Community Rights: Facilitating Reconciliation or Triggers for Ethnic Segregation?
A study of the rights afforded to ethnic, linguistic, and religious communities and their members in Kosovo.
Candidate number: 8007
Submission deadline: 7 September 2020 Number of words: 19 903
II Acknowledgements
This thesis marks the end of many years as a student, and the two years’ master program in Theory and Practice of Human Rights at the University of Oslo.
First and foremost, I would like to express my sincere appreciation to my supervisor Anna Maria C. Lundberg for providing me with valuable advice and guidance. Her understanding, patience and encouragement has been highly important during this process.
I am also particularly grateful for the encouragement from my friends and family, as they always have been available for discussions and support.
i Table of contents
ACKNOWLEDGEMENTS... II
1 INTRODUCTION ...1
1.1 Research question ...2
1.2 Motivation of this study ...2
1.3 Delimitations and clarifications ...4
2 METHODOLOGY ...6
2.1 Research strategy ...6
2.2 Research design ...7
2.3 Data Collection and Analysis ...8
2.3.1 Structure and methodological choices and reflections ...9
2.4 Challenges and limitations ... 11
3 THEORETICAL FRAMEWORK ... 13
3.1 Culture and Identity ... 13
3.1.1 Multicultural societies ... 14
3.1.2 Diversity and minority rights ... 16
3.2 Vernacularization of human rights ... 18
3.3 Legal pluralism ... 19
3.4 Feminist theory and intersectionality ... 20
4 RELEVANT INTERNATIONAL HUMAN RIGHTS LAW ... 23
4.1 Cultural diversity ... 23
4.2 Protection of vulnerable groups ... 24
4.3 Right to education... 26
4.4 Case-law: Dayton Peace Agreement ... 27
5 CASE STUDY: KOSOVO... 29
5.1 Historical overview and current situation ... 29
5.2 Relevant domestic law ... 32
5.2.1 The Constitution of the Republic of Kosovo ... 32
5.2.2 Domestic law, agreements, and strategies ... 34
5.3 Kosovo’s human rights situation in practice ... 37
5.3.1 Albanian culture and customs ... 37
5.3.2 Women’s situation ... 39
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5.3.3 Communities and minorities ... 42
6 HUMAN RIGHTS IN KOSOVO ... 50
6.1 Community rights: facilitating reconciliation or triggers for ethnic segregation? ... 50
6.1.1 Community rights upholds ethnic segregation ... 50
6.1.2 Risk of informal and private subordination ... 52
6.2 Seeking solutions ... 54
6.2.1 Intersectional approach ... 56
7 CONCLUSION ... 58
8 BIBLIOGRAPHY ... 61
1 1 Introduction
The international community intervened in Kosovo in 1999, after a brutal conflict with politi- cal disruptions, severe discrimination, and ethnic cleansing. Kosovo was placed under tempo- rary international supervision, and the United Nations Interim Administration Mission (UN- MIK) was granted all powers of government, legislative, executive, and judicial. A transition towards a well-governed, multi-ethnic democratic state based on universal human rights was initiated.1
Kosovo declared independence in 2008, but the presence of international security and super- vision institutions remains. More than a decade after independence, Kosovo remains a fragile state characterized by dysfunctional governments, extensive corruption, and unreliable institu- tions.2 Despite the compliance to a high standard legal framework with extensive rights af- forded to ethnic, linguistic, and religious communities and their members, especially women and minorities lack sufficient de facto protection of their rights. The different communities live rather segregated, with limited contact between them. Ethnic tensions, discriminatory practices, and patriarchal attitudes continue to affect the Kosovar society. Domestic and gen- der-based violence is a major issue, and is believed to be widely tolerated. Members from minority groups face various obstacles in meetings with public institutions and services, and even members from the majority group will often rather turn to informal institutions based on customary law.3
This thesis seeks to understand the gap between human rights law and practice. I will examine the rights afforded to ethnic, linguistic, and religious communities and their members in Ko- sovo, and why the human rights situation remains inadequate. I will argue that the effects of such rights have contributed to uphold the current ethnic segregation and ethnic tensions in Kosovo, which hampers reconciliation and peaceful coexistence. In turn, and together with people’s general limited trust in the state, this facilitates the presence of closed communities with risks of informal and private subordination of individual members.
1 Capussela, 2015, p. 5.
2 Freedom House, Kosovo, Report from 2016 and 2020.
3 OSCE/UNFPA, 2018, Rexhaj, 2018.
2
My intention is to demonstrate the need to consider what kind of measures or human rights standards that are appropriate in a specific context when international actors promote respect for human rights. The disparity between human rights law in theory and practice in Kosovo demonstrates the need to tailor international human rights efforts into the specific and local contexts. A country’s history with foreign influence and occupations, ethnic violence, and strong customary norms and practices can have considerable influence on how the population responds to newly introduced laws and standards. Comprehensive legislation is not always sufficient, and need to be combined with other measures to change deeply-embedded social structures. I will therefore suggest that increasing inter-ethnic interaction considerably and adopting an intersectional approach would contribute to improving the human rights situation in the context of Kosovo.
1.1 Research question
This thesis seeks to explore the practical experiences and effects of human rights law when applied in a local context. My research question is:
How has the rights afforded to ethnic, linguistic, and religious communities and their members affected the human rights situation in Kosovo?
There are many factors that can shape the way countries and societies respond to human rights ideas, and one size does not necessarily fit all in international human rights law. After the methodology chapter, I will present my relevant theoretical framework that can help to under- stand how international human rights ideas are perceived in local contexts. Next, I will pre- sent relevant provisions in international human rights law, before examining the specific con- text of Kosovo. This entails a brief overview of the history and current circumstances, rele- vant legislation, and then the human rights situation in practice.
1.2 Motivation of this study
Kosovo holds a special place in my heart after living and working there for one year. I espe- cially enjoyed the hospitality, and the rich and diverse culture. The capital Prishtina is vibrant and full of life, and it is easy to forget the atrocities of Kosovo’s past. I observed a strong and diverse civil society, and have met so many young and intelligent people working together for a better future.
