the concept of generations of human rights, see PK Vasak, ‘A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’ The Unesco Courier (November 1977) 29ff. As General Comment on Art 4 ICCPR rightly puts: ‘Even though article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the

Building Bridges between Dismissal Protection and Non-discrimination Law  175 Unlike the right to non-discrimination, the right to dismissal protection in the international law context concerning European states can only be found in the Revised European Social Charter (RESC) (Part II, Article 24 RESC).11 However, the signatory states are not automatically bound by the regulation on dismissal protection (Part III, Article A RESC).12 Regarding labour and employment relations, detailed regulations about dismissal protection can be found in ILO Convention No 158 – one of the least ratified ILO conventions with no global consensus on it.13 In EU law, the Charter of Fundamental Rights of the European Union (CFR) recognises the right of every worker to protection against unjustified dismissal, but this fundamental right does not contain any obligation for the Member States in general (Article 30 CFR).14 The right to dismissal protection is also only to be found in the context of second-generation human rights, is codified in very few human rights documents, and demonstrates a weaker acceptance and protection compared to the right to non-discrimination. The idea of protecting workers from unfair dismissals developed especially after industrialisation in connection with labour relations on the European continent.15 Later on, one can speak of protection against dismissal according to today’s legal understanding, which not only aimed at predictability, but also dealt with the imbalance of power between parties to employment contracts.16

non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant’ (Art 8 General Comment No 29 States of Emergency (Art 4) GE.01-44470 (E) 190901 General Comment on Article 4 (adopted at the 1950th meeting, on 24 July 2001). 11 CoE, European Social Charter (revised) (ETS No 163), signed 3 May 1996, entered in force 1 July 1999. 12 RESC entitles parties to select articles by which they want to bind themselves (Part III, Art A RESC). 13 ILO C158 Termination of Employment Convention, 1982. So far, only 36 out of 187 states have ratified Convention No 158, and one state (Brazil) has already denounced it. www.ilo.org/dyn/ normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312303:NO 14 EU, Charter of Fundamental Rights of the European Union, created 2 October 200, ratified 7 December 2000. HD Jarass, Charta der Grundrechte der Europäischen Union unter Einbeziehung der sonstigen Grundrechtsregelungen des Primärrechts und der EMRK, 4th  edn (Munich, Beck, 2021) Art 30 paras 2, 3. As the Charter applies when EU countries adopt or apply a national law implementing an EU directive or when their authorities apply an EU regulation directly, the fundamental right of Art 30 CFR does not contain any obligation for the Member States in general. 15 C Kasım, Antidiskriminierungsrecht versus Kündigungsschutzrecht. Der Schutz vor der diskriminierenden Kündigung im deutsch-türkischen Rechtsvergleich (Dissertation, Georg-August-Universität Göttingen, 2021) 78; U Preis, in R Ascheid, U Preis and I. Schmidt, Kündigungsrecht: Großkommentar zum gesamten Recht der Beendigung von Arbeitsverhältnissen, 6th edn (Munich, Beck, 2021) 1 Teil A, para 1; I Göller, Die Entwicklung des Kündigungsschutzrechts in Deutschland (Dissertation, Albert-Ludwigs-Universität zu Freiburg i. Br., 1974) 14. 16 W Hug, Das Kündigungsrecht: Nach schweizerischem und unter Berücksichtigung des deutschen und österreichischen Arbeitsrechts: Samt einem allgemeinen Teil über die arbeitsrechtlichen Grundlagen, Band I, Die Probleme des Kündigungsrechts, Die arbeitsrechtlichen Grundlagen (Aarau, 1926) 60; Göller (n 15) 19; A Toews, Die Entwicklung des Kündigungsschutzes von den Anfängen bis zur Gegenwart (mit einer vergleichenden Darstellung) (Münster, 2004) 17, 18.

176  Ceren Kasım The protection provided by the law of dismissal has spread over time since the first norms were adopted, starting from notice periods and extending to dismissal bans.17 However, dismissal protection norms can also be very sensitive to economic and social changes in many domestic legislations.18 Antidiscrimination law and dismissal protection law found some common ground in the case of discriminatory dismissal in the beginning of the 2000s when Germany, a state with a strong tradition of unfair dismissal, had to adopt EU non-discrimination directives due to EU membership.19 Meanwhile, in Turkey, the legislator was adopting EU non-discrimination directives to harmonise Turkish law with EU law within the EU accession process and to align Turkish labour law with international law as well as introducing dismissal protection law by ratifying ILO Convention No 158.20 In the case of a discriminatory dismissal, these two fields of law intersect; which one of them – or both – should regulate this conflict and to what extent became a persisting theme in legal scholarship for a while both in Germany and in Turkey.21 Indeed, employees from socially disadvantaged groups affected by discriminatory dismissals must not be deprived of the protection offered either by antidiscrimination law or by the law of dismissal. While both antidiscrimination 17 eg Art 84, I, 1 Betribesrätegestz (BRG) from 4 February 1920 excludes grounds relating to sex, political, military, denominational or trade union activity, affiliation or not affiliation to a political, confessional or professional association or military associations from dismissal but the law made the right to sue against a dismissal dependent on the action of the works council. 18 T Treu, European Labor Policies Suggestions for Change: Universalities and Peculiarities (2nd JILPT Tokyo Comparative Labor Policy Seminar 2018, 26–28 March 2018, Opening Address) 4; G Betcherman, Labor Market Institutions, A Review of the Literature (The World Bank Development Economics Office of the Senior Vice President and Chief Economist, November, 2012) 19. As Treu also pointed out, especially in times of crisis, legal provisions on dismissal protection can be seen as a burden on the economy. The longstanding discussions about the severance payment in the Turkish law can also be counted as an example. 19 The German Dismissal Protection Act (Kündigungsschutzgesetz) dates back to 1951. 20 Turkey signed ILO Convention No 158 in 1995. In 2002, for the first time in Turkey’s legal history, the Turkish legislature drafted a protection against unfair dismissal act to bring the country’s legal situation into conformity with the provisions of the ILO Convention No 158. The regulation is an almost word-for-word translation of ILO Convention No 158. A year later, in 2003, came the first prohibition of discrimination in Turkish labour law. The background to this was primarily the alignment of Turkish labour law with the UN Women’s Rights Convention (CEDAW), the implementation of the ILO Convention with regard to protection against discrimination (especially ILO Convention No 100), but also the harmonisation of the Turkish legal situation with the non-discrimination directives of the EU. 21 eg C Becker, Vom Gleichheitssatz zum arbeitsrechtlichen Diskriminierungsverbot: Eine rechtsvergleichende Betrachtung der europäischen, italienischen und deutschen Rechtsentwicklung unter besonderer Berücksichtigung älterer Arbeitnehmer in befristeten Arbeitsverhältnissen (Berlin, 2015); J Wenckebach, Antidiskriminierungsrechtliche Aspekte des Kündigungsschutzes in Deutschland und England (Dissertation Bremen, Baden-Baden, 2012); A Lingscheid, Antidiskriminierung im Arbeitsrecht, -Neue Entwicklungen im Gemeinschaftsrecht auf Grund der Richtlinien 2000/43/ EG und 2000/78/EG und ihre Einfügung in das deutsche Gleichbehandlungsrecht (Berlin, 2004); N Aktay, İşe İade Davası Sonrası İşçinin İşverene İşe Davet Edilmesine Rağmen İşe Başlamamasının Sonuçlarına İlişkin Yargıtay Kararı İncelemesi (Sicil Eylül, 2006) Yıl: 1, Sayı: 3, 103ff; K Bakırcı, İş Güvencesi Kapsamındaki İşçilerin Doğrudan Tazminat Talep Hakları ve Kötüniyet veya Sendikal Tazminat ile Ayrımcılık Tazminatı İlişkisi (Sicil Haziran, 2006) Yıl: 1, Sayı: 2, 114ff.

Building Bridges between Dismissal Protection and Non-discrimination Law  177 law and the law of dismissal are primarily concerned with socially existing power imbalances, the truth is that their historical roots, justifications and objectives differ significantly. This chapter also aims to shed light on the underlying theoretical rationales and aims of antidiscrimination and dismissal protection law in the context of labour law, considering the principles of equality in relation to the social groups. The chapter begins with reflections on antidiscrimination law, starting from processed-based approaches. Then, assessing legal chances for social groups emerging from result-based approaches, it continues with critical remarks to equality of opportunities, finally closing the discussion from the perspective of different identities and social groups. The second part addresses dismissal protection law as a tool of social justice. To this end, the different power positions of the parties to the employment contract and the role of the law of dismissal in balancing power inbalance are examined, and the protection of the dignity and livelihood of the employee through dismissal protection are then addressed. Furthermore, freedom of occupation is considered with respect to the maintenance of the existing employment relationship as a goal of dismissal protection law. This is followed by a discussion of the welfare state and its role in the employment relationship. As a conclusion, the chapter will focus on the essential differences between these two fields of law – antidiscrimination law and dismissal protection law. 1.  ANTIDISCRIMINATION LAW AND SOCIETAL TRANSFORMATION

Antidiscrimination law is dedicated to the protection of people against discrimination in the relationship between citizens and the state or between citizens themselves. It focuses on discrimination that occurs on the basis of legally prohibited characteristics, eg race, sex, religion, sexual orientiation, with reference to prohibitions of discrimination. In this context, this chapter defines discrimination as a creation, reasoning and justification of a socially undesirable distinction, exclusion, restriction, preference, a general unequal treatment based on discriminatory characteristics, with the aim or with the consequence of social disadvantage.22 The selection of discriminatory grounds that find a place in the legal texts is based on structural social disadvantages that have existed over many years.23 However, which discriminatory categories are protected in the legal texts, and which are not, is ultimately a political decision made by the legislator on behalf of society, which is determined above all by the historical, cultural and social context. The question, on the other hand, why people should be protected against discrimination and what should be the goal of antidiscrimination law,



22 Kasım

(n 15) § 4, F.

