(The article has been a draft for presentation )

The problem of
constructing a definition that will fully describe what is “national minority”
does not appear to be new in national and international law.

The events in
Balkan part of Europe and Caucasus made a breakthrough in a way terms and
definitions related to “national minorities” can now be interpreted. Since the
fall of the Soviet Union, there appears to be more freedom to operate with
terminological space for the past decade. For this reason it is interesting for
me to consider afresh two of the issues with the use the term of “national
minority”. The first one is connected with the issue what is “national
minority”. The second is related to the issue what/how rights should be used to
protect “the national minority”. The article assumes that while standards of
protection may differ and it is still possible to construct a definition that
describes the term national minority. To reach this end in view this work will
also consider the most recent trends in this area.

There seem to be several
generally recognized difficulties with the definition of the minority. Firstly,
disagreements over who means the “national minority” so substantial that the
Framework Convention on the Protection of National Minorities (FCNM) provides no
definition for it on a European scale. Secondly, the existing studies indicate
that the Advisory Committee advances the use of such definitions that cover more
type of minorities rather than fewer types. At the same time the broader the
definition is the less there seems to be consensus on which is the minority to
be protected by law. There are also difficulties with terms that are other than
the “national minority” but which are related to the national minority. The
difficulties arise with the terms “ethnic group” and “collective rights”. Prior
to going further I suggest the following provisional definitions of the terms
for their use in this paper. Ethnic group is a distinct community whose members
identify themselves and who are differentiated by others on the basis of
cultural, religious, linguistic and kinship attributes. None of the indicators
may be said to be permanent over time. None of them are to be viewed as
exhaustive either. For the term “collective rights” I quote here one provisional
definition by Marlies Galenkamp “collective rights are rights pertaining to
collectivities as such in order to protect some collective interests”.¹

The further disagreements also arise when states and scholars argue over what
underlies the term “national minority”. The UN Special Rapporteur Francesco
Capotorti defined it as “A group, numerically inferior to the rest of the
population of a State, in a non-dominant position, whose members- being
nationals of the State- possess ethnic, religious or linguistic characteristics
differing from those of the rest of the population and show, if only implicitly,
a sense of solidarity, directed towards preserving their culture, traditions,
religion or language.”² This definition is what states most often
generally tend to understand meaning that the term “national” reflects the
citizenship requirement. The term “minority” has more than one attribute such as
religion, language, ethnic culture that define the minority. In addition, some
states prefer to use the term in respect of autochthonous groups of populations.
On the contrary some scholars indicate that “‘national minorities’ does not
refer to ‘citizenship’, but to ‘ethnicity’, although a number of states
disagree.”³ What is also unclear is the fact that why the equality
before the law applies to the citizens but it is not applicable to groups of
citizens. The FCNM, for example, does not raise objection to collective
dimension of the protection of the group rights.⁴ The guide to FCNM
indicates that articles 10, 11 and 14s have also a collective aspect of the
rights . It remains the fact that states emphasize the equality of the citizens
but not groups before the law.

Among other uncertainties that remain to be
resolved is the subsequent definition of what is “numerical minority”. The
importance of this question has been raised during the discussion of this issue
by the Armenian working-group on the law national minorities. It is not an
unnecessary question if to consider a situation with the country where the
entire minority population does not surpass 2.1% out of the total population.
There are some important questions that can be raised both in respect of the
countries such as Armenia with small minority groups and larger ones such as the
neighboring Georgia is. The question raised is what should be the sufficient
minimum percentage for the “minority” so that the use of the minority language,
the establishment of bilingual systems of education and so on can be arranged
for them in a given region.

The Georgian Republic and the Republic of
Azerbaijan currently pursue the drive to establish the citizenry system of
identity of the individuals belonging to national minorities. Contrary to this,
national minorities seem to be discontent with this approach. The attempts, for
example, in Georgia to abandon the ethnic identification from some of the
documents alarmed the Meskhetian Turks.⁵
The constitution of the republic of Azerbaijan also dilutes the importance of
the ethnie against the importance of equality before law. While it is certainly
essential that there should be equality before law it is doubtful that the
equality of the right to represent one’s own different ethnic identity should be
contrary to the law. The example of the South Caucasus is the case for study of
the importance of the issue. It can be said that polarization of the
relationship between ethnic groups here are very often perceived on the grounds
of the demands to recognize the distinctiveness of a particular ethnie. Most
conflicting issues today between ethnic groups and states took place on the
grounds of demands for this distinctiveness criteria and the attachment to the
place of inhabitation. Azerbaijani authorities, for example, in their report on
national minorities have devoted pages of proving that the Azerbaijani ethnie
has special attachment to the region of the inhabitation.⁶