3
I was however occasionally reminded of the past, and that ethnic tensions remains. When driving through Serbian-majority municipalities in the north of Kosovo in 2017, I saw count- less Serbian flags. The text ‘Kosovo is Serbia’ was written on a Serbian flag outside one of the municipality buildings, and inside there was a picture of Milošević4. All over the country I saw many ruins of religious buildings that had been burned down and never rebuilt. Orthodox monasteries and churches are now protected by strict security measures. The continued pres- ence of the international community is also quite apparent. KFOR5 troops are frequently pa- trolling the streets, and diplomats and their fancy cars are a common, but noticeable sight con- trasting to the general cityscape. The security measures around the EULEX and UNMIK premises, and around the American Embassy are still remarkably strict. Meanwhile, graffiti with the words ‘EULEX/UNMIK go home’ can be found on many buildings all over Prisht- ina.
Through my work I visited many rural, sometimes remote villages inhabited by minorities. I saw how the different communities often live quite segregated, and with little contact between them. Among other communities, I visited Albanian minorities living in Serb-majority munic- ipalities in the north of Kosovo, remote and somewhat isolated Bosnian villages in the moun- tains, and villages inhabited by Roma or Ashkali in the outskirts of Prishtina. I observed that minorities from Roma and Ashkali communities suffer from particularly inadequate living conditions.
Despite the international influence on Kosovo’s legal framework and continuous international presence, it is obvious that certain groups lack de facto protection of human rights. To me it seemed that the different communities hold their own cultural and traditional norms and prac- tices highly important. Some of these norms and practices may sometimes conflict with con- temporary human rights ideas. I became interested in the effects of providing community rights on the full realization of human rights in Kosovo. I also find it important to understand how full implementation of human rights is affected by certain prevailing or informal norms or practices in specific contexts.
4 Serbian politician and former President of Yugoslavia. Charged with several counts of crimes against humanity in Kosovo, Croatia and Bosnia during the 1990s (DW.org).
5 Kosovo Force, NATO-led international peacekeeping force.
4
After meeting so many serious and hard-working people in Kosovo committed to human rights and other related work, I am confident that there will eventually be progress towards a general human rights enjoyment also for the most marginalized. Changing attitudes, prejudic- es, traditional customs, and views on gender roles is essential for improving the human rights situation, but it will surely take time. It is important when aiming to preserve and protect cul- tural diversity, to also promote inter-ethnic interaction and dialogue. This will over time con- tribute to combating prejudices and discrimination, which in turn will increase people’s en- joyment of human rights.
1.3 Delimitations and clarifications
The history of Kosovo is an overly broad topic, and I cannot cover everything. I will not ad- dress certain aspects of Kosovo’s history such as periods involving the country Albania.
When using the term ‘Albanians’, I refer to the ethnic Albanians that have been living in the area of Kosovo since the 13th century.6 Below I will mention a few aspects that I will either only briefly touch upon, or not address in this thesis.
International involvement: I will address the conflict in Yugoslavia leading up to the interna- tional intervention, and only briefly describe the following international involvement in Ko- sovo. I will not go into further detail or address the discussion about the legitimacy of the in- tervention.
Minority rights: This entails both the rights afforded to individuals in a minority position, and the collective rights afforded to a minority community as a group. This term is not included in Kosovo’s Constitution, and it is referred to rights to ‘communities’ and their members instead.
One of the reasons is that the constitution was based on the Ahtisaari Plan which was drafted by the UN Special Envoy with the same name, and that it would be complicated as Serbia does not recognize Kosovo as an independent state and therefore consider themselves as being in a majority position. I will therefore use the term ‘community rights’ in this thesis, but I will also refer to ‘minorities’ when discussing the effects of these rights.
6 Endresen, 2019.
5
Religion: I will not focus on religion in this thesis. Kosovo is a secular state, and the majority of the population consider themselves being of Muslim heritage, without necessarily describ- ing themselves as religious. The national identity of Kosovo Albanians is not related to reli- gion, but rather the language together with certain cultural and traditional practices, and their customary law: The Kanun. Religion is generally not seen as an important contributing factor in the conflict between Serbs and Albanians.7
7 Crisis Group, 2001, “Religion in Kosovo”.
6 2 Methodology
This chapter will describe the methodological choices I have made during the process of writ- ing this thesis. I will first explain my qualitative research strategy and case study design, be- fore explaining my data collection and analysis. I will include a description of the structure of the paper while also reflecting around the data collection in each chapter, as I have used a variety of sources. Finally, I will describe some of the challenges and limitations of this the- sis.
2.1 Research strategy
I have chosen a qualitative research strategy for this thesis. Qualitative research is concerned with words rather than numbers, meaning that relevant texts and literature is collected and analyzed in order to understand specific concepts or contexts.8 This strategy allows me to get an in-depth and contextual understanding of a particular situation, and to investigate the un- folding of events over time. The unstructured nature of qualitative research allows me greater flexibility, and to accommodate unexpected discoveries when engaging in the existing litera- ture on my topic.9 When examining the human rights situation for particularly women and minorities in Kosovo, it felt natural to use a qualitative research strategy.
I was already familiar with the human rights situation in Kosovo before choosing this topic for my thesis. I know that they have a strong legal framework for protection of human rights, but that women and minorities continue to suffer from discrimination and prejudiced views. I wanted to investigate the disparity between law and practice and began my research with reading various literature related to culture and identity, multicultural societies, and minority rights. My topic and research question has developed over time while doing the research, and became more precise the more I found out about the specific situation in Kosovo.10 I also did not have a clear opinion on the matter before I started, which I consider an advantage. If I did have a clear opinion in the initial phase, it would be easy to fall into the mistake of looking for research that would confirm my already established assumptions.