23 U Lembke, ‘Europäisches Antidiskriminierungsrecht in Deutschland’ [2016] APuZ 9/2016, 11, 12.

178  Ceren Kasım is a persistent theme. Depending on the philosophical or political standpoint, there are different perspectives on equality and the injustice that discrimination causes in society, and, truly, there is generally seen to be a linkage between different perspectives to antidiscrimination law24 – following one approach can make a huge difference to the other. This section discusses different approaches that justify antidiscrimination law especially considering the point of view of social groups. 1.1.  Process-Based Approaches as a Starting Point Equality is above all a social, political, highly complex concept. But, at least since the French Revolution, it has served as one of the leading ideals of political thought in the Western world.25 By the sole fact of being human, all human beings enjoy equality of value, as every member of human society is born with an equal inherent moral value – dignity.26 At the same time, however, equality is currently the most controversial of the great social ideals, as the content of the concept of equality in each individual case is an evaluative decision influenced by stigma, prejudices, historically grown injustice in the society and a felt reality from the victim`s perpective.27 In the context of formal equality:28 two persons who are equal in at least one normatively relevant aspect are expected to be treated equally in this very regard.29 Otherwise, one person experiences unfair treatment.30 Based on this formal formula of equality, antidiscrimination law selects certain human characteristics or actions and establishes an intolerable inequality with respect to those qualities or actions.31 However, in the sense of procedural justice, the focus is on consistent action without explicit reference to the prohibited characteristics

24 E Relaño Pastor, ‘Religious Discrimination in the Workplace: Achibata and Bougnaoui’ in U Belavusau and K Henrard, EU Anti-discrimination Law Beyond Gender (Oxford, Hart, 2019) 183, 188; D Schiek, Differenzierte Gerechtigkeit, Diskriminierungsschutz und Vertragsrecht, 1st edn (Baden-Baden, 2000) 48. 25 S Gosepath, ‘Equality’ in EN Zalta (ed), Stanford Encyclopedia of Philosophy (Stanford, CA, Spring 2011) 1, 1; B Dubré, 50 Shlüsselideen Politik (Berlin, Heildelberg, 2013) 12. 26 passim DG Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 645. 27 S Gosepath, ‘Glechheit/Ungleichheit’ in HJ Sandkühler (Hrsg), Enzyklopädie Philosophie, Bd 1 (Hamburg, 1999); Gosepath (n 25) 1; A Lingscheid, Antidiskriminierung im Arbeitsrecht, -Neue Entwicklungen im Gemeinschaftsrecht auf Grund der Richtlinien 2000/43/EG und 2000/78/EG und ihre Einfügung in das deutsche Gleichbehandlungsrecht- (Berlin, 2004) 7. ‘Eine wertende Entscheidung’ (evaluative decision), Lingscheid (n 27) 7. 28 Gosepath (n 25) 2; S Günther, Arbeitsrechtlicher Antidiskriminierungsschutz und Diversity Management: AGG – Pflicht und Chance zugleich (Frankfurt am Main, 2013) 36. 29 Gosepath (n 25) 7. 30 Gosepath (n 25). 31 D Schiek, in D Schiek (Hrsg), Allgemeines Gleichbehandlungsgesetz (AGG), Ein Kommentar aus europäischer Perspektive, 1st edn (München, 2007) Einl. para 51.

Building Bridges between Dismissal Protection and Non-discrimination Law  179 of discrimination.32 The aim of antidiscrimination law is in this sense to eliminate illegitimate discriminatory considerations from the decision-making process such as recruitment or dismissal.33 This approach to antidiscrimination law may have emancipatory consequences: since everyone belongs to one category, everyone has to be treated equally, as everyone is entitled to already existing legal positions. A formal conception of antidiscrimination law also seeks to safeguard justice for the individual and is oriented in this context on an individualistic basis.34 So, even in the case of perceiving existing injustice in a society, the efforts to redress it have to be weighed and balanced against the competing interests of the social groups and to be limited.35 Following on from this, prohibitions against discrimination are often formulated with universal and symmetric concepts36 (eg ‘to all indivuals …, such as … sex  …’, Article 2 CCPR) that protect antinomically defined social groups equally, eg both women and men. This prohibition of discrimination gives women the right to claim existing legal positions that were previously denied them. From this point on, this conception of antidiscrimination law could also mean assimilation and adjustment as a prerequisite for the right to equal treatment. Since equal treatment is only possible for equals, the precious differences between different social groups that define their group identity must either be overlooked or adjusted to the others. In that sense, this version of antidiscrimination law contains therein an anti-egalitarian orientation.37 In a society where many other social functions operate in a discriminatory way, equality as a process also fails to achieve material equality.38 Furthermore, the formal conception of antidiscrimination law does not engage with the question of how these social inequalities emerged in the first place. Differences between groups are not seen as the result of past discrimination, but as real, factual differences between groups competing for social benefits.39 According to this, the main aim of antidiscrimination law is to prevent future wrongdoing, rather than to remedy existing manifestations of past wrongdoing.40 In this way, it proves, however, not to be suitable for understanding the historical injustice the discriminated social groups have been experiencing.

32 ibid para 53; M Mahlmann, in B Rudolf and M Mahlmann, Gleichbehandlungsrecht (Baden-Baden, 2007) § 1, para 22, n 43; KW Crenshaw, ‘Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law’ (1988) 101(7) Harvard Law Review 1331, 1342. 33 P Brest, ‘The Supreme Court 1975 Term: Foreword: In Defense of the Antidiscrimination Principle’ (1976) 90 Harvard Law Review 1, 6, 11; McCrudden (n 5) xvii; Crenshaw (n 32) 1336, 1342. 34 Brest (n 33) 42ff; O Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5(2) Philosophy & Public Affairs 107, 108; McCrudden (n 5) xvii; Schiek (n 31) Einl. para 54. 35 Crenshaw (n 32) 1342. 36 Fiss (n 32) 129ff, 135. 37 Schiek (n 31) Einl. para 54. 38 Crenshaw (n 32) 1345. 39 ibid 1342. 40 ibid.

180  Ceren Kasım 1.2.  Equality as a Result as a Response to Procedural Equality: Legal Chances of Social Groups? Formal equality is often contrasted with material equality, and the achievement of equality as a process as a goal of antidiscrimination law is confronted with the achievement of equality as a result.41 For an antidiscrimination law based on material equality, the impact of the precepts of law in social reality and the factual effectiveness of measures are of importance.42 This view looks at the real consequences of antidiscrimination norms for disadvantaged groups.43 According to this view, the concept of discrimination has a clear connection with the recognition of social groups and is more concerned with these groups rather than only with individuals.44 Which social groups are discriminated against is meaningful, because discrimination in social reality is accompanied by specific disadvantages for such groups.45 Moreover, the infringement of rights is not to be seen as an act limited against individuals, but rather as a ‘societal policy’ against a whole group.46 The main objective of antidiscrimination law is then to eliminate existing manifestations of past injustice against members of disadvantaged social groups.47 Unlike process-based approaches to antidiscrimination law, antidiscrimination is often formulated using asymmetric terms (eg ‘all persons with disabilities without discrimination … on the basis of disability’, Article 4 CRPD).48 The aim of antidiscrimination law is to eliminate the material conditions of oppression of social groups in order to improve the social position of the discriminated groups, such as Black women, without establishing symmetric protection for the favoured group, eg for White men in a racist, patriarchal, misogynist society.49 An asymmetric concept makes it possible to give preference to those who are disadvantaged by discrimination (positive measures).50 1.3.  Equality of Opportunities: Critical Remarks A social egalitarian perspective to antidiscrimination law examines the causes and consequences of discrimination from a perspective of achieving justice

41 Schiek (n 31) Einl. para 53. 42 ibid paras 53, 54. 43 Crenshaw (n 32) 1341. 44 McCrudden (n 5) xvii; Fiss (n 32). 45 Schiek (n 31) Einl. para 54. 46 Crenshaw (n 32) 1342. 47 ibid. 48 United Nations Convention on the Rights of Persons with Disabilities, signed 30 March 2007, effective 3 May 2008. 49 Crenshaw (n 32) 1341; McCrudden (n 5) xvii; Fiss (n 32) 161. 50 Schiek (n 31) Einl. para 54.

Building Bridges between Dismissal Protection and Non-discrimination Law  181 through equal opportunities.51 According to this perspective, when equal opportunities prevail, the assignment of individuals to places in the social hierarchy is determined by a kind of competitive process; all members of society are entitled to compete on equal terms.52 The aim is to balance the results of the competitive process, provided that they are consequences of the causes beyond the control of the person; but since each human is responsible for their own actions, differential results are allowed, as far as they result from self-determined choice or human ambition.53 This analysis of antidiscrimination law is geared towards social groups and assesses discrimination more structurally than individually.54 Hence, based on this foundation, a discriminator is not considered an evil-doer and, according to this line of reasoning, it is not the intention of the discriminator that counts, but their socially collective responsibility for social injustices.55 Accordingly, these approaches are not primarily about individual harm, but rather about the relative social advantage or disadvantage of certain social groups.56 As a result, the measures of socially egalitarian protection against discrimination are distributive, but also open to the members of the non-discriminated groups.57 Regarding employment relationships, antidiscrimination law serves to give employers, as holders of social power, the stimulus not to base their decisions regarding the allocation of advantageous positions on certain characteristics of the persons concerned.58 Consequently, antidiscrimination law not only includes claims to existing rights, but also aims to influence the allocation of new legal rights or interests.59 In that regard, it may contribute to the realisation of the social inclusion of social groups.60 Nevertheless, protection against discrimination as a safeguard of equal opportunities could lead to uniformity of individuals and to assimilation of social groups. In this context, protection against discrimination, marginalisation and dominance of various oppressed groups in society may mean assimilation by fitting into a pre-existing (more often problematic) norm, and an erasure of socially subordinated identities.61 However, it is not (or not always) necessary, or it should not be necessary, to abandon existing differences between

51 Mahlmann (n 32) § 1 para 25. 52 R Arneson, ‘Equality of Opportunity’ in EN Zalta (ed), Stanford Encyclopedia of Philosophy (Stanford, CA, 2015) 1, 1. 53 Gosepath (n 25) 33. See eg DA Strauss, ‘The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards’ (1991) 79 Georgetown Law Journal 1619ff. 54 J Gardner, ‘Liberals and Unlawful Discrimination’ (1989) 9 Oxford Journal of Legal Studies 1, 5. 55 ibid 5. 56 ibid 4. 57 Schiek (n 31) Einl. 39. 58 R Krause, Arbeitsrecht, 3rd ed (Baden-Baden, 2015) 105, para 20; Strauss (n 53) 1620. 59 Krause (n 58) 105, para 20. 60 ibid. 61 Gosepath (n 25) 23; C Heyes, ‘Identity Politics’ in EN Zalta (ed), Stanford Encyclopedia of Philosophy (Stanford, CA, 2018) 1, 10.

182  Ceren Kasım groups, eg women do not need to adapt to inherently problematic ‘male norms’. Furthermore, the individual must not be deprived of the possibility of deciding for themselves whether to acccept or to claim the characteristics associated with other groups and to base their own values on the values of others, eg women/ men can expand their characteristics and values considered masculine/feminine. Moreover, considering every human being as a bearer of dignity which refers to a type of value that does not depend on other qualifications such as performance or achievements, or being useful, the competitive perspective that sees the assignment of individuals to places in the social hierarchy to be determined by a kind of competitive process is questionable.62 The assumption is: since equality of opportunity is the rule, the market operates fairly and impartially, and society no longer discriminates against certain groups, current injustices cannot be the result of discriminatory practices.63 Yet, it is considered that the position of some particular social groups at the bottom of society should basically reflect the relative inferiority of these social groups to the dominant groups.64 This kind of rationalisation strengthens the belief of the dominant groups (White, male, middle-class, non-disabled and heterosexual) in the system and in the status quo and in turn intensifies their belief that the others (non-White, non-male, nonbourgeois, disabled and non-heterosexual) are indeed inferior.65 1.4.  Equal Value of the Different Identities and Social Groups An identity-political approach to antidiscrimination law, on the contrary, sees justice primarily in the cultural and symbolic recognition of the intrinsically valuable identities of social groups; being a member is linked to historical, social, culturally emerging values, traditions and practices; and the acceptance of social group identities on the basis of equality.66 Antidiscrimination law is justified because it recognises and accepts differences between social groups, protects group identities, and, by means of these, reinforces people’s authentic self-expression.67 According to the group-sensitive perspective of antidiscrimination law, the neutral citizen of liberal theory is, strictly speaking, a carrier with a White, male, bourgeois, non-disabled and heterosexually coded identity.68 Other individuals, however, not White, not male, not bourgeois, disabled and not heterosexual, experience oppression because of their affiliation to a particular social group.69

