Definitions and Justifications: Minority and Indigenous Rights in a Central/East European Context

I. Introduction	1011
II. Difficulties of Definition	1015
A. Definitional Problems for Indigenous People	1015
B. Why Consider Central/East Europe?	1020
C. Definitional Problems for Minorities in Central/East Europe	1023
III. A Comparison of Claims	1028
A. Goals	1028
B. Collective Rights	1030
C. Justifications	1033
IV. Conclusions	1045

I. Introduction

Over the last decade, the concept of "indigenous people" has acquired considerable normative power in international practice. In 1982 the United Nations established a Working Group on Indigenous Populations, which in 1993 adopted a remarkably ambitious Draft Declaration on the Rights of Indigenous Peoples. ¹ Similarly, in 1989 the International Labour Organization (ILO) developed Convention 169 which rejected the ILO's earlier assimilationist approach towards indigenous peoples in favor of respect and support. ² Meanwhile, the World Bank's implementation of a 1991 Operational Directive, which imposes special requirements on certain World Bank projects affecting indigenous peoples, has had a significant impact on development and lending practices. ³ Indigenous peoples have been actively involved in these standard-setting activities, and have established themselves as a significant presence on the international stage. However, there is no general agreement on the definition of "indigenous people"--that is on who should benefit from the rights framework which is being established--nor is there an agreement on a process by which such a definition could be developed. ⁴

At about the same time that the international community began focusing seriously on the needs of indigenous peoples, the end of the Cold War revived interest in minority rights. The United Nations adopted a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities in 1992, ⁵ and several regional instruments have also been developed, most notably the Council of Europe's Framework Convention for the Protection of National Minorities, which entered into force in 1998. ⁶ Notwithstanding this increased attention, however, minority groups have had little access to the institutions which define their rights. There is no international body for minorities comparable to the United Nations Working Group on Indigenous Populations, and both international and regional standards remain comparatively weak. Moreover, there is as little agreement on the definition of the term "minority," as there is on the meaning of "indigenous people."

The absence of definitions for the concepts of "minorities" or "indigenous peoples," coupled with the evolving differences in treatment accorded to these groups under international law, raises both conceptual and practical problems. While indigenous peoples have sought to distinguish themselves from minorities, differences in the status and rights accorded to the two groups ensure that this distinction will increasingly be challenged. Russel Barsh, a scholar who has written extensively on both minorities and indigenous people, warns that:

European minorities and Asian tribal peoples are certain to become more assertive at the United Nations. . . . [T]he adoption of ILO convention 169 in 1989 and the Declaration on Minorities in 1992 has created a situation in which it is more advantageous to be labeled indigenous than minority. Disputes over definition and classification are unavoidable. Definition will be forced on indigenous peoples if their distinct rights to participate in United Nations meetings continue to expand, if they continue to attract special support from aid agencies, and, in particular, if they succeed in their demands to establish a permanent forum. States undoubtedly will insist on greater definitional clarity in determining the beneficiaries of these privileges and programs. ⁷

Much of the definitional debate so far has focused on whether the "indigenous peoples" concept should be limited to groups which have historical continuity with pre-colonial peoples, or whether it should be expanded to include Africa and Asia. The tensions between the concepts of "indigenous people" and "minorities"--though not always directly addressed--drive this discussion: in countries of European settlement, like the United States or Australia, it is much simpler to distinguish between "indigenous...