8 Bryman, 2012 p. 380.
9 Ibid, p. 408.
10 Ibid, p. 85.
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Qualitative research can be criticized for being too subjective. The findings in this thesis are based on what I find significant and important to include, and the interpretation of the data collected will also be influenced by my own subjective understanding and presumptions. It is therefore difficult to replicate my qualitative findings, and to generalize them to other set- tings.11 This is however one of the aims of my thesis, to demonstrate the need for tailoring international human rights promotion to each specific context. The case of Kosovo cannot be representative for all cases, but the aim is to provide insight into how international human rights promotion should be tailored, and what aspects it is important to consider. “It is ‘the cogency of the theoretical reasoning’, rather than statistical criteria, that is decisive in consid- ering the generalizability of the findings of qualitative research.”12 Furthermore, it is the quality of theoretical inferences that are made out of qualitative data, that is essential to the assessment of generalization.13 In this sense, my findings should contribute to a broader un- derstanding of the human rights situation in Kosovo, stressing that different circumstances requires different strategies for human rights promotion.
I am taking on an interdisciplinary approach in this thesis, drawing on different perspectives across academic boundaries. Applying and combining contributions from political science, anthropology, and law, allows me greater flexibility and to engage in a broader discussion.14 2.2 Research design
I have chosen a case study design for this thesis. A case study entails a detailed and intensive analysis of a specific case. This allows for a deeper understanding of the complexity of the specific case, as the case itself is the object of interest.15
The case I have studied is Kosovo, and I have explored the rights afforded to communities, and the human rights effects of such rights in this specific context. In order to identify possi- ble effects, I have examined historical events, the ‘introduction’ of human rights law in Koso- vo, as well as past and present social forces that may interfere with peoples’ enjoyment of
11 Bryman, 2012, p. 405.
12 Ibid, p. 406.
13 Ibid, p. 406.
14 Langford, 2017.
15 Bryman, 2012, p. 66.
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human rights. The findings are based on a selection of secondary sources such as relevant literature, reports, and articles. When examining human rights in theory compared to practice, it is also necessary to include primary sources of law.
As with a qualitative research strategy, a case study on specific circumstances cannot be rep- resentative of all cases, and the findings cannot be generalized.16 It could however be possible to draw on my findings when investigating more or less comparable cases, considering that Kosovo is a multi-ethnic, post-conflict society. In chapter 4.4 I have investigated previous case-law from the European Court of Human Rights. I found it useful to look at the arguments presented in the case, and was able to draw upon them in my own discussion. This thesis can as such offer an insight into key political and social processes and the relationship between law and practice in comparable societies, but we should never assume that their experiences are the same.
2.3 Data Collection and Analysis
This study is based on primary legal sources, secondary literature, articles, reports, as well as data provided by governmental institutions and organizations. In the initial phase of research, it is important to examine the relevant existing literature. The process of collecting data is also about data reduction. The incredibly large amount of existing literature covering my topic requires me to make choices about what to include.17 When collecting data and assessing the quality of documents, Scott suggested using four criteria. The first concerns the authenticity, if the evidence is genuine and of unquestionable origin. Credibility can be assessed by exam- ining if the evidence is free from errors and distortion. The representativeness and meaning should also be assessed: whether the evidence is typical or not, and if it is clear and compre- hensible. Bryman acknowledges that this is an extremely rigorous set of criteria, but they are nevertheless useful to reflect upon when collecting data.18
Using high quality secondary data allow me to spend more time on the analysis and interpre- tation.19 The documents and reports deriving from private sources such as companies and or-
16 Bryman, 2012, p. 70-71.
17 Ibid, p. 8, 13, 311, 409.
18 Ibid, p. 544.
19Ibid, p. 312-313.
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ganizations are likely to be authentic, clear, and comprehensible. Issues of credibility and rep- resentativeness should however be examined more carefully. Documents or reports provided by an NGO are for instance likely to have or promote a particular point of view, and I need to keep this in mind.20 Findings deriving from articles that include interviews with individuals cannot be regarded as providing an objective account of a situation. Such personal interviews is however valuable as they can give me insight into certain individual experiences and points of view, and requires me to examine the information provided in connection with other sources of data.21 By cross-checking and using a variety of sources, I have aimed at increasing the quality of my data and findings. Considering my multitude and variety of sources, I will provide an overview of the following chapters of this thesis below, and describe and reflect upon my methodological choices.
2.3.1 Structure and methodological choices and reflections
In Chapter 3, Theoretical Framework, I have used various scholars and researchers to de- scribe and examine concepts from different perspectives. Firstly, I have explored the concepts of culture and identity, the characteristics and possible challenges of multicultural societies, and accommodation of diversity and minority rights. I have included prominent scholars on these topics such as Hylland Eriksen, Engle Merry, Kymlicka and Okin. I have also examined research conducted by Roald and Rice, as I found their findings useful for my own discussion.
I have also described the concepts ‘vernacularization’ of human rights and legal pluralism, followed by a section with relevant feminist theory.
Chapter 4, Relevant International Human Rights Law, is based on primary legal sources such as international conventions, covenants, declarations, general comments, protocols, including case-law. The numerous amounts of sources required me to find relevant provisions related to cultural diversity, protection of vulnerable groups, the right to education, and then finally case-law related to the peace agreement in Bosnia and Herzegovina. I will not cover all provi- sions in detail, but the point is to demonstrate the extensiveness of the protection provided.
20 Bryman, 2012, p. 551.
21 Ibid, p. 551.
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In Chapter 5, Case Study: Kosovo, I needed to be more careful in my selection of sources.
Section 5.1 starts with an overview of the history and current situation in Kosovo. I used Du- san Janjić’ chapter on “Kosovo under the Milošević Regime”, from the book Confronting the Yugoslav Controversies: A Scholars’ Initiative. The book is described as a presentation of findings from over 160 leading historians, social scientists, and jurists, presenting all sides of the Yugoslav conflicts. Based on my previous knowledge and cross-checking with other sources, I assessed this as an authentic and credible source of information. The description of the international involvement and the current situation was based on Andrea Capussela, and reports from Freedom House, the World Bank and OSCE, which I consider to be reliable sources. Andrea Capussela wrote the book State-Building in Kosovo in 2015, based on his experiences working as head of the economics unit of Kosovo’s international supervisor. I consider this to be an authentic and reliable source as it is based on his own experiences. He obviously has clear opinions and is not objective, and he is commenting on and criticizing certain aspects of the international involvement in which he was a part of.