62 See

also Réaume (n 26) 678, 679. (n 32) 1346, 1347. 64 ibid 1380. 65 ibid 1380. 66 McCrudden (n 5) xxiii, xxv; Mahlmann (n 32) § 1 para 29. 67 eg Crenshaw (n 32). 68 Heyes (n 61) 9. 69 ibid. 63 Crenshaw

Building Bridges between Dismissal Protection and Non-discrimination Law  183 An oppressed social group in society is a collective whose members have relatively low mobility in or out of the collective, who normally experience their involuntary membership, generally identified by others as members of an oppressed group, and their opportunities deeply shaped by the relationship of their group to other groups through privileges and oppression.70 While members of the dominant groups (eg men/Whites) are associated with positive traits, the others (eg women/Blacks) are associated with negative ones.71 Through these characterisations, stereotypes and beliefs regarding the oppressed, the rationalisation and legitimisation of oppression occurs in society and is presented as natural.72 These stereotypes also serve a hegemonic function and are part of the system’s ideology of legitimacy.73 In this sense, oppression is the systematic restriction of possibilities and self-determination on the basis of such membership and collective identity.74 A group-sensitive analysis of antidiscrimination law is oriented to the position of those affected by discrimination. According to this view, the subject of discussion should be what the oppressed group believes about itself in terms of self-identification, rather than what is believed about oppressed groups.75 As categories such as race and gender are not natural, but socially created, how social inequalities have come about and which social groups are discriminated against is significant, especially because the differences between the groups, the stereotypes and prejudices are basically consequences of previous discriminations.76 Moreover, the unique experiences of the intersectionally discriminated members of the groups are significant, demanding a multipleaxis analysis of antidiscrimination law that addresses the needs and problems of those who are most disadvantaged through the multidimensionalty of their expiriences.77 In this context, it is about recognizing the needs of the members of the oppressed groups as a group. Collective group identities, and experiences subjected to intersectional discrimination, are welcomed, maintained and promoted with the aim of creating a new status quo. The aim of antidiscrimination law is also to achieve a transition in one’s sense of self and community by raising awareness against a sense of inferiority imposed by dominant groups.78

70 ibid. 71 Crenshaw (n 32) 1372. 72 ibid 1370, 1371. 73 ibid 1371. 74 Heyes (n 61) 10. 75 Crenshaw (n 32) 1358. 76 ibid 1373; Lembke (n 23) 12; A Scherr, ‘Diskriminierung/Antidiskriminierung – Begriffe und Grundlagen’ [2016] APuZ 9/2016 3, 7. 77 K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) no 1 University of Chicago Legal Forum article 8, 139, 143, 149, 153, 166, 167. 78 Heyes (n 61) 2.

184  Ceren Kasım Eliminating social disadvantage requires more than protection against inequality through regulatory measures.79 The idea of the ‘neutrality of law’ and a ‘neutral society’, which, strictly speaking, is built on the oppression of certain social groups, cannot overcome social oppression, and therefore discrimination, because a ‘neutrality of law’ and a ‘neutral society’ do not exist.80 The aim of antidiscrimination law should be complete societal transformation. This goal, according to this perspective of antidiscrimination law, connects to the perception of the past. Without recognising and eliminating today’s manifestations of historically grown injustice it is not possible to prevent future undesirable developments. In this sense, antidiscrimination law should deal with the present based on the past and introduce itself as future-oriented. However, the following problems can emerge from this version of antidiscrimination law. First, to some extent, a group’s identity may require the elision of individual differences, which in turn can be points of contact for social discrimination.81 Second, there is a danger of essentialising group membership. Related to this, individuals may perceive such a type of group identity as a form of forced identity. This would force the individual, instead of liberating them, into their group identity.82 Therefore, care must always be taken to avoid the assimilation and uniformity of individuals and the essentialisation of group membership. 2.  DISMISSAL PROTECTION LAW AS A TOOL OF SOCIAL JUSTICE

The law of dismissal protects, in general, employees from dismissal.83 According to German and Turkish law, the employment contract – as an indefinite continuing obligation – does not allow for automatic termination but is subject to the facts of termination.84 Termination is still a unilateral way for the parties to free themselves from employment relationships of indefinite period.85 However, for various reasons, an employer’s capacity to terminate a long-term employment

79 Schiek (n 31) Einl. 39. 80 Crenshaw (n 32) 1346. 81 Schiek (n 31) Einl. para 47; Mahlmann (n 32) § 1 para 29. 82 See A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge University Press, 2009). 83 Toews (n 16) 6. 84 A Junker, Grundkurs Arbeitsrecht, 19th edn (München, 2020) 178, para 320; Krause (n 58) 259, para 1; E Ziegler, Das Verbot von Kündigungsgründen: Eine Möglichkeit sachlichen Kündigungsschutz im Arbeitsrecht (Bern, Stuttgart, 1986) 12. 85 Ziegler (n 84) 12. In addition to dismissal, an employment contract for an indefinite period can end via termination agreement between employee and employer, resignation of employee, wrongful dismissal, contestation, death of employee and judicial dissolution according to German labour law. According to Turkish labour law, in addition to dismissal, an employment contract for an indefinite period can end via termination agreement between employee and employer, resignation of employee, death of employee.

Building Bridges between Dismissal Protection and Non-discrimination Law  185 contract can be impeded and the legal validity of an employer’s dismissal can be prevented by various means. Today’s protection against dismissal law is to be seen as a compromise between the social partners as a critical reflection of the liberal laissez-faire idea of employment relationships that had prevailed for a long time and the associated unlimited freedom of contract for the parties to the employment contract. It is one of the instruments for achieving material equality in the world of work and serves to protect the economic, social and cultural rights of employees.86 The question why employees should be protected from dismissal is a persistent theme in labour law scholarship. In the United States the most important jurisdiction in the history of antidiscrimination law, contract-at-will employment contracts still prevail, whereas in Germany, one of the pioneers of law of dismissal, and in Turkey dismissal protection is standard. An examination of the justifying standpoints of dismissal law requires consideration of the perspectives of employees, employers and job-seekers and their opposing positions: for a while an employee has the right to dismisssal protection, whereas the employer has the right to terminate an employment contract. This section discusses different approaches that justify dismissal protection law based on the point of view of the employees considering the uniqueness of this field of law. 2.1.  Balancing the Different Power Positions in Employment Relations Protection against unfair dismissal has right from the outset dealt with the different power positions of the parties to the employment contract. In this sense, the first restrictions on termination were intended to give workers the possibility to prepare for a pending termination of their employment contract with the justification of the weak economic position of workers in the labour market and their dependence on the job offered by the employer.87 The law of dismissal in its present form, with all its instruments regarding notice periods, severance pay and the protection of the continuance of employment, is based on a questioning of the purely liberal ideal of the symmetry of the rights and duties of employee and employer with regard to the termination of the employment contract, grounded in a prevailing power imbalance between the parties to the employment contract.88 As the employer side is the economically and (often)

86 Kasım (n 15) 87. 87 ibid § 5, A, I. 88 Examples: Notice periods: § 622 German Civil Code, Art 17 Turkish Labour Act No 4857. Severance payment: Art 14 Turkish Labour Act No 1475. Protection of the continuance of employment: German Protection Against Unfair Dismissal Act; Arts 17–21 Turkish Labour Act No 4857. German Civil Code (Bürgerliches Gesetzbuch) from 18 August 1896, last Amendment 1 October 2013; German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz) from 10 August 1951, last Amendment 14 June 2021; Turkish Labour Act No 4857 from 22 May 2003; former Turkish Labour Act No 1475 from 25 August 1971 only Art 14 in force.

186  Ceren Kasım politically stronger party of the labour relations, and as a job is in most cases the only or main material basis of existence for many workers, the assertiveness, and the political and economic influence of the parties to the employment contract vary considerably. The social and economic dependence of the employee is even more visible in the case of dismissal with its attendant social and economic insecurities.89 The protection against dismissal primarily serves to balance these differences of social and economic power between the parties to employment contracts and aims to neutralise the different positions of strength of employers and employees in the labour market, which can preserve the sense of social justice. The intention is to strengthen the power position of the employee in the employment relationship by setting standards for termination. Linked to this, the protection against dismissal has impacts not only with regard to the termination of the employment contract, but also with regard to the labour-law relations prior to termination. For the duration of the employment contract, the legal protection from dismissal means above all stable labour relations and security for employees. Protection against dismissal means less flexible labour markets and consequently requires more investment in terms of ‘human capital’ by employers.90 Moreover, the law of dismissal helps to ensure that the employee’s labour is not to be seen as simply disposable, but rather must be valued and appreciated. A labour market without security of the continuance of employment and unrestricted competition between job-owners and job-seekers means above all substitutability at any time, which results in a competition of performance and underselling on the part of the workers.91 Dismissal protection law counteracts this and helps to eliminate employees’ self-alienation from the work they do.92 In this way, it positively affects social cohesion and protects against the commodification of human labour.93 At the same time, protection against dismissal also helps to preserve the knowledge and skills acquired by employees for the benefit of both the employee and the employer.94 The employee is educated and increases the value of their

89 K Adomeit, Kündigung und Kündigungsschutz im Arbeitsverhältnis: die Grundzüge unter Berücksichtigung der Rechtsprechung des Bundesarbeitsgerichts; mit einem Anhang: die gesetzlichen Kündigungsvorschriften (Düsseldorf, 1962) 15. 90 A Höland, ‘Muss der Kündigungsschutz reformiert werden? Kündigungspraxis und Kündigungsschutz im deutschen Arbeitsrecht – Überlegungen zur Kritik am Kündigungsschutz’ in M Blank (Hrsg), Muss der Kündigungsschutz reformiert werden? (Frankfurt am Main, 2003) 23, 31, 38 n 48; U Walwei, ‘Die Beendigung von Arbeitsverhältnissen: Rechtlicher Reformbedarf und Kompensationsmöglichkeiten’ [2000] MittAB 1/2000, 101, 104; EJ Jahn, Zur ökonomischen Theorie des Kündigungsschutzes: Volatilität der arbeitsnachfrage und duale Arbeitsmärkte (Berlin, 2002) 92, 210, 115; H Wolter, ‘Reformbedarf beim Kündigungsrecht aus Arbeitnehmersicht Praxiserfahrungen und Schlussfolgerungen’ [2003] NZA 1068, 1070. 91 R Krause, in G Hoyningen-Huene, R Linck and R Krause, Kündigungsschutzgesetz, Kommentar, 15th edn (München 2013) § 1 para 9. 92 W Herschel, ‘Kündigungsschutz und Wettbewerb’ [1975] RdA 28, 31. 93 Krause (n 91) § 1 para 9; Herschel (n 92) 31. 94 M Coen, Das Recht auf Arbeit und der Bestandsschutz des gekündigten Arbeitsverhältnisses: 2012 materiellrechtliche und vollstreckungsrechtliche Probleme des Beschäftigungsrechts (Köln,