The word
“ethnic” is also linked with the main ethnie of the neighboring kin-state. Both
the Armenian and Azerbaijani ethnic groups inhabit Georgia. Neither Georgia nor
Azerbaijan however do not seem to respect either the evidence of such a link nor
respect for ethnicity in their definitions. In this regard, it is not surprising
that Azerbaijan avoids defining “national minority”. Georgia attempts to define
it but it also avoids the reference to the word “ethnic” in one its draft laws.
Such difficulties are not unknown in the ways that some other European states
approach the problem. Germany, Denmark and UK providing rights for national
minorities do not define the term “minority”. At the same time Germany, Hungary
and Denmark mostly understand the minority as historically constituted ethnic
communities.

An extension of the problem with the term “ethnic minority” has
relationship with the question if a minority can be qualified as people. The
problem is known to be tied with the fact that a recognized people has a
recognized right to self-determination. As a result there were attempts of the
equation of the term nation with the term people. The right of peoples and
nations to permanent sovereignty over their natural wealth and resources must be
exercised in the interest of their national development and of the well-being of
the people of the State concerned.⁷ Here it is the case where
“national development” appears to refer both to the people and the nation. On
the contrary, it is can also be argued that there is no reason to believe that
an ethnic community can not be termed as people. Those who believe that national
minority means a historically constituted indigenous minority group equate
people and indigenous minority. Martinez Cobo, Special Rapporteur, defined it as
follows: “Iindigenous communities, peoples and nations are those which, having a
historical continuity…” At the same time he also mentions the ethnic aspect of
the communities in his definition. It appears very difficult to argue against
why an ethnic group can not be both a minority and a people. G. Gilbert said
further in the support of this idea “However, this distinction between peoples
and minorities in international instruments is a purely legal creation,
especially when no definition of either type of entity has proved possible.
Since there is no definition, then no-one can deny that a particular group might
form a minority within the State and, at the same time, qualify as a people”.⁸

The equation of the national minority with an ethnic group and the latter one
with indigenous populations may invoke a further need of special protections for
such groups. One approach for such a protection is related to providing the
indigenous peoples with a special status in the form of various autonomies. The
other one is known for an attempt to introduce a collective right for whoever
are the ethnic groups with a certain period of existence on a given territory.
The second approach seems to have more flexibility in its application to various
minority groups as it will be argued further in the article. The first case is
illustrated in the form of international instruments demanding special measures
and autonomy such as the ILO Convention N 169 and the Draft Declaration on
Rights of Indigenous Peoples. There are also now constitutional arrangements
that deal with various forms of complex autonomies. Those range from British
devolution of power to Bosnia-Herzegovina arrangement.

As it was mentioned
earlier there is the second approach to providing forms protections to minority
groups. It appears to indicate of a possible trend providing the enjoyment of
the rights to national minority without bargaining over sovereignty of the
state. It works though the recognition of the collective aspect of rights of a
group. It also provides rights but does not necessarily request the application
of the status. It is reflected in the laws of the Republic of Hungary (1993) and
Yugoslavia (2002). The Hungarian law appears to shrink the gap between national
and ethnic. It puts them equally for the use in the definition of the national
minority. It says “For the purposes of the present Act a national or ethnic
minority (hereinafter 'minority') is any ethnic group with a history of at least
one century of living in the Republic of Hungary”. The Yugoslav law does not
make such a stress but also mentions the ethnic aspect of the group. The
peculiarities of the both laws seem however to lie in a different area. They
both acknowledge the fact that while some of the rights are collective in nature
the bearer of the right is still individual. Indeed some the rights such as the
right to develop one’s language, traditions, religion and some cultural rights
have an inherent aspect of collective practicing or developing them. Besides, it
is possible to outline such rights that may demand collective protection for a
group. Such rights can be the right to existence as an ethnic community. Other
rights of this category seem to be the right to “dispose of their natural wealth
and resources”. Such a right was outlined in The International Covenant on
Economic, Social and Cultural Rights. The protection of these rights is often
and especially very important for indigenous and/or autochthonous groups. It
also remains a question if collective or/and individual rights are applicable to
such groups resulted from immigration but constitute now a significant part of
the given society.