Section 5.2 consist of Kosovo’s relevant legal framework. I have assessed primary sources of law, in addition to official agreements and documents. Similarly to Chapter 4, I will not cover everything in detail, but rather demonstrate the comprehensive legal framework.
Section 5.3 will examine the human rights situation in Kosovo, and includes a variety of sources. On Albanian culture and customs, I used contributions from Trnavci22, Cara23, Margjeka24, and Rexhaj25. I supplemented their findings and research by examining the offi- cial texts of the Kanun in Albanian language. I managed to do this with my basic but still lim- ited knowledge of the Albanian language, and additional help from Albanian-speaking friends. On the situation for women in Kosovo, my findings are mainly based on Rexhaj’s fieldwork, Freedom House26, and an OSCE report from 2018. The findings from the OSCE report was a result of “a quantitative survey with 1001 men and 500 women, four focus group discussions and 26 in-depth interviews with key stakeholders and experts”, conducted during
22 Professor of law, Bosnia.
23 Lecturer in political-juridical sciences, University of Durres, Albania.
24 Judge in the first instance of Durres’ Court, Albania.
25 Her master’s thesis and fieldwork on Women’s Rights – Between competing laws in Kosovo, 2018.
26 Describes themselves as an independent watchdog organization.
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five months in 2017.27 The respondents were chosen based on the population of all municipal- ities in Kosovo, and minority representatives were “oversampled in order to be able to provide representative opinions.” Of 1501 male and female respondents, 1000 were Albanians, 300 were Serbs and 201 were from other minority communities.28 The findings from Rexhaj’s fieldwork and case study confirms the quantitative findings of the OSCE report. These are results of months of comprehensive work, and I consider them to be of high quality. The last section examines Kosovo’s different communities, and is largely based on findings from OSCE Kosovo, and ECMI Kosovo. ECMI has been active in Kosovo since 2001, and have extensive knowledge of the human rights and minority situation.29 Considering the particular situation of female members of minority groups, I examined official governmental docu- ments, findings from an NGO, and articles provided by UN Women and the independent me- dia organization Kosovo 2.0. By combining the use of findings from international organiza- tions and NGOs with personal interviews with activists and individuals, I have gained a broader understanding and knowledge about the human rights situation. I have chosen sources that are broadly considered authentic, credible, and reliable, and have also increased the quali- ty by cross-checking information.
2.4 Challenges and limitations
My initial plan was to travel to Kosovo and conduct fieldwork, speaking to NGOs and activ- ists to hear their personal opinions on possible challenges for full realization of human rights.
This would have opened up another world and deepened my understanding, as I am exploring the situation in Kosovo from my ‘outsider’ perspective. My plan was however interrupted by the extraordinary circumstances this spring. I have therefore done my best to find other solu- tions, and explored already existing findings from various organizations, activists and indi- viduals as described in the previous section.
Some of the challenges I have had are related to finding relevant information in English, and the time-consuming process of navigating through official documents and domestic law pro- vided by the Republic of Kosovo. I have, however, been lucky to have Albanian speaking
27 OSCE /UNFPA, 2018, p. 4.
28 Ibid, p. 11.
29 ECMI Kosovo, “About ECMI”.
12
friends to help me, but it is certainly a challenge to be somewhat dependent on others when doing research.
The subjective nature is a typical limitation of qualitative research strategies. When collecting data, analyzing, and discussing my findings, I should be aware of how it can be influenced by my own understanding and location in the world.30 Therefore, I have had to consider my out- sider perspective. Even though I have lived in Kosovo for a period myself and got to know a lot of people, I might have understood and interpreted their challenges differently than they would. I have not been able to read news or other articles that are only available in Albanian or another language, and I can only understand the culture as an outsider. My own feminist perspective can also shape the way I understand the Kosovar society and its challenges. Ac- knowledging my own position and the power balance, I can benefit from a postcolonial femi- nist approach. I recognize that not all women’s or people’s challenges are the same, and it is important to also let people speak for themselves. My outsider perspective could possibly have been a greater challenge if I went to Kosovo for interviews myself. However, my dis- tance to the research and socio-economic status allows me to criticize or comment on certain aspects without risking any of my own liberties.
Another limitation is the breadth of the topic of this thesis. I need to be selective as I cannot cover everything. My findings can however inspire further and more detailed research, such as for instance the ethnic segregation in Kosovo, and possible implications and strategies for interaction and reconciliation.
30 Bondevik and Bostad, 2017.
13 3 Theoretical Framework
This chapter will present relevant theoretical perspectives when examining ‘community rights’ in the context of Kosovo. First, I will explore the meanings of culture and identity, the characteristics of multicultural societies and accommodation of diversity and minority rights.
Next, I will describe the concepts ‘vernacularization’ of human rights and legal pluralism, followed by various perspectives from feminist theory. This combination of theories and per- spectives can broaden the understanding of the importance of history, culture, and identity for the realization of human rights.
3.1 Culture and Identity
The term ‘culture’ can be understood as an integral part of national, ethnic, or religious identi- ties. Using an anthropologist framework, culture can be defined as:
historically produced in particular locations under the influence of local, national, and global forces and events. Culture consist of repertoires of ideas and practices that are not homogeneous but continually changing because of contradictions among them or because new ideas and institutions are adopted by members. They typically incor- porate contested values and practices.31
Being a product of historical influences and connected to relations of power, Merry argues that the different meanings of cultural practices must be understood in their specific context.32
Hylland Eriksen use the term ‘ethnicity’ when referring to “aspects of relationships between groups which consider themselves, and are regarded by others, as being culturally distinc- tive.”33 He adds that these groups often are ranked hierarchically within a society, and mem- bers from the different groups may experience systematic differential treatment of various degrees.34 Cultural differences between groups can be either emphasized and overcommuni- cated, or played down and seen as not important. group identities are defined in relation to