Building Bridges between Dismissal Protection and Non-discrimination Law  187 work through training, by gathering experience and being active.95 In this respect, the loss of a job and associated unemployment can lead to serious damage from loss of acquired knowledge and skills through lack of use, threats to professional reputation, and connection to working life, and also poses the risk that the labour force will become obsolete.96 From this point of view, the topic of post-termination periods is of interest. Since the number of job-seekers is larger than the number of vacant jobs in many sectors, the chances of the employer filling the job of a terminated employee are high.97 At the same time, the problems arising after the termination of employment is often not easy for an employee to cope with. In the event of dismissal the employee most likely loses their only or main material livelihood. They can fight to get their job back, but to do so, they may have to file a lawsuit for protection against dismissal.98 However, the probability of finding a new job immediately is in many cases not as high as the probability that the employer will fill the vacant job immediately. In addition, there is always the risk of short-term or long-term unemployment. In a similar vein, the job is not only a means for the employee to earn a living, but also a social environment for self-realisation.99 As work plays a major role as a socialisation factor in society, the loss of the job can also be accompanied by mental health risks.100 All this may contribute to the social stigmatisation of the employee. 2.2.  Protection of Employee’s Dignity and Livelihood in the Context of Dismissal Protection The right of the employee to protection against dismissal is primarily connected with the human dignity of the employee because it is necessary to secure the economic existence of an individual and to guarantee the freedom of the individual to have a say on the constituent components of human dignity.101 Protection against dismissal enables humane working conditions in society, 1979) 62; E Dorndorf, ‘Vertragsdurchsetzung als Funktion des Kündigungsschutzes’ [1989] ZfA 345, 356; Krause (n 91) § 1 para 10; P Schwerdtner, Arbeitsrecht I (München, 1976) 115. 95 Dorndorf (n 94) 356. 96 Coen (n 94) 62, 72; Dorndorf (n 94) 356. 97 Coen (n 94) 10, 11. 98 Coen (n 94) 11. 99 Krause (n 91) § 1 para 9. 100 Coen (n 94) 45, 46, 47; D Reuter, ‘Das Recht auf Arbeit – ein Prinzip des Arbeitsrechts?’ (1978) 6 RdA 344, 346. 101 O Deinert, in W Däubler, O Deinert and B Zwanziger (Hrsg), Kündigungsschutzrecht: KSchR; Kündigungen und andere Formen der Beendigung des Arbeitsverhältnisses, 10th edn (Frankfurt am Main, 2017) Einl. 45 para 11; R-D Falkenberg, ‘“Unsinn” des allgemeinen Kündigungsschutzes in Deutschland – Erwiderung auf Rühle’ (1991) 48 DB 2486, 2486); HG Rühle, ‘Sinn und Unsinn des allgemeinen Kündigungsschutzes in Deutschland – Plädoyer für eine Neuordnung des Kündigungsschutzrechts’ (1991) DB 1378, 1378; K Dirschmied, ‘Das soziale Grundrecht “Recht auf Arbeit”’ [September 1972] AuR 257, 267.

188  Ceren Kasım which should, in turn, ensure a dignified existence.102 Relatedly, the protection of the material and/or social livelihood of the employee is, according to many, the principal reason for protection against dismissal.103 Labour power is the only productive force in the possession of the worker, the main possibility for participation in social life, and offers a culturally creative role.104 An employee participates in the economic cycle and secures their material existence by employment at a workplace, where they can use their labour power.105 According to another line of argument, work is not only the material but also the immaterial basis of the employee’s existence.106 The employment relationship shapes the life of the employee; in the work that the employee does, the employee realises themself and in this way the employment relationship defines their personality.107 For a large part of the population, labour is the only way to participate in culturally creative tasks essential to humanity.108 The social recognition of the employee and also the respect of others have essentially to do with the work that the employee does.109 A dismissal affects the consciousness of being socially recognised and the feeling of doing something valuable.110 2.3.  Freedom of Occupation and Maintenance of the Existing Employment Relationship The law of dismissal protection is also linked to the freedom of occupation and the right to engage in work. According to this viewpoint, freedom of occupation includes not only the decision for or against a certain occupation, but also the maintenance and abandonment of such occupation.111 The distinctive characteristic of dependent employment compared to self-employment is primarily that, here, unlike in the area of self-employment, it is not a question of who can exercise the profession alongside others at a workplace, but who obtains and occupies the particular workplace in place of another, exercises their profession

102 W Däubler, in Däubler et al (n 101) Einl. 177 para 536. 103 eg S Carolsfeld, Arbeitsrecht, 2nd edn (Göttingen, 1954) § 1 C 20; Coen (n 94) 48; H Hubmann, Das Persönlichkeitsrecht, 2nd edn (Köln, 1967) 145; W Herschel, ‘Entwicklungstendenzen des Arbeitsrechts’ [1956] RdA 161, 165; Rühle (n 101) 1378ff; N Achterberg, ‘Das nachvertragliche Wettbewerbsverbot in verfassungsrechtlicher Sicht’ [1975] JZ 713, 720); A Nikisch, Arbeitsrecht, I. Band, 3rd edn (Tübingen, 1961) § 38 513; Adomeit (n 89) 48. 104 Coen (n 94) 7, 59, 60, 67; G Olbersdorf, ‘Sozialer Rechtsstaat und Arbeitsrecht’ [1955] AuR 129, 137; Carolsfeld (n 103) § 1 C 20; Hubmann (n 103) 185; D Leipold, ‘Einstellungsfragebögen und das Recht auf Arbeit’ [1971] AuR 161, 165. 105 Coen (n 94) 49, 64, 67; Olbersdorf (n 104) 137); Herschel (n 103) 165. 106 Achterberg (n 103) 720; Hubmann (n 104) 185; Nikisch (n 103) § 38 513. 107 W Herschel, ‘Kündigungsschutz und Wettbewerb’ [1975] RdA 28, 31; Coen (n 94) 45, 46, 47; Hubmann (n 104) 185. 108 Hubmann (n 104) 185. 109 Coen (n 94) 45, 46, 47. 110 Adomeit (n 89) 48. 111 BVerfGE 84, 133, 146; BVerfGE 85, 360, 373.

Building Bridges between Dismissal Protection and Non-discrimination Law  189 there and retains it, and where the idea of competition also plays a significant role.112 In addition, the workplace or work for the dependent employee manifests itself as the basis of social and economic existence.113 As a result, the state has the obligation not only to adopt protective measures with regard to the mobility of workers across workplaces, jobs, or positions, but also to take measures that protect the maintenance of the existing employment relationship.114 The employer must first autonomously create a workplace and enter into an employment relationship in order for the employee to be able to exercise their fundamental right to free choice of employment.115 Accordingly, if the employer has created an economic and social basis through their private autonomous decision, this also creates occupational freedom which, from the perspective of fundamental rights, is no longer subject to their arbitrary disposal.116 2.4.  The Welfare State and its Role in Employment Contract Relations The right of the employee to protection against dismissal is furthermore linked to the ‘welfare state principle’. This demands the protection of the weaker party; it requires the state to mitigate the unequal positions of citizens. Thus, it gives the social state the task of granting, maintaining and securing the balance in the labour market.117 A voluntary exchange of goods, for instance, is only possible if the parties have (almost) the same amount of power.118 It is the obligation of the welfare state to protect individuals by removing obstacles that prevent them from exercising their fundamental rights and freedoms.119 It is the state that preserves social justice and social balance by protecting the weak against the strong.120 The social state has the task of intervening in the employment contract relationship if there is an asymmetry of power between the parties to the employment contract and so it has the duty to protect employees as weaker contractual partners in the employment contract against the employer’s freedom

112 BAGE 44, 141 = AP Nr 1 zu § 1 TVG Tarifverträge Druckindustrie. R Waltermann, ‘Freiheit der Arbeitsplatzwahl (Art 12 Abs 1 GG) – Grundrecht der Arbeitnehmer’ [1989] DVBl 699, 703. 113 Waltermann (n 112) 702; Krause (n 91) § 1 para 13. 114 BVerfGE 84, 133 (146); BVerfGE 85, 360 373. H Oetker, Der arbeitsrechtliche Bestandsschutz unter dem Firmament der Grundrechtsordnung: Einblicke in das arbeitsrechtliche Nervenzentrum (Stuttgart, 1996) 27; Waltermann (n 112) 700. 115 Krause (n 91) § 1 para 13. 116 ibid. 117 BVerfGE 21, 245, 251. Deinert (n 101) Einl. 45 para 11; B Rüthers, ‘Vom Sinn und Unsinn des geltenden Kündigungsschutzrechts’ [2002] NJW 1601, 1601ff; D Reuter, ‘Unternehmerische Freiheit und betriebsbedingte Kündigung’ [2004] 3 RdA 161, 165. See Arts 20, I and Art 28, I German Constitution. AYM, 19 June 2008, E 2006/101, K 2008/126, RG 19 November 2008/27059. 118 Jahn (n 90) 112. 119 E Aydoğdu, Teşkilâtı Esasiye den Günümüze Anayasalar (Ankara, 2005) 253, Madde 2, Gerekçe. 120 AYM, 19 June 2008, E 2006/101, K 2008/126, RG 19 November 2008/27059.

190  Ceren Kasım to terminate the contract.121 As a result, the welfare state principle requires protection against dismissal.122 2.5.  Enforcement of Rights and Freedoms of Employee: A Preventive Function According to another approach to the law of dismissal, the protection against dismissal renders the enforcement of contract effective: it gives employees the chance to exercise and pursue their rights without fear of dismissal, eventually having an impact on exercising their freedoms, as well as on the enforcement of the contractually agreed terms and all rights and obligations arising from legal norms for the parties to the employment contract.123 In this way, it enables an effective enforcement of the employment contract while avoiding the exploitation of insecure positions of workers, as was the case at the beginning of the twentieth century in Europe.124 The fundamental freedoms of workers would be rendered meaningless without protection against arbitrary dismissal.125 The sense of security also facilitates joint actions of workers and can have a democratising effect on society: workers who feel safe have more desire and courage to form associations. Dismissal protection helps to ensure stability on the labour market and supports the degree of union organisation, which has positive effects on the implementation of collective agreements and the collective labour rights of employees.126 According to this perspective, protection against dismissal is not based on ex-post conflict of interests between the employer’s interest in dismissing the employee and the employee’s interest in maintaining the employment relationship, but on the ex-ante interests of the existing employment relationship.127 Contract enforcement has indeed always played a significant role in the history of dismissal protection. This is particularly evident in the case of protection against unfair dismissal on grounds of trade union membership.128 The weaker 121 BVerfG 22.10.2004, NZA 2005, 41, 42; BVerfGE 97, 169, 175; BVerfGE 59, 231, 266. Deinert (n 101) Einl. 45 para 11; Falkenberg (n 101) 2486; JF Lindner, ‘Grundrechtfestigkeit des arbeitsrechtlichen Kündigungsschutzes?’ [2005] RdA 166, 166ff, 169, 170; Rüthers (n 117) 1601ff; Reuter (n 117) 165. ‘[S]oziale Gerechtigkeit […] verbietet die Diskriminierung des sozial Schwächeren, zugleich jede Ausnutzung sozialer Überlegenheit zum Nachteil des Sozialpartners’. Achterberg (n 103) 720). 122 Deinert (n 101) Einl. 45 para 11; Falkenberg (n 101) 2486ff); HG Rühle, ‘Sinn und Unsinn des allgemeinen Kündigungsschutzes in Deutschland – Plädoyer für eine Neuordnung des Kündigungsschutzrechts’ [1991] DB 1378, 1378ff; Rüthers (n 117) 1601. 123 Dorndorf (n 94) 350; Reuter (n 117) 164, 167; D Reuter, ‘Grundlagen des Kündigungsschutzes – Bestandsaufnahme und Kritik, in: 25 Jahre Bundesarbeitsgericht’ in F Gamillscheg, G Hueck and H. Wiedemann (eds) (München, 1979) 405, 424, 425; D Reuter, ‘Das Recht auf Arbeit – ein Prinzip des Arbeitsrechts?’ (1978) 6 RdA 344, 349; Krause (n 58) 276, para 19. 124 See Kasım (n 15) § 5, A. 125 Krause (n 58) 276, para 19. 126 Preis (n 15) 1 Teil B, paras 13, 18. 127 Dorndorf (n 94) 358. 128 See Toews (n 16) 27; F Syrup and O Neuloch, Hundert Jahre Staatliche Sozialpolitik 1839–1939 (Stuttgart, 1957) 160; H Herkner, Die Arbeiterfrage, Erster Band: Arbeiterfrage und Sozialreform (Berlin, Leipzig, 1922) 140; Kasım (n 15) § 5, A, II.