An aspect of what is “national minority” is therefore
related to the term “new minorities”. They are especially those groups and
persons who became minority in another country as a result of their recent
immigration. This issue has been already recognized in Europe. There remains
though a problem with the question if the laws on national minorities should be
applicable to them or they should not be. K. Henrard making her report at the
roundtable conference in Netherlands Helsinki Committee on the 20th of October
put the question in a different manner from the way it has been done here. She
asked “from what moment on could immigrants groups be considered as minorities?”
At a later stage she mentions that Russia was asked to consider immigrant groups
into the inclusion of the rights. As it is the case with the Polish minority in
Austria and a number of minorities from the republics of the former Soviet Union
located in Russia, laws on national minorities can be requested for them too. Is
it possible to make the situation with the application of the laws on national
minorities clearer in respect of the migrant groups by asking two specific
questions and finding answers for them? First, how should the immigrant minority
groups be treated if they stayed a given country for a lengthy period of time
such as, for example, over five years? If there is a minority group who has
become resident in a country but those members have not yet become citizens
within a period that is necessary either to define their status. Then it appears
that there are reasons why individual minority rights should be applicable to
these groups. The second, question is if these minority groups constitute a
significant proportion out of the population of the region. For example, the
substantial proportion of a number of the people can be 10 and over percent out
of the total population of the region. It appears again that there is no reason
that some collective rights as they were described above may not be applicable
to these groups of the population either.

In this brief paper I have tried
to touch on a number of aspects that can be found in trying to define “national
minority”. Those aspects enumerated here are:

• ethnic aspect of the group or nationality aspect,
• what is the most essential for the term “minority” to be qualified for
  protection and development under certain law (for example,
  self-consciousness),
• minority is or is not a people,
• minority right is individual and/or collective right too,
• minority is both the old and new groups alike.

It seems that the “national minority” has a tendency to develop into
several if not politically recognized then at least assumed as aspects. The
non-recognition of these aspects flows out of the fact there is more of
arguments between “old” state politics and new solutions following from the fall
of the Soviet Union. The observations from this tendency suggest that while
national minority can and should indicate citizenry aspect it is also necessary
that the “ethnic aspect” should be indicated too. The evidences flow from both
the international and at present from some national definitions of the term
national minority. While minority can be numerically inferior it is still
difficult to argue against the fact that the national minority can also be
qualified as people. Since terms minority, ethnicity, people can all be
qualifiers of a group it is also argued here that minority has also a collective
aspect of the rights applicable to them. Those rights may vary in the forms of
application according to needs and political framework of a given country.
Besides, minority can be old but also new groups formed from recent immigration.
Those individuals belonging to the minority can for various reasons fail to
acquire citizenship but remain residents of a given country. Provided what is
their number in a given country they however should not be denied the right to
either individual at all times and sometimes collective rights along with other
groups and individuals alike.

1. M. Galenkamp Collective Rights p. 53
   
   http://www.uu.nl/content/16-3.pdf  1-12-2003
2. Dr Joshua Castellino, Deirdre O'Leary Some Definitions of
   National Minorities
   http://www.minority-rights.org  November 2003
3. Y. Ghai Public Participation and Minorities (Minority
   Rights Group 2003) p. 10
4. C. Barnes, M. Olsthoorn The Framework Convention for the
   Protection of the National Minorities A Guide for Non-Governmental Organizations
   p. 5 (Minority Rights Group)
   
   www.minorityrights.org/admin/Download/Pdf/FrameConv.pdf  
   25-2-2004
5. А. Юнусов Месхетинские турки: дважды депортированный
   народ (“Заман”, Баку 2000 ) 104
6. Report submitted by Azerbaijan pursuant to Article 25,
   Paragraph 1of the Framework Convention for the Protection of National
   Minorities (Council of Europe, Strasburg Received on 4 June 2002) p. 4-9
7. I. Brownlie Principles of Public International Law
   (Oxford University Press, Oxford 2001) 543
8. G. Gilbert Autonomy and Minority Groups - A Legal Right
   in International Law? (Paper is prepared by professor G. Gilbert Human
   Rights Centre, University of Essex presented at COMMISSION ON HUMAN RIGHTS
   Sub-Commission on the Promotion and Protection of Human Rights Working Group
   on Minorities) p. 3
9. K. Henrard “’New Minorities’ and the Applicability of
   Minority Rights. p. 22 in ‘New Minorities’: Inclusion and Equality
   Roundtable Conference – (Netherlands Helsinki Committee October 20, 2003)