31 Merry, 2006, p. 11.
32 Ibid, p. 15.
33 Eriksen, 2010, p. 5.
34 Ibid, p. 9, 22.
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what they are not, and contact with other groups can lead to a stronger self-consciousness about their own ethnic identity.35
Debates on ethnicity and culture are often characterized by systematic distinctions between the insiders and outsiders, or between ‘us and them’. Groups tend to become more concerned with their distinctiveness in contact with other groups, and Eriksen use an example from the outbreak of the civil war in Yugoslavia in 1991 to explain how ethnic boundaries are estab- lished. The different ethnic and religious groups in Yugoslavia had been living peacefully side by side since 1945, their languages are similar, and they had high rates of intermarriages. The main differences between Serbs and Croats may have been their different variants of Christi- anity, as well as their different scripts. After 1991 however, cultural differences were pointed out and highlighted in several parts of former Yugoslavia, which resulted in confrontations and conflict. This illustrates how ethnic boundaries can be activated, as previously irrelevant cultural differences can be used as an argument for why different groups are unable to live side by side. Eriksen describes ethnic identities, groups and beliefs of shared culture and his- tory as being created by historical circumstances, or as either intended or unintended conse- quences of political projects.36
3.1.1 Multicultural societies
Modern democratic societies and welfare states require a high level of solidarity between the citizens, and a strong sense of common identity and membership in the state will encourage them to make sacrifices for each other. Such a common identity includes at least a common language and history, in addition to equality of opportunity among all citizens.37 In culturally diverse societies there are often clashes or disagreements between groups, and there may exist unequal power relations and discriminatory practices of certain groups. Kymlicka considers accommodation of ethnic differences as one of the most important challenges for democracies today, balancing the rights between the majority and minorities.38 Good governance, the rule of law and equality between citizens, can strengthen the solidarity and reduce ethnic polariza-
35 Eriksen, 2010, p. 14, 26-27.
36 Ibid, p. 38, 46.
37 Kymlicka, 1995, p.77.
38 Ibid, p. 1.
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tion in states consisting of different majority or minority groups.39 Group representation in the legislature is therefore an important measure that can be taken in representative democra- cies, as groups feeling excluded or ignored may “become alienated from the political process and question its legitimacy.”40 Commenting on the increasing focus on identity politics in Europe, Rossavik claimed that well-functioning multicultural societies requires less identity politics.41 Instead of groups placing greater emphasis on their distinctiveness, Rossavik rather emphasize a need to promote increased interaction, openness, and respect between groups.42 When examining cultural meetings between immigrants and the recipient society, Roald found that when immigrants in a minority situation feels threatened by the majority society or the state, they may become even more strict in their protection and preservation of cultural practices.43 This may especially be the case when immigrants are moving to countries with cultures that are considerably different from their own. While western democratic societies emphasize individual freedom and emancipation, the notion of identity in some cultures are more related to family, ancestors or a clan, and choices made by individuals may affect their parents or the whole family.44 To illustrate the effects of experiencing the state as threatening towards one’s own culture, Roald refer to an example of a justification for wearing reli- gious/cultural clothing. When asked about her religious clothing, a young Muslim girl in Norway stated that she wore the jilbab45 both because it was mandatory in her religion, but also because the mainstream society did not like it. Roald further refer to Zaman who is a sec- ond-generation immigrant himself, who argues that instead of expanded interference from the state and mainstream society, minority communities should be allowed greater freedom in order for structures to be changed from within.46 Cultural confrontations can certainly also lead to positive experiences, creating mixed products containing the best features and values of each culture. 47
39 Tusalem, 2010, p. 505.
40 Kymlicka, 1995, p.150.
41 Rossavik, 2020.
42 Ibid.
43 Roald, 2005, p.79-80.
44 Ibid, p. 75-76, 89.
45 Long, loose-fit coat that covers the whole body.
46 Roald, 2005, p. 89-91.
47 Ibid, p.77.
16 3.1.2 Diversity and minority rights
Multiculturalism as a political tool can be used to accommodate and recognize differences in ethnicity, religion or cultural heritage in a society according to Modood.48 In order to accom- modate such differences in multicultural societies, it is important to secure the protection of civil and political rights for all. Besides these rights, Kymlicka is a strong advocate for minor- ity rights, and argues that “some forms of cultural difference can only be accommodated through special legal or constitutional measures”, such as if members of a group have certain group-specific rights.49 Kymlicka sees offering special minority rights to certain groups as a way of regulating potential conflicts between majority and minority cultures, acknowledging that ethnocultural conflicts has been important sources of political violence since the end of the Cold War.50 Kymlicka recognizes the importance of culture and group membership for individuals, and argues that minority rights enlarge individual freedom and promote equality between majority and minority groups.51
Okin is critical towards Kymlicka’s arguments for multiculturalist policies and group rights for failing to recognize the often informal and private subordination of women.52 She is con- cerned about claims of minority cultures that clash with norms of gender equality that formal- ly is endorsed by liberal states, and she uphold that group rights should not be prioritized over individual members’ rights.53 Okin claims that since most of the world’s traditions and cul- tures are clearly patriarchal and often concerned with ‘personal law’, such as regulating mar- riage, divorce, property and inheritance, illiberal group practices will especially affect women and girls.54 When addressing claims of group rights according to Okin, special attention should therefore be given to inequalities within groups and between the members, and the voices of the less powerful members of groups should also be heard and represented.55 Kymlicka and Okin do however agree that a liberal justification of group rights should forbid groups to impose internal restrictions on their members, but Okin additionally recognizes that
48 Modood, 2007, p. 39-40.
49 Kymlicka, 1995, p.26.
50 Ibid, p. 1-5.
51 Ibid, p. 34-36, 69, 75-76.
52 Okin, 1999, p. 22-24.
53 Ibid, p. 9-11.
54 Okin, 1999, p. 12-14.
55 Ibid, p. 22-24.
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informal or private discriminatory practices may occur despite being formally prohibited.56 If allowed to impose internal restrictions, members of illiberal cultures may prevent other mem- bers from questioning their practices, and it may lead to discrimination of certain sub-groups such as women or people of lower castes, resulting in violations of individual liberties.57 Kymlicka instead believe that liberal societies should offer certain external protections for some groups to accommodate ethnic and cultural differences, and to limit the impact of deci- sions made by the larger society. This will let vulnerable groups become more equal to larger groups.58
Kymlicka believe that illiberal cultures or groups are capable of change, and that liberals should try to promote liberalization of these cultures through peaceful negotiation and agree- ments between majority and minority cultures.59 He is critical towards imposing liberal prin- ciples by force, either on national minorities within a country or on foreign countries, and states that:
Attempts to impose liberal principles by force are often perceived, in both cases, as a form of aggression or paternalistic colonialism. And, as a result, these attempts often backfire. The plight of many former colonies in Africa shows that liberal institutions are likely to be unstable and transient when they have arisen as a result of external imposition, rather than internal political reform. In the end, liberal institutions can only really work if liberal beliefs have been internalized by the members of the self- governing society, be it an independent country or a national minority.60