Building Bridges between Dismissal Protection and Non-discrimination Law  191 economic, social and labour market position of the employee compared to the employer is the fragile point of the relationship between the parties to the employment contract and makes the employee vulnerable to possible exploitation of their labour. Employers can quickly attempt to use their more powerful position to protect their economic and other interests, which by their very nature do not always coincide with the freedoms and rights of employees recognised by law. Dismissal protection functions as a preventive mechanism and relies on the legitimate use of employees’ contractual and non-contractual rights and freedoms.129 3.  ANTIDISCRIMINATION LAW VERSUS DISMISSAL PROTECTION LAW

To conclude in a comparative context, antidiscrimination law and dismissal protection law originate from different legal systems, cultures and histories. Antidiscrimination law is about the recognition of the inner equal moral value(s) of human beings and the value equality of different identities. It is about using antidiscrimination law for transformation of one’s own sense of self and community through consciousness-raising against a sense of inferiority imposed by a dominant culture. What is desired is a social life in which all people – free from derogatory discrimination – can lead a free and dignified life. It recognises and accepts differences between social groups, protects group identities, and by means of these, reinforces people’s authentic self-expression. In that sense, the main aim of anti-discrimination law is a societal transition. Conversely, the main purpose of dismissal protection law consists in neutralising the imbalance of power between the parties to the employment contract and thus to achieve freedom and equality on the labour market. It responds to the inequality of bargaining power between employers and employees and intends to secure the economic and immaterial existence of an individual and social groups, to guarantee their rights and freedoms, and has positive effects on the implementation of the collective labour rights of the employees. While both antidiscrimination law and dismissal protection law deal with social inequalities and justice, dismissal protection requires a balancing of interests between the rights and interests of employers and employees, as well as those of job-seekers. In that sense, dismissal protection law may be understood as the search for a social compromise between parties to employment contracts. Taking into account the indispensable nature of the right to protection against discrimination, a balancing of interests with regard to antidiscrimination law is impossible. Antidiscrimination law focuses on discrimination that has occurred on the basis of legally recognised discrimination characteristics, eg race, colour, sex, language, religion, with reference to prohibitions of discrimination. It primarily



129 See

Dorndorf (n 94) passim.

192  Ceren Kasım protects the person bearing the characteristic against discrimination in the relationship between the citizens and the state (public law) or between the citizens among themselves (private law) and specifically in the context of labour law, the intention is to ensure protection to employees regardless of the characteristics of discrimination, with the guarantee of equality and justice. Dismissal protection law – as a subsection of labour law – instead focuses on dismissals in relation to employment relations, with the intention of strengthening the power position of the employee in the employment relationship by setting standards for termination, such as determining how, when and under what circumstances dismissal is possible, including in the case of making dismissal more difficult or excluding it. It protects employees against unfair dismissal in the relationship between employers and employees (labour law) with the intention of strengthening the power position of the employee in the employment relationship by setting standards for termination. Despite their differences, both areas of law base their findings primarily on the socially existing differences in power and mitigate them. On the one hand, there are the socially disadvantaged groups, who seek protection against socially undesirable discrimination commonly established under the standards of antidiscrimination law; on the other hand, there is the weaker party in the employment relationship in the form of the employees, who seek protection against unjustified dismissals according to the general standards of dismissal protection law. From the very beginning, antidiscrimination law and dismissal protection law have acted as a kind of empowerment project for the oppressed, socially disadvantaged groups and for workers, respectively. Both antidiscrimination law and dismissal protection law go beyond the conceptual framework of existing legal systems. Above all, they challenge the concepts of private autonomy and freedom of contract, positioning themselves against pure economic liberalism by questioning principles such as equality or freedom and justice, while categorically demanding a rethinking, a redefinition and a reconceptualisation. In the context of labour law, both antidiscrimination and dismissal protection law serve as limits to employers’ economic freedom of choice in relation to arbitrariness and exploitation. A protection of the weaker party is demanded. The realisation is gaining ground that pure legal equality and freedom are not enough; what is needed is not only de jure but also de facto equality and freedom. In this sense, both antidiscrimination law and dismissal protection law demonstrate emancipatory potential.

Index Africa See also individual countries conception of rights  60 forced evictions case-law  62 land rights system  59–60, 62 African Charter on Human and Peoples’ Rights  59–60, 67, 68 African Commission on Human and Peoples’ Rights  59–60 African Court on Human and Peoples’ Rights (ACtHPR)  62 Endorois case  61, 62 Ogiek case  61, 62 agency of minorities  120–124 Aloeboetoe v Suriname  57 Alsace-Lorraine  81, 86, 87 American Convention on Human Rights  60–61 American Declaration on the Rights of Indigenous Peoples  67, 68 ancestral property rights  57 Annan, Kofi  11 antidiscrimination measures See discrimination Appiah, KA  27 Argentina  57, 61 pluricultural constitutionalism  8 Aristotle  25 Armenians  77–78, 108 Arruti, José Mauricio  44–46, 47 articulation theory difference and inequality, applied to  41–43, 51 differences, meaning  43 quilombolas articulation  43–50, 51 ascriptive communities  140 assimilationism antidiscrimination measures and  179, 181–182 France  79 multiculturalism  135 one-way nature of assimilation  149 religious minorities  122, 149, 150, 153 associations  140 Assyro-Chaldeans  78

atheism liberalism and  146 Aussiedler  78 Australia Aboriginal population  79 immigrant population  89 multiculturalism  79 autonomy autonomist movements  71 collective rights and  71, 93–94, 101–102 cultural  92–96 difference and personal autonomy  156 Framework Convention for the Protection of National Minorities  95, 104 human right law  4 indigenous peoples’ right to  71 liberalism and  146 minorities  4, 6 minority self-governments in Hungary  91–114 non-territorial  94, 96, 97–98, 112, 125–126 pluralism and  137, 146 political  14 political participation and  95 territorial  14, 67, 94, 96, 97 Aznar, José María  86 Bader, V  138 Balkin, JM  170 Bangstad, S  169–170 Barrès, Maurice Basques  78, 81, 86, 87 Beauharnais v Illinois  163 Beck, Ulrich  148 Beckford, JA  139 Beizaras and Levickas v Lithuania  164 Bekemans, L  128 Berber language  78 Bhabha, Homi  41 Black Lives Matter  10 Bobbio, N  156 Bolivia constitutional reform  7, 70 indigenous population  2, 9, 59

194  Index MAS  7, 59 pluricultural constitutionalism  8 plurinational nature  169 social mobilisation  7–8, 59 Bolsonaro, Jair  3, 46–47, 51–52 border changes  81, 97 Bourdieu, Pierre  87 Bové, José  86 Brazil See also quilombolas Black movement  45, 48 Bolsonaro government  3, 46–47, 51–52 collective rights  57 Constitution of 1988  43–44, 45, 47 Direct Action of Unconstitutionality  46 ethnic reidentification  48–49 ideological war against minorities  46–47 Mocambo and Xocó communities  47–49, 52 multicultural constitutionalism  8 Palmares Foundation  46 regularising land ownership  45–46 Transitory Constitutional Provisions Act  44 Brittany  78, 86, 87 Brunner, G and Küpper, H  93–94 Burchardt, M and Becci, I  138, 139 Camargo, Sérgio  46–47 Cameron, David  149 Canada immigrant population  88–89 multicultural constitutionalism  8, 79 religious minorities  33 Castillo, Pedro  8 Catalunya  78, 80, 81, 87 censorship See expression, freedom of Chávez, Hugo  59 children intersectionality  16 UN Convention on the Rights of the Child  69 Chile collective rights  57 constitutional reform  8–9, 70 indigenous population  8–9 social mobilisation  2, 3, 8, 59 China minority populations  78 Chirac, Jacques  82 citizenship  15 acquisition  142

civic-republican model  142 dual  87 equality and  81, 141, 170 European States  142, 159–160 foundation of national identity  81–85, 86, 142 French State  81–85, 86 legal status  24, 141–142 liberal  142–143 multiculturalism and  83–85, 137, 141–145 pluralism and  85, 126, 145 political relevance  35 rights and  142 sexual minorities  160–161 State  79, 81–82, 142–143 women  160–161 civic-republican model  142 Clermont Tonnerre, Comte de  85 Colbert, Jean-Baptiste  85 collective complaints procedures  55 collective rights  13, 14–17, 154 African system  59–60, 62 Aloeboetoe v Suriname  57 ancestral property rights  57 autonomy and  71, 93–94, 101–102 classification  29, 55, 68–72 complaints procedures  55 constitutional orders  70 cultural  56, 57, 64 decolonisation and  57, 58 development  57–58 difficulty of enforcing  53–54 Dogan v Turkey  62 dual-standing rights  63–64 electoral representation  57, 59 Endorois case  61, 62 environmental  14, 57, 58 equality and  180 Escué Zapata v Colombia  57 European constitutionalism  13–14 European Union  66–67 expanding institutional scenery  70–71 external protections  63 food security  14, 15 forced evictions  62–63 hard-law perspective  54 human rights order  15 indigenous peoples  9, 54, 57, 58 individual rights conflicting with  80, 85 Inter-American system  59, 60–61

Index  195 internal restrictions  63 international law  54 jointly exercised individual rights  63–65, 66 judicialisation  53, 56–59, 73 Kichwa Sarayaku v Ecuador  57 Kuna Peoples … v Panamá  57 land rights  57, 62–63 Latin American constitutionalism  58 Lhaka Honhat v Argentina  57, 61 limits  71–72 Mayagna (Sumo) Awas Tingni v Nicaragua  57, 60, 61 minority autonomy and  93 minority rights regimes and  56 minority self-governments in Hungary  92 Moiwana v Suriname  57, 61 multiculturalism  58 national minority rights  66–67, 72 natural resources  6, 7, 13, 62 nonindividual standing rights  64–65 Norín Catrimán v Chile  57 normative exceptionalism  56 Ogiek case  61, 62 Ogoni case  61 peasants’ rights  13, 71 pluralist constitutionalism  57–58 plurinational constitutionalist claims  54 prior consultation and consent  63 procedural claims  61, 64, 65–67, 72, 73 quilombolas land claims  36, 37, 44, 45–52 recognition  56 religious minorities  154 responsive function  56, 58 Saramaka v Suriname  57, 61, 62 Sawhoyamaxa v Paraguay  57 scales of collectivisation  69–72 social rights  58–59 soft-law instruments  54 solidarity rights  55 spiritual  56 substantive claims  61, 66, 72 supranational judicial dialogue, through  59–63 third-generation rights  55 treaty-monitoring jurisprudence  72 value collectivism  28 vindicating  63–67 water rights  14 Xákmok Kásek v Paraguay  57 Xucuru v Brazil  57

Yakye Axa v Paraguay  57 Yatama v Nicaragua  57 Colombia collective rights  57 pluricultural constitutionalism  8 social mobilisation  1 colour See also ethnicity minorities defined by  78 Commission for Security and Co-operation in Europe Copenhagen Document  95 communality  139–141 communitarianism  139–140 liberalism and  126–127, 143 constitutionalism European  13 invisibilising side effects  1 Latin America  3, 7–8, 88 multicultural  7–8, 58–59, 79 pluricultural  8, 57–58 reversed  88–89 transformative  7 constitutions dominance of equality principle  13 originalism in interpretation  166–171 recognition of minorities  70, 78–80 Copenhagen Document  95 Corsica  78, 80, 86, 87 cosmopolitanism  135, 150 Council of Europe hate speech, policy towards  167–168 minority rights framework  5, 66–67, 72, 78, 79–80, 81, 84, 92, 95, 104, 153 criteria for recognition  5–6, 105–106 cultural competence, concept of  132–133 cultural difference  38–39, 43 assimilationism  79, 122, 135 cultural authenticity  31 cultural racism  129, 135–136 entrenching  32 globalisation and  135 incompatibility among groups  11 inequality and  38–40, 42, 45–50 interculturalism  83, 128, 129–130, 135, 137, 138, 148–152 liberalism neglecting  80 minorities See cultural minorities; religious minorities multiculturalism See multiculturalism primordial  27, 28 segregationism  135

196  Index cultural minorities See also cultural difference; multiculturalism; religious minorities  13, 77, 78 collective  56, 57, 64 Council of Europe  79–80 cultural authenticity  31 discrimination against See discrimination education  127–131 equality and  32 essentialisation of identity  21–22, 27–34 European Union  84 indigenous See indigenous peoples isolation from majority culture  131, 142 legal recognition  26 representative actors  33 self-government in Hungary  91–114 UN Convention on the Rights of the Child  69 Dahl, RA  166 Declaration of the Rights of Man and of the Citizen  1, 82, 83, 167 decolonisation collective rights and  57, 58 Delanty, Gerard  148 Delgado, R  165 democracy See also political participation Central and Eastern Europe  91–92, 96 diversity deficit  168 electoral legitimacy  92, 107–109 freedom of expression and  165, 168, 170, 172 multiculturalism and  84, 144–145, 166 polyarchal democracies  166 Dewey, John  146–147 diasporas  81 difference articulation theory of inequality and  41–43, 51 categorical inequalities  36, 39–41, 50 claiming  36–39 cultural authenticity  31 differentiated racism  88 diversity deficit  168 endemic  28 entrenching  32 equal value of social groups and identities  182–184, 191 ethnic reidentification  48–49 European constitutional protection  124 fluctuating and dynamic  36 human rights law  156

inequality and  36, 37–39, 41–43, 51 moral  38–39 othering  4 personal autonomy and  156 politics of  35–36, 51, 118 primordial  27, 28 privatisation of  146–147 recognition of  38 religious See religion; religious minorities right to be different  3, 156 self-expression, right to  182, 191 socioeconomic hierarchies  41, 49, 164 superdiversity  118–119, 129, 135–156 disabled persons as a minority  78, 79 discrimination against  180 intersectionality  16 discrimination anti-egalitarian orientation  179 assimilationism and  179, 181–182 cultural minorities  10 development of antidiscrimination law  173–174 direct  11, 174 disabled persons, against  180 educational provision, in  129–130 employment dismissal protection and  173–192 equality and  178–184 equality of opportunity  10, 38, 121, 132, 152, 177, 180–182, 183 equal value of social groups and identities  179, 182–184, 191 EU antidiscrimination law  83, 173–174, 176 goal of antidiscrimination law  177–184 human rights and  174 ILO Conventions  174 indirect  11, 114, 174 international conventions  174 intersectional  13, 15–16 labour and employment relations  174 linguistic minorities  191 othering  4 positive  13, 79, 174, 180 post-war liberalism  160 procedural justice  178–179 process-based approaches  178–179, 180 protected characteristics  32, 177, 178–179, 191–192

Index  197 racial  11, 173, 177, 180, 191 religion, on grounds of  153–154, 155, 177, 191 right to non-discrimination  125 self-government  114 sex/gender/sexual orientation  11, 160, 173, 177, 180, 191 social groups  180, 181 social justice and  181, 184–191 structural  4, 177–184 unequal treatment  177 US antidiscrimination law  173 dismissal protection and discrimination  173–192 diversity deficit  1, 168 Dogan v Turkey  62 dual-standing rights  63–64 Dworkin, Ronald  38 Ecuador collective rights  57 constitutional reform  7–8, 70 free speech  172 indigenous rights  59 pluricultural constitutionalism  8, 169 social mobilisation  2, 7–8 education capacity building in diversity management  128 cultural competence, concept of  132 identity-building process  128 inequality  129 interculturalism  128, 129–130 intergroup contact/co-presence  130 religious minorities  12, 117, 120, 126, 127–131 Eisenberg, A  27–28, 31, 32–33 electoral representation See also democracy; political participation collective rights  57, 59 employment contract  175, 184–185, 190–191 dignity of employee, protection  187–188 dismissal protection and discrimination  173–192 European Charter of Fundamental Rights  175 European Social Charter  175 ILO Conventions See International Labour Organisation non-discrimination rights  174

power asymmetry in employment relationship  175, 177, 181, 185–187, 191, 192 rights and freedoms of employee  190–191 US employment law  185 welfare state and dismissal protection  189–190 work, right to engage in  188–189 worker mobility  189 Endorois case  61, 62 environmental rights collective  14, 57, 58 epistemological capacity  42 equality citizenship and  81, 83, 141, 170 collective rights and  180 condition, of  132, 180 criminalisation of hate speech  162–166, 171–172 discrimination and  178–184 dominance in constitutions  13 employment dismissal protection  185 equality over culture  32 equal treatment and  179 equal value of social groups and identities  179, 182–184, 191 EU Equality Directives  174 EU principle of  81 European constitutionalism  13 formal  178, 179, 180 French Constitution  83, 86–87 human right, as  125, 174, 178 multiculturalist theory  121 opportunity, of  10, 38, 121, 132, 152, 177, 180–182, 183 procedural  180 right to  15, 125 social power asymmetries and  42, 166, 175 unequal treatment See discrimination; inequality Universal Declaration of Human Rights  174 universalism and minority rights  80, 83, 86 Escué Zapata v Colombia  57 essentialisation forms of  27–28 identity, of  21–22, 27–34 legal rights  29–32

198  Index multiculturalism and  27–29, 32 primordialist  27, 28 ethnicity See also indigenous peoples discrimination on grounds of See discrimination essentialisation  31–32 ethnic minorities  13, 77, 78 ethnic nationalism  80, 91–92 ethnic reidentification  48–49 inter-ethnic tensions  91–92 international human rights law  13 Mandla v Dowell-Lee  31–32 minority self-governments  91–114 recognition of ethnic groups  31–32 religion and  148 European Convention on Human Rights (ECHR) freedom of expression  164 European Court of Human Rights (ECtHR) approach to multiculturalism  144 Beizaras and Levickas v Lithuania  164 Dogan v Turkey  62 Lautsi v Italy  144 protection of minorities  81 Vejdeland & Others v Sweden  164 European Court of Justice (ECJ) collective standing rights  66–67 European legal reasoning  144–145 European States Central and Eastern  91–92, 159, 161 citizenship  142, 159–160 concept of secularism  115 cultural diversity, legal reasoning on  144–145 decentralised management of minorities  125–126 equality principle  13 immigration into  79–85, 88–89, 125–126, 138, 144–145, 159–160 multiculturalism  159 nationalism  88, 91–92, 159–160 World War II  160 European Union accession conditionality  92 Amsterdam Treaty  174 antidiscrimination law  83, 173–174, 176 Charter of Fundamental Rights  175 Charter of Regional and Minority Languages  78, 81, 86 collective rights  66–67 Copenhagen criteria  92 cultural minorities  84

diversity as part of EU identity  78, 80, 81, 136 Equality Directives  174 equality of rights  81 Framework for … Roma Integration  150–151 free speech, policy towards  167–168, 170, 171 linguistic minorities  84 Lisbon Treaty  78, 136 multiculturalism  84–85 political unity principle  81 sexual minorities  161 Social Charter  175 territorial integrity principle  81 Expert Mechanism on the Rights of Indigenous Peoples  9, 63, 71 expression, freedom of antidiscrimination law  182, 191 censorship  169 Council of Europe policy  167–168 criminalisation of hate speech  162–166, 171–172 Declaration of the Rights of Man and of the Citizen  167 democracy and  165, 168, 170, 172 diversity deficit  168 duties and responsibilities carried by  167, 172 ECtHR cases  164 EU policy  167–168, 170, 171 exclusionary effects  162–166 fundamental right, as  167 grounds for limiting  167–168 human right law  4 ICCPR  167 internet and  162, 170–171 legitimacy argument  168 liberalism and  159–162, 165, 168–171 originalism in constitutional interpretation  166–171 ‘outsider jurisprudence’  165 racism  163, 165, 167 sexual and gender minorities  161–162, 165–166, 167–168, 170–171 US First Amendment  163, 164, 165, 166–168, 169, 171 fairness, principle of  10, 118, 170 Fleras, A  152 Florentino, M and Amantino, M  44

Index  199 food security collective rights  14, 15 forced evictions collective rights  62–63 France assimilation policy  79 centralised administration  83, 85–86, 87 citizenship foundation of national identity  81–85, 86 Constitution  78, 82, 87 Corsica  78, 80, 86, 87 Declaration of the Rights of Man and of the Citizen  1, 82, 83, 167 dual citizenship  87 equality a constitutional principle  83, 86–87 Girondins  85 immigration into  82–83, 84, 87–88 Islamic population  82, 87–88 Jacobinism  83, 85 laïcité  79, 82, 86, 87 liberalism  83 linguistic minorities  78, 83–84, 85, 86, 87 minority populations  78, 79, 80, 82–88 multiculturalism  83–88 overseas territories  84, 87 regionalism  86 regional populations  78, 80, 81, 83–84, 86 social contract  81, 83, 84, 86 Third Republic  82, 83, 84, 86 unity and indivisibility of French people  83, 86 Vichy regime  86 Frankfurter J  164 Fraser LJ  31 Fraser, Nancy  25 dual model of inequality  38–39, 41, 42, 50–51 parity of participation  38 Fraser, Nancy and Honneth, Axel  36, 37–39 freedom See also expression, freedom of freedom of belief  125, 153–154 maximization  4 French, Jan Hoffman  47, 48 Fujimori, Keiko  3, 8 fundamental rights See human rights Garet, R  139–141 gender-based inequality See also discrimination; sexual minorities citizenship  160–161 EU law  173–174

free speech and  161–162, 165–166, 167–168 intersectional  13, 15–16 LGBTQI+ communities  15, 78 religious minorities  131 geographical bonds, lost  15 Germany Ausländerbeiräte  24 employment dismissal protection  184, 185 EU non-discrimination directives  176 immigrant population  24, 79, 84–85 Leitkultur  79 unfair dismissal  176 Girondins  85 Glazer, Nathan  148 globalisation cosmopolitanism  150 cultural diversity and  11, 135 migrant populations  11, 15, 85 Global North and Global South  51 Goethe, Johann Wolfgang von  82 Greece Turkish population  77 Green, Leslie  25 Guatemala multicultural constitutionalism  8 Habermas, J  147 Hall, Stuart  41–42 Hart, H  29 hate speech See expression, freedom of Honneth, Axel  36, 37–39 difference approach to inequality  36, 37–39, 40, 41, 50 human dignity antidiscrimination law  191 diversity and  139–141 employees’  187–188 freedom of expression and  163 human right, as  125, 136, 137, 140–141, 156, 182 identity and  141, 156 human rights See also collective rights; human rights African rights system  60, 62 categorisation  53 citizenship and  142 classification  29, 55, 68–72 collective See collective rights Declaration of the Rights of Man and of the Citizen  1, 82, 83, 167