56 Kymlicka, 1995, Okin, 1999.
57 Kymlicka, 1995, p.75-76, 94-95, 167-168.
58 Ibid, p. 36-37.
59 Ibid, p.75-76, 94-95, 167-168.
60 Ibid, p.167.
18 3.2 Vernacularization of human rights
The claim that human rights are universal and constant, opens for a discussion on their socio- logical legitimacy. The various human rights agreed upon today are results of discussions and value conflicts, but have also been claimed to be of Western origin.61 Bartelson claimed that any “effort to impose a given set of values on the existing plurality of communities in the name of a common humanity is likely to be met with resistance on the grounds of its very own particularity.”62
Sally Engle Merry argues that human rights ideas need to be translated into local terms in order to be effective, a process she calls vernacularization of human rights. How international ideas and regulations regarding human rights are adopted at national or local levels depend heavily on states’ history, colonial experience, governmental structure, resources, and NGO activism, and it is therefore important to understand local contexts of power and meaning, and be aware of different cultural understandings of human rights ideas. The increasing number of treaties and resolutions is important as it strengthens the international legal basis of human rights, and can provide people with tools for claiming their rights when experiencing viola- tions. In order for laws to have an impact however, Merry argues that human rights ideas need to be embedded in everyday social practices, and become part of ordinary peoples’ con- sciousness.63
Merry offers a cultural perspective on gender violence, which in many parts of the world is seen as a normal or private issue rather than a human rights violation. She argues that because gender violence is “deeply embedded in systems of kinship, religion, warfare, and national- ism, its prevention requires major social changes in communities, families, and nations.”64 However, she adds that struggles over cultural values within local communities can lead to change, and believe that local cultural practices are far more fluid and open to change than some may suggest. 65
61 Langford, 2018, p. 72.
62 Bartelson, 2009, p. 2 in Langford, 2018, p. 72.
63 Merry, 2006, p.1-3, 6.
64 Ibid, p. 1-2.
65 Ibid, p. 9-10.
19
Kathleen Rice have also addressed the different understandings of human rights values. She found that when human rights law is introduced to societies and smaller communities where kinship and family is central, they can be seen as justifying autonomous actions that may con- flict with cultural norms. Human rights may thus impair the interdependence and interperson- al care, which affects everyone in the community. 66 In her research from rural South-Africa, Rice found that especially gender equality could be seen as a threat to the social order in cer- tain contexts. Her informants confirmed that gender violence is widely accepted, and that it would be unlikely for them to pursue rights-based justice in cases of physical abuse by a male friend or family member. Criminalization of domestic violence in patriarchal societies which authorizes violence against women, puts the meaning of masculinity under pressure, and up- sets the gender hierarchy. Human rights and equality, premised on liberal idioms of individu- ality and autonomy, are thus seen as the scapegoat, destabilizing social hierarchies.67
3.3 Legal pluralism
Legal pluralism is a socio-legal phenomenon in which there exist more than one legal order in a society, which according to Sally Engle Merry is a condition found in most societies today to a greater or lesser extent.68 Hellum explains that legal pluralism as a phenomenon can be used to analyze the interactions between international human rights, state-law and local norms.69 The argument here is that law not only takes place in the courts, but in addition oper- ates in its shadows by other forms of social regulation. According to the broad definition of the ‘new’ legal pluralism, virtually all societies contain plural normative orders which exist in the same social field.70
One way to categorize the different types of laws that exist in a society, is to look at state-law or official law on one side, and the nonstate law such as customary law on the other. They both involve regulation of behavior, and customary laws are often traditional and unwritten norms that are commonly known among a group, or several groups of people. Merry refers to Diamond who argues that advancements of law contradict, and will suppress the importance
66 Rice, 2016, p. 31-35.
67 Ibid, p. 35-38.
68 Hellum, 2017, p. 435, 440, Merry, 1988, p. 879.
69 Hellum, 2017, p. 440.
70 Merry, 1988, p. 869-874.
20
of customs, and does not believe that customary norms are forms of primitive law that gradu- ally will develop into state-law. Other research referred to by Merry has however suggested that in some cases, customary laws was in fact a product of, and a reaction towards the colo- nial encounter, and created within the context of the colonial state.71
3.4 Feminist theory and intersectionality
Feminist theory consists of various theories trying to explain the different origins and causes of oppression, and to address them by developing strategies for achieving equality. Liberal feminists emphasize the importance of education, laws and policies in the struggle for gender equality, socialist feminists believe in economic emancipation and integration into the work force, and radical feminists calls for a reordering of the whole society and abolition of oppres- sive institutions such as the family.72 The different theories have, according to some, tradi- tionally been focusing on already privileged women, the worker vs. the capitalist, and women against men. Kimberlé Crenshaw wrote an article in 1989 criticizing the antidiscrimination doctrine, feminist theory, and antiracist politics from a black feminist perspective. She oppos- es treating “race and gender as mutually exclusive categories of experience and analysis”73, and states that focusing on the already privileged group members is disadvantageous for peo- ple that are multiply burdened.74
Postcolonial feminists criticize the western feminist discourse on women in the third world, and calls for the political necessity of strategic coalitions being formed across class, race and national boundaries. Western feminist political practices imply that all women around the world prioritize the same issues, which appropriates and colonizes the different and complex experiences of women in the third world according to Mohanty. Any discourse that sets up its own authorial subject as the standard or guideline for how to encode and represent cultural Others is thus problematic, and an image of the ‘average third-world woman’ as ignorant, poor, uneducated, domesticated, family-oriented, victimized and bound by traditions or reli-