200  Index employment See employment equality  125, 174, 178 essentialisation  21–34 European Charter of Human Rights  175 exercising criterion  64 expanding institutional scenery  70–71 freedom, maximization  4 freedom of belief  125, 153–154 freedom of expression See expression, freedom of freedom of occupation  188–189 freedom to participate in society  165 group rights in Brazil  43–50 human dignity See human dignity identity, right to maintain  136, 154, 156 indigenous peoples See indigenous peoples individual-based  4, 61 international law  4, 136–137 intersectional grounds, infringements on  16–17 minorities, recognition See recognition of minorities minority groups, of  6, 12–13, 170 multiculturalist model  136 non-discrimination  174 nonindividual standing rights  64–65 political participation See political participation postmulticulturalist model  152–156 respect, protect, fulfil framework  53 rights-holders  29 right to be different  3, 156 right to exist  154 solidarity rights  55 third-generation rights  55 unequal  42 Universal Declaration of  68, 174 universalistic nature  22, 29 Vienna Declaration  71 Hungary Act on the Rights of Nationalities  98, 101–103, 106, 107–108, 113 democratic transition  91 electoral legitimacy  107–109 ethnobusinesses  112, 113 Fidesz party  99, 101 Fundamental Law  99–101, 109, 113 Jews  105 kin-state policy  97–98 linguistic minorities  97–98 minority electoral list  107 minority nationalities  97–114

Minority Rights Act  96–99, 102, 105, 106, 107, 109, 112 minority self-governments  91–114 nationality advocates  110–111 official language  100 political participation  93, 94–95, 98, 100–101, 109–110 Roma  97, 98, 103, 108, 109, 111, 113, 114 identity capacity building in diversity management  128 equal value of different identities  182–184, 191 essentialisation of  21–22, 27–34 ethnic reidentification  48–49 human dignity and  139–141, 156 human rights law  136, 154, 156 identity-building, role of education  128 individual or group affiliation  5–6 legal recognition  21–34, 141 majority collective identities  141–142, 144–145 national  142 pluralism and  145 recognition, identity-based conflicts over  26 religion as marker of  139–141, 148 right to maintain  154, 156 self-determination over accommodation  32 self-identification  4, 5–6, 32, 105, 107, 123, 125–127, 128, 137 ‘imaginary categorisations’  54–55 immigration European States  79–85, 88–89, 128, 138, 144–145, 159–160 France  77–80, 82–83, 84, 87–88 Germany  24, 79 globalisation creating  11, 85 interculturalism  83, 128, 129–130, 135, 137, 138, 148–152 migration-driven diversification  125–126, 138 multiculturalism See multiculturalism recognition of immigrant minorities  79 religious minorities See religious minorities social cohesion and  159–160 indigenous peoples African Charter  67, 68 American Declaration on Rights of  67, 68 ancestral property rights  57

Index  201 autonomy, right to  71 collective human rights  9, 54, 57–73 communitarian traditions  65–66, 72–73 conceptualisations of land and resources  57 cultural rights  7, 56, 57, 64 decentralised power bases  64 electoral representation  57, 59 environmental rights  57, 58 EU collective standing rights  66–67 expanding institutional scenery  70–71 Expert Mechanism on Rights of  9, 63, 71 globalisation and neoliberalism  58 ILO Convention No 169  5 indigenous jurisdictions, parity for  7, 58 intersectionality  16 land rights  6, 7, 57, 65 Manila Declaration  33 minority groups  9, 77 natural resources, rights  6, 7 Permanent Forum on Indigenous Issues  9 prior consultation and consent  63 recognition  5–6, 7–8 rights, recognition  17 rights in international law  54 self-determination  70 self-governance  70 self-identification  5 social mobilisation  2–3, 7–9, 59 soft law norms  54 Special Rapporteur on Rights of  9, 63, 71 UN Convention on the Rights of the Child  69 UN Declaration on Rights of  5, 54, 71, 78 UN rights organizations and treaties  9, 69, 71, 72 women  16 individual rights See also human rights collective rights conflicting with  80, 85 human right laws  4, 61 minority rights conflicting with  80, 85 rule of law principle  30 inequality See also discrimination; equality age-based  131 articulation theory of difference and  41–43, 51 categorical inequalities approach  36, 39–41, 50 cultural identity and  38–40, 42, 45–50 definition of social inequality  42 difference and  36, 37–39, 41–43, 51 dual model  38–39, 41, 42

economic approach  36, 38, 39, 40–41, 42 educational provision, in  129 employment relationship asymmetry  175, 177, 181, 185–187, 191, 192 empowerment, unequal  42, 166 gender-based  131 horizontal–vertical approach  36, 39–41, 50 injustices linked to  38 intersectional  13, 15–16, 39, 118, 129 parity of participation  38 recognition–redistribution paradigm  36, 37–39, 50–51 religious minorities, within  123, 131 rights, unequal  42 structural social disadvantages  177–184 systemic  4 territorial  49 integration multiculturalism compared  149–150 plurinationalism  169 Inter-American Commission on Human Rights  60–61 Inter-American Court of Human Rights (IACtHR) African human rights system  62 Aloeboetoe v Suriname  57 collective rights cases  56–57, 60–61, 72–73 Escué Zapata v Colombia  57 forced evictions case-law  62 indigenous rights  9 Kichwa Sarayaku v Ecuador  57 Kuna Peoples … v Panamá  57 Lhaka Honhat v Argentina  57 Mayagna (Sumo) Awas Tingni v Nicaragua  57, 60, 61 Moiwana v Suriname  57, 61 Norín Catrimán v Chile  57 right to participation  65 right to property  65 Saramaka v Suriname  57, 61, 62 Sawhoyamaxa v Paraguay  57 Xákmok Kásek v Paraguay  57 Xucuru v Brazil  57 Yakye Axa v Paraguay  57 Yatama v Nicaragua  57 Inter-American system of human rights collective rights  59, 60–61 land rights  61 interculturalism  83, 128, 129–130, 135, 137, 138, 148–152

202  Index International Labour Organisation (ILO) Convention No 100  174 Convention No 111  174 Convention No  158 175, 176 Convention No 169  5, 54 No 107 framework  57 internet criminalisation of hate speech  162, 171–172 freedom of expression and  162, 170–171 intersectional inequality  13, 15–17, 39, 118, 129 Italy historical legitimacy  144 linguistic minorities  78 Jacobinism  83, 85 Jews  78, 85, 105 jus commune  69 justice antidiscrimination measures and  178–179, 181, 184–191 articulation theory  42 cultural or moral dimension  39 dismissal protection as a social justice  184–191 economic dimension  39 law and  21, 25 ‘outsider jurisprudence’  165 parity of participation  38 principle of  10 Rawls’ theory of  24 recognition and  37, 118 redistribution and  5, 38 social justice  5 Kelsen, Hans  23, 29 Kenya Ogiek case  61, 62 Kichwa Sarayaku v Ecuador  57 kin-states  97–98, 104, 109, 112, 133 Kuna Peoples … v Panamá  57 Kurdish people  77–78 Kymlicka, W  16, 28, 38, 122, 143 Lafont, Robert  86 laissez-faire idea of employment relationships  185 land-related rights  63 land rights African rights system  60, 62 Brazilian quilombolas  36, 37, 44, 45–52

collective  62–73 communitarian traditions  65–66, 72–73 forced evictions  62–63 indigenous conceptualisations of  57 indigenous peoples  6, 7, 65 Inter-American system of human rights  61, 62 State sovereignty  7 Latin America See also individual countries collective human rights  58 constitutionalism  3, 7–8, 88 multiculturalism  78–79 plurinational constitutionalist claims  54, 169, 172 social mobilisation  2–3, 7–9 Lautsi v Italy  144 Lavisse, Ernest  83–84, 86 Lebanon  80 legal landscape  23–27 legal language  33–34 legal status  21–22, 24 Lhaka Honhat v Argentina  57, 61 linguistic minorities border changes  81, 97 Council of Europe  79–80 discrimination against  191 essentialisation  31–32 EU Charter  78, 86 European Union  84 France  78, 83–84, 85, 86, 87 Hungary  97, 100 Italy  78 recognition  22 Lithuania  164 Ljubljana Guidelines on Integration of Diverse Societies  5, 105 Lock, John  146–147 Lund Recommendations  95–96, 104 McIntyre, A  140 Macron, Emmanuel  82 Mandla v Dowell-Lee  31–32 Manila Declaration on … Indigenous Peoples  33 Marx, Karl  35 Matsuda, Mari  165 Maurras, Charles  86 Mayagna (Sumo) Awas Tingni v Nicaragua  57, 60, 61 Medusa Syndrome  27 Meer, N and Modood, T  151–152

Index  203 Merkel, Angela  79, 149 Mexico pluricultural constitutionalism  8 migration See also immigration diasporas  81 increase in  15 Mill, John Stuart  146–147, 169 minorities See also cultural minorities; linguistic minorities; multiculturism; religious minorities; sexual minorities agency  120–124 assimilationism  79, 122, 149, 150, 153, 179, 181–182 autonomy  4, 6, 91–114 constitutional recognition  70, 78–80 Council of Europe rights framework  5, 66–67, 72, 78, 79–80, 81, 84, 92, 95, 104, 153 cultural difference, recognition  38 definition  77 disabled persons  16, 78, 79, 180 discrimination against See discrimination diversity governance  10–17 equality and  180, 182–184 essentialisation of cultural identities  21–22, 27–34 essentialisation of distinctive features  27 ethnic  13, 77, 78 European Union  78, 81, 84, 86, 161 Hungary, recognition in  104–106 identity-based conflicts  26 integration  79, 88–89, 142 justice, recognition and  37, 118 legal recognition  10–11, 21–34 Medusa Syndrome  27 minority nationalities  104–106 narrow recognition  119–120 national  6, 66–67, 72 national rights conflicting with  80 ‘new’ minorities  11 old-established States  77–89 political participation  94–95 politicisation of minority issues  132 politics of recognition  6, 10, 21, 26–27, 32–34, 38, 118, 163 primordialist essentialism  27 recognition  10–11, 77–89, 119–120 religion as marker of identity  139–141, 148 self-determination  4, 5, 6, 10–11, 12–13, 32, 125–126

self-identification  5, 105, 107 social recognition  10–11 visibility to and in law  21–34 Mirabeau, Comte de  85 Mistral, Frédéric  86 Modood, T  28, 149, 151 Moiwana v Suriname  57, 61 Morocco Amazigh-speakers  78 Multani v Commission scolaire Marguerite-Bourgeoys  33 multiculturalism abandonment in Europe  79 capacity building in diversity management  128 citizenship and  83–85, 137, 141–145 collective human rights  58 critical  148 criticisms against  21–22 cultural incompatibility among groups  11 decline  11, 135, 137, 148–152 democracy and  84, 144–145 equality  121 essentialisation of cultural identities  21–22, 27–34 European States  159 forms of  148–149 France  83–88 group recognition  26 group visibility  21 human rights and  136 insurgent  148 integration compared  149–150 interculturalism and  148–152 Latin America  78–79 law and  21–22 liberalism and  83, 143, 159 meaning  82, 149–150 multicultural constitutionalism  7–8, 58–59, 79 negative effects  21–22 operative public values  121 political theory, as  21 postmulticultural superdiversity  137, 152–156 radical  148 religious diversity and  117, 121, 135–156 segregation fostered by  150 social cohesion and  148, 150–151 United Kingdom  83

204  Index Myanmar Rohingyas  78 Napoleon I  85–86 national identity citizenship and  142 nationalism Central and Eastern Europe  91–92 ethnic  80, 91–92 European movements  88, 91–92, 159–160 plurinationalism  135 taming  6 nationality acquisition  142 dual  87 minority nationalities, recognition  104–106 national minorities See minorities natural resources collective rights  6, 7, 13, 62 resource sovereignty  67 neoliberalism  58 Netherlands multiculturalism  79, 84–85 New York Times v Sullivan  163 Nicaragua collective rights  57, 60, 61 multicultural constitutionalism  8 Nigeria Ogoni case  61 Norín Catrimán v Chile  57 Northern Ireland  80 Occupy movement  51 Offe, C  24, 26 Ogiek case  61, 62 Ogoni case  61 operative public values  121 opportunity, equality of  10, 38, 121, 132, 152, 177, 180–182, 183 Orbán, Viktor  101, 109 Organisation for Security and Co-operation in Europe  92, 93 Ljubljana Guidelines  5, 105 Lund Recommendations  95–96, 104 Panama Kuna Peoples … v Panamá  57 Paraguay collective rights  57 pluricultural constitutionalism  8

Parekh, B  121, 143 Paris Peace Conference 1919  80 participation parity of  38 public life, in, Lund Recommendations  95–96, 104 Pateman, Carole  160, 161 Paty, Samuel  87 peasants’ rights  13, 71 personhood  139, 140–141 legal  29 natural and juristic persons  23 Peru indigenous population  8, 9 pluricultural constitutionalism  8 social mobilisation  3, 8 Phillips, A  27 Piñera, Sebastián  2, 8, 59 pluralism Andean States  54, 169, 172 autonomy and  137, 146 citizenship and  85, 126, 145 European constitutionalism  13 human rights and  136 identity and  145 legal  13 pluralist constitutionalism  8, 57–58 plurinationalism  135 Poisot, Ferrer Mac-Gregor  61 political participation See also democracy effective  93, 98 electoral legitimacy  92, 107–109 Hungary  93, 94–95, 98, 100–101, 104–105, 109–110 meaning  93 minority groups  94–95 minority self-governments in Hungary  96–114 parliamentary representation  109–112 unequal political influence  42 political unity principle  81 politicisation religious minorities  132 politics of recognition  6, 10, 21, 26–27, 38, 118, 163 population exchanges  77 Post, Robert  172 post-Westphalian order  15 power asymmetries See also inequality employment relationships  175, 177, 181, 185–187, 191, 192 social power  42, 166, 175

Index  205 procedural paradigm collective human rights  64 public life participation in  94–96, 98, 104 public services See also education cultural competence, concept of  132–133 public sphere State/society dichotomy  165 quilombolas Bolsonaro government  46–47, 51–52 Brasil Quilombola Programme  46 certification  46 claiming status as  36, 37 confederation (CONAQ)  49–50, 52 criterion of self-identification  46 cultural identification as  45–52 cultural and political mediators  48 ethnic reidentification  48–49 extent of communities  44, 46, 51 identification as quilombo remnants  48 invisibility vis-a-vis the State  44 land rights  36, 37, 44, 45–52, 79 Palmares Foundation  46 politicisation of difference  36, 51 quilombolas articulation  43–50 racism See also discrimination; expression, freedom of cultural  129, 135–136 differentiated  88 equal rights and  11 Rassemblement National  84 Rawls, John  1, 24, 38, 131, 147 recognition–redistribution paradigm  36, 37–39, 50–51 redistribution justice and  5, 38 moral and cultural motivation  38 recognition and  36, 37–39, 50–51 regionalism  86 religion ethnic culture and  148 identity and  139–141, 148 increasing adherence globally  120, 126 Lautsi v Italy  144 liberalism and  116, 117, 124, 126–127, 146–147 minority See religious minorities multiculturalism and religious diversity  117, 121, 135–156 private and public values  146–147

privatisation of differences  146–147 protection of diversity, grounds for  137–138 religious diversity  116–117, 135–156 religious identity  139–141, 148 right to freedom of belief  125, 153–154 role of the State  115–117, 124–127 secularism in Europe  115–117 superdiversity  118–119, 129, 135–156 religious minorities See also cultural minorities age-based disempowerment  131 agency  120–124 assimilation policy, resistance to  122 collective rights  154 consultation and collaboration  133–134 Council of Europe rights framework  153 cultural racism against  129, 135–136 decentralised management  125–126 disconnection from society  132–134 discrimination against See discrimination educational provision and  12, 117, 120, 126, 127–131 European  117, 135–156 gender-based disempowerment  131 inequality within  123, 131 isolation from majority culture  131, 142 legal self-regulation  12, 123, 125–126, 133 Mandla v Dowell-Lee  31–32 migration-driven diversification  125–126, 138 Multani v Commission scolaire Marguerite-Bourgeoys  33 multiculturalism and  117, 121, 135–156 perceived threat from  124, 136, 148 politics of difference  118–120, 132 postmulticulturalist model  152–156 recognition  77, 78 recognition and accommodation  116–134 self-government  123, 125–126, 133 self-identification  123, 125–127, 128 State-provided services and  132–134 State recognition  118–124, 131 UN Declaration  153–154, 155 unregulated practices  131 Rohingyas  78

206  Index Roma  78 EU Framework for … Integration  150–151 Hungary  97, 98, 103, 108, 109, 111, 113, 114 Romania Transylvanian Hungarians  78 Rousseff, Dilma  46 Ruiz Vieytez, EJ  141 rule of law principle consistent application  29–30, 80, 123, 168 liberalism and  30 Rusyn  105, 106, 108 Saramaka v Suriname  57, 61, 62 Sarkozy, Nicolas  82 Sawhoyamaxa v Paraguay  57 secularism decline  120 Europe  115–117 France  79, 82, 86, 87 liberal democratic States  142, 146–147 right to non-belief  125 role of the State and  115–117 secularisation theory  137 Seglow, J  119–120 segregationism  135, 150 self-determination aspirations for  81 indigenous peoples  5 minorities  4, 5, 6, 10–11, 12–13, 32, 125–126 right to, international treaties  78, 80–81 self-government co-nations  65 indigenous  70 minority self-government in Hungary  91–114 religious minorities  123, 125–126, 133 self-respect and  13 state-centric mindset and  14 self-identification  4, 5, 32, 39–47, 67, 105, 107, 123, 125–127, 128, 137 sexual minorities See also gender-based inequality citizenship  160–161 discrimination against See discrimination free speech and  161–162, 165–166, 167–168 intersectionality  16–17 legal protection  11, 15, 78, 79

Shachar, A  16, 142 slavery Brazilian quilombolas See quilombolas French territories  85 social cohesion multiculturalism and  148, 150–151, 159–160 social constitutionalism collective human rights  58 social contract France  81, 83, 84, 86 libertarian  169 social groups See also collective rights mobilisation  2–3, 7 recognition  30–34, 180 representative actors  33 value collectivism  28 visibility to and in law  21–34 social hierarchies  32, 41, 49, 164 social inclusion freedom of expression and  165–166 social recognition  10–11 use of term  150–151 sociality  139, 141 social marginalisation  114 social rights collective  58–59 societal transformation indigenous movements  7 law’s transformative potential  1–2, 177–184 minority governance from below  7–9 solidarity rights collective  55 sovereignty exclusionary  1, 159–160 nationalism and  84 principle of  14, 123 resource sovereignty  67 Western concept of  7, 79, 88–89 Spain citizenship  142 minority populations  78, 80, 86, 87 spiritual rights collective  56 statelessness  78 Stewart, Frances  36, 40–41 superdiversity intersectional accounts of  129 postmulticultural  137, 152–156 religious  118–119, 129, 137, 152–156

Index  207 Suriname collective rights  57, 61, 62 Sweden incitement to hatred  164 Taylor, Charles  10, 26, 38, 122, 140, 143, 159–160, 163 Temer, Michel  46 territorial integrity principle  81 Thornberry, P  154 Tibetans  78 Tilly, C  36, 39–41 Tocqueville, Alexis de  169 Transylvanian Hungarians  78, 105, 106, 108 Turkey collective rights  62 employment dismissal protection  184, 185 harmonisation with EU law  176 Ukraine Transylvanian Hungarians  78, 105, 106, 108 United Kingdom Commonwealth populations  79 community rights  80 ‘faith schools’  120 multiculturalism  83, 84–85 pluricultural nature  80 religious minorities  31–32 United Nations Commission on Human Rights  62 Convention on the Rights of the Child  68–69 Declaration on religious minorities  153–154, 155 Declaration on the Rights of Indigenous Peoples  5, 54, 71, 78, 81 Declaration on the Rights of … Minorities  94–95, 153–155 Economic and Social Council  71 Expert Mechanism on the Rights of Indigenous Peoples  9, 63, 71 Human Rights Committee  13 Human Rights Council  71 indigenous rights in UN treaties  69, 72 International Covenant on Civil and Political Rights  69, 72, 80–81, 167, 174, 179 Office of the High Commissioner for Human Rights  70, 71 Permanent Forum on Indigenous Issues  9, 71

Special Rapporteur on the Rights of Indigenous Peoples  9, 63, 71 Sub-Commission on Prevention of Discrimination and Protection of Minorities  62 United States antidiscrimination law  173, 185 employment contracts  185 First Amendment  162, 164, 165, 166–168, 169, 171 immigrant population  88–89 incitement to hatred  163 Indian Citizenship Act  24 indigenous peoples  24 Universal Declaration on Cultural Diversity  141 Universal Declaration of Human Rights  68, 174 universalism minority rights and  80, 83, 86 Uyghurs  78 Valmy, battle of  82 value collectivism  28 Vejdeland & Others v Sweden  164 Venezuela indigenous parliamentary representation  59 pluricultural constitutionalism  8 Vertovec, S  118, 129, 138, 148, 152 Via Campesina  71 Vidal de la Blache, Paul  86 Vienna Declaration on Human Rights  71 Waldron, Jeremy  29–30, 162, 164 Walzer, M  140 water rights  14 Weber, Max  35 welfare state employment contract relations and  189–190 Wieviorka, Michel  88 Williams, Rowan  115 Wilson, Woodrow fourteen points  78, 80 women See gender-based inequality World Economic Forum The Role of Faith in Systemic Global Challenges  120 World War II European States  160

208  Index Xákmok Kásek v Paraguay  57 Xucuru v Brazil  57

Young, IM  121, 143 Yugoslavia  80

Yakye Axa v Paraguay  57 Yatama v Nicaragua  57

Zemmour, Eric  79, 87