71 Ibid, p. 875.
72 Wollstonecraft, 1792, Mill, 1869, p. 1-2, 53, Nussbaum, 2000, Mitchell, 1966, Firestone, 1970.
73 Crenshaw, 1989, p.139.
74 Ibid, p.140.
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gion has been created.75 In contrast, western women’s self-representation includes traits such as modern, educated, having control over their own bodies and sexuality, in addition to free- dom in their decision-making. Western feminists are here representing themselves, while re- presenting women in the third world for them, which privileges themselves as the norm.76 Kimberlé Crenshaw introduced the term intersectionality in 1989, criticizing the antidiscrimi- nation doctrine, feminist theory and antiracist politics from a black feminist perspective. She opposes treating “race and gender as mutually exclusive categories of experience and analy- sis”77, and states that focusing on the already privileged group members is disadvantageous for people that are multiply burdened.78 Multiple or intersectional discrimination is when someone experience several layers of inequality, such as for instance being both a woman and belonging to an ethnic minority, and thus being doubly disadvantaged.79
Crenshaw illustrates some of the limitations of antidiscrimination laws and courts’ failure to deal with intersectionality, by examining court cases with black female complainants and looking at how their stories are being framed and interpreted. In DeGraffenreid v. General Motors, five black women alleged that their employer perpetuated effects of past discrimina- tion against black women after losing their jobs in a seniority-based layoff. They were reject- ed by the district court because their complainant was on behalf of Black women specifically, instead of either Blacks or women. The court stated:
[P]laintiffs have failed to cite any decisions which have stated that Black women are a special class to be protected from discrimination. […] Thus, this lawsuit must be ex- amined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.80
The court concluded that there was no sex discrimination since the company in fact did hire women prior to 1964, meaning white women and making no distinctions between the two groups of women. The court further dismissed the complaint on race discrimination, recom-
75 Mohanty, 1988, p.61-65.
76 Ibid, p.65.
77 Crenshaw, 1989, p.139.
78 Ibid, p.140.
79 Banda & Chinkin, 2004, p.11.
80 Crenshaw, 1989, p.141.
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mending the women’s case to be consolidated with another case on race discrimination in the same company. This would undermine the purpose of the case, as the women alleged both race and sex discrimination on behalf of black women specifically. 81 On that account, Cren- shaw argues that sex discrimination of white women is seen as the ‘standard sex discrimina- tion’, as they are only disadvantaged because of their gender. Black women may thus experi- ence more severe consequences than white women, by policies or practices that apparently discriminate against all women.82 Crenshaw further argues that the policies and the discrimi- nation discourse thus provides too narrow categories for recognizing intersectional experienc- es.83
81 Ibid, p.142.
82 Ibid, p.144-145.
83 Ibid, p. 149-150.
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4 Relevant International Human Rights Law
Principles of diversity, equality and non-discrimination are fundamental within international human rights law, and is recognized by several provisions. States are obliged to respect and ensure human rights and equal treatment of all individuals within their jurisdiction, without discrimination of any kind such as race, color, sex, language, religion, political or other opin- ion, national or social origin, property, birth or other status.84
This chapter will present relevant international human rights law. Provisions related to cultur- al diversity will first be presented, followed by protections of vulnerable groups, and rights to education. I have included an example from case-law in the last section, where the peace agreement reached in Bosnia and Herzegovina briefly will be described.
4.1 Cultural diversity
Protection of cultural diversity and cultural heritage is recognized in various international instruments, and is important to ensure exchange and understanding among human beings, and for bringing them closer together.85 Article 27 of the Universal Declaration on Human Rights (UDHR, 1948) and article 15 of ICESCR provides cultural rights, as everyone “has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.86 Respect for the diversity of cultures, tolerance, dia- logue and cooperation are among the best guarantees of international peace and security.87 The Universal Declaration of Cultural Diversity (UDCD, 2001) affirms that the defense of cultural diversity is linked to respect for human dignity, and that “no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.”88
84 International Covenant on Civil and Political Rights (ICCPR) art 2(1), 26, International Covenant on Econom- ic, Social and Cultural Rights (ICESCR) art 2(2), European Convention on Human Rights (ECHR) art 14.
85 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH), preamble.
86 Universal Declaration of Human Rights (UDHR), art. 27.
87 UDCD, preamble.
88 UDCD, art. 4.
24 4.2 Protection of vulnerable groups
Particular groups are recognized as especially vulnerable to human rights abuses and require special protection. Groups that are structurally discriminated against and therefore regarded as particularly disadvantaged include women and girls, national minorities, Roma/Sinti, and sex- ual minorities such as lesbian, gay or transgender people.89 The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) were established ex- plicitly to prohibit discrimination based on race and gender. The definitions of discrimination in ICERD and CEDAW are similar, and the former defines ‘racial discrimination’ as:
any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and funda- mental freedoms in the political, economic, social, cultural or any other field of public life.90
Similar definitions are found in the ILO Convention on Discrimination (C111) concerning discrimination in employment or occupation, and in the UNESCO Convention against Dis- crimination in Education (CADE).
CEDAW General Recommendation No. 19 affirm that gender-based violence “is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.”91 Gender-based violence include acts “that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”92 CEDAW article 2 (f) concerns the obligation of states to take all appropriate measures to modify or abolish existing laws and regulations, as well as customs and practices which con- stitute discrimination against women. General Recommendation 19 states that traditional atti- tudes and stereotypes regarding women as subordinate to men perpetuate widespread practic- es involving violence or coercion, and may justify gender-based violence.93
89 Icelandic Human Rights Centre, “The Human Rights Protection of Vulnerable Groups”
90 ICERD, Art 1.
91 CEDAW General Recommendation No. 19, para. 1.
92 Ibid, para 6.
93 CEDAW General Recommendation No. 19, para 11.
25
CEDAW article 14 addresses challenges faced by rural women. States are obliged to take all appropriate measures to ensure equal access to health facilities, information, education, and economic opportunities, as well as ensure adequate living conditions. General Recommenda- tion 19 adds that rural women “are at risk of gender-based violence because traditional atti- tudes regarding the subordinate role of women that persist in many rural communities.”94 Fur- ther, states are urged to take legal and other measures to provide effective protection of wom- en against gender-based violence. This entails preventive measures such as public information and education programmes to change attitudes concerning the roles and status of men and women, and protective measures such as rehabilitation and support services for women who are victims, or at risk, of violence.95
The Council of Europe adopted a Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) in 2011. It recognizes the need for reali- zation of both de jure and de facto equality between men and women, and that
..violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men and to the prevention of the full advancement of women.96 Article 12 addresses general obligations, and State Parties “shall ensure that culture, custom, religion, tradition or so-called ‘honour’ shall not be considered as justification for any acts of violence covered by the scope of this Convention.”97
Ethnic, religious, and linguistic minorities are protected by Article 27 of ICCPR, and they shall “not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”98 Minority rights are reaffirmed by the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM, 1992), the Council of Eu- rope Framework Convention for the Protection of National Minorities (FCNM, 1994), and the European Charter for Regional or Minority Languages (ECRML, 1992). FCNM recognizes
94 Ibid, para 21.
95 CEDAW General Recommendation No. 19, para 24 (t).
96 The Council of Europe Convention on preventing and combating violence against women and domestic vio- lence (Istanbul Convention), preamble.
97 Ibid, art 12.
98 ICCPR, art 27.
26
that protection of national minorities is essential to stability, democratic security and peace, and that a pluralist democratic society should also create appropriate conditions that enable them to express, preserve and develop their identity.99 Article 4.2 in UNDM reaffirms that states shall take measures to create favorable conditions for persons belonging to minorities to express and develop their culture, language, religion, traditions and customs, but specify that this is “except where specific practices are in violation of national law and contrary to interna- tional standards.”100 Furthermore, all three legal instruments mentioned above recognize that minority language education is significant for protection the identity of minorities.101
4.3 Right to education
The right to education can be found in several legal instruments. ICESCR article 13 regards education as important for human dignity, to strengthen the respect for human rights and fun- damental freedoms, and for the maintenance of peace.102 The UNESCO Convention Against Discrimination in Education (CADE) was adopted in 1960, and is legally binding in interna- tional law. CADE considers education as a fundamental right, and that states have an obliga- tion to condemn any form of discrimination in education, and to promote equality of educa- tion opportunity.103 The main provisions include free and compulsory primary education, and equally accessible secondary and higher education for all. State parties to CADE shall further undertake to “promote equality of opportunity and of treatment in the matter of education.”104 In article 5.1, States Parties agree that:
a. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; it shall pro- mote understandings, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace; and
99 FCNM, preamble.
100 UNDM, art 2.4.
101 ECRML, UNDM, FCNM.
102 ICESCR, art 13.1.
103 UNESCO, “UNESCO’s Convention Against Discrimination in Education”.
104 CADE, Art. 4.
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c. It is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language, provided however:
(i) That this right is not exercised in a manner which prevents the members of these minorities from understanding the culture and language of the communi- ty as a whole and from participating in its activities, or which prejudices na- tional sovereignty;
(ii) That the standard of education is not lower than the general standard laid down or approved by the competent authorities; and
(iii) That attendance at such schools is optional.105
4.4 Case-law: Dayton Peace Agreement
The Dayton Peace Agreement (DPA) was reached in 1995, and is an international settlement aimed at ending the conflict in Bosnia and Herzegovina. The DPA restrict the rights of certain citizens to stand for election as members of the Presidency in order to strengthen the position of the ‘constituent peoples’: Bosniacs, Serbs, and Croats. This is meant to serve a legitimate aim, and is reasonably justified and proportional to the objectives in terms of preservation of the established peace and continuation of dialogue.106
The Committee on the Elimination of Racial Discrimination (CERD) and the Human Rights Committee (HRC) expressed concern as people belonging to national minorities or other eth- nic groups are excluded from the House of Peoples and the Presidency of Bosnia and Herze- govina. However, CERD did acknowledge that the legal structure may have been justified, or was initially necessary to establish peace. 107 The Venice Commission, the Council of Eu- rope’s advisory body adopted a number of opinions on the constitutional situation, including:
74. In the present case, the distribution of posts in the State organs between the con- stituent peoples was a central element of the Dayton Agreement making peace in Bos- nia and Herzegovina possible. In such a context, it is difficult to deny legitimacy to norms that may be problematic from the point of view of non-discrimination but nec-
105 CADE, Art. 5.1 a, c.
106 Sejdić and Finci v. Bosnia and Herzegovina, para 22.
107 Para 19-20.
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essary to achieve peace and stability and to avoid further loss of human lives. The in- clusion of such rules in the text of the Constitution [of Bosnia and Herzegovina] at that time therefore does not deserve criticism, even though they run counter to the general thrust of the Constitution aiming at preventing discrimination.108
The applicants in Sejdić and Finci v. Bosnia Herzegovina complained direct racial and ethnic discrimination. The Government maintained that the restrictions should be assessed against the goal of the peace agreement: establish peace and dialogue between the three main ethnic groups in Bosnia and Herzegovina, after one of the most destructive conflicts in recent Euro- pean history.109 The Court acknowledged that the constitutional provisions were designed to end a brutal conflict, but noted positive developments in Bosnia and Herzegovina after the DPA, and that they became a member of the Council of Europe in 2002. Considering these factors, the Court concluded that the applicants’ continued ineligibility to stand for election lacks an objective and reasonable justification.110
The Court’s conclusion was followed by a dissenting opinion by Judge Bonello. He expressed serious concern for the Grand Chamber’s failure to analyze and consider the historical back- ground and circumstances in Bosnia and Herzegovina in which the constitution was imposed.
He recognized human rights as the foundation of peace, and added:
But what of exceptionally perverse situations in which the enforcement of human rights could be the trigger for war rather than the conveyor of peace? Are the rights of the two applicants to stand for election so absolute and compelling as to nullify the peace, security and public order established for the entire population – including themselves?111
108 Sejdić and Finci v. Bosnia and Herzegovina, para 22.
109 Ibid, para 32-34.
110 Ibid, para 42-45, 49-50.
111 Ibid, ‘Dissenting Opinion of Judge Bonello’, p. 53-56.
