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The Minority
Rights Group International suggests that, if states opt out of parts of
international treaties then this action, in International Law,
should not be contrary to the object and purpose of the relevant treaty.
Thus, if the existence of minorities is denied this should not be
discriminatory, i.e. make unjustified distinctions between groups. The
logic of this position is that the existence of a minority does not
depend upon a decision by the State but must be established by objective
criteria (Minority Rights Group International, 1998, 13)
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Defining
a national minority
3.1
The term ‘minority’ is uncontroversial. It simply denotes a
numerically smaller and non-dominant group. However, the term
‘national minority’ is not so transparent. There are three possible
sources for a definition of this term in relation to the Framework
Convention. First, there is the language employed within the Convention
itself. Second, we could use the definition decided upon by the UK
Government. Or third, we might turn to an independent and more widely
accepted academic definition.
3.2 The
Framework Convention itself contains no explicit definition of the term
‘national minority’. This was for pragmatic and political reasons,
as member states could not agree on a definition. However, running
through the Convention document there is an implicit definition. For
example, in discussing the background to the Convention it notes that
the Parliamentary Assembly of the Council of Europe called for
"wider protection of the rights of national minorities" as
early as 1949, in its first year of existence (Council of Europe, 1994,
11). This is a relevant point as it suggests the use of the term
‘national minority’ precedes the period of mass immigration into
Europe of peoples of non-European origin.
3.3 Article
5.1 of the Convention specifies religion, language, traditions and
cultural heritage as key identifiers of the identity of national
minorities. Article 3.1 implies that an element of self-identification
is important and that individuals may decide not be treated as a member
of a national minority. This reflects the flexible and variable aspect
of identity claims in the late twentieth century and avoids a simplistic
and fixed classification of national groupings. Finally, and most
crucially for the Cornish case, articles 10.2, 11.3 and 14.2 refer to
"areas inhabited by persons belonging to national minorities
traditionally or in substantial numbers", introducing both a
possible territorial dimension to the term ‘national minority’ and
the notion of long-term association with a specific territory.
3.4 Clearly
therefore, while not specifying a definition of national minority, the
intention of those who drafted the Framework Convention was to be
inclusive and to incorporate groups with a historic relation with a
territory as well as groups with a cultural heritage different from that
of the majority.
3.5 At
first glance, the UK Report would seem to adopt a much narrower
definition of ‘national minority’. Indeed, the Home Office even
states that "the Government does not recognise any ‘national
minority’ under the Convention because this is not a legally
recognised term within the UK" (Mike O’Brien, Parliamentary
Under-Secretary Home Office, Hansard, written answers, 22 October 1998).
Instead, the UK Government defines a national minority as a ‘racial
group’, as defined by the Race Relations Act, 1976. However, the Race
Relations Act of 1976 actually adopts a relatively loose definition of
‘racial group’ and specifically includes reference to groups having
‘national origins’.
3.6
A racial group is defined in this legislation as "a group of
persons defined by colour, race, nationality (including citizenship) or
ethnic or national origins" (Home Office, 1999, para 2). The UK
Compliance Report concludes that groups qualify either as an
"ethnic minority community" (by implication including such
groups as Afro-Caribbeans for example) or "by virtue of their
national origins" (including the Scots, Welsh and Irish). The
Compliance Report thus distinguishes between ethnic groups, which it
describes as "visible minorities", apparently basing its
definition on phenotype and biological appearance, and "historic
national identities within the UK" (Home Office, 1999, para 2).
Under this definition therefore any Cornish case for inclusion has to
rest on the second variant, ‘a historical national identity within the
UK’.
3.7 What
is at issue, therefore, is whether the Cornish qualify as a group with
‘national origins’. The Government is adopting a legal definition so
we can first turn to the courts to see how ‘national origins’ might
be defined there. Following the case of Northern Joint Police Board v
Power (1997), the Employment Appeal Tribunal ruled
to the effect that the Scots and the English are separate racial groups
defined by reference to their ‘national origins’. Whether a group
could be defined by reference to its national origins depended on
whether there were identifiable elements, both historically and
geographically, which at least at some point in time reveal the
existence of a nation. It can hardly be doubted that the same rule would
apply to the Welsh. On the other hand, purely regional identities would
not fall within the definition. There would appear to room for argument
so far as the Cornish… are concerned (Harvey, 136, L/259)
3.8 But
the UK Government employs a second line of defence. For a group to be
defined as a racial group under the Race Relation Act, it needs to be
defined as such in case law, that is as a specific result of a ruling on
an action brought under the Race Relations Act. Because no Cornish case
has been brought before the courts a succession of Home Office civil
servants can claim in various letters that "the Cornish have not
been found to be a racial group under this act". But while not
clearly ruled as being a racial group under the terms of the 1976 Act,
equally the lack of legal judgement means that the Cornish have not been
ruled not to be a racial group. Therefore, even under the legalistic
definition of national minority employed by the Government the Cornish
case remains an open one.
3.9 Moreover,
the implied usage of the term ‘ethnic’ in the UK Government’s
Compliance Report and the distinction between an ethnic group and an
historic nation runs counter to virtually all academic writing on issues
of ethnicity, race and nation since the passing of the Race Relations
Act in 1976. The most striking difference is that, in the academic
literature, the concept ‘ethnicity’ is not confined merely to
minority groups distinguished on some supposed genetic basis. For
example, one approach sees ‘ethnic categories’ as divisions based on
cultural distinctions, including language, economic life and even
psychological make-up, similar criteria to those noted in the Framework
Convention, articles 5, 10 and 11. For some, when members of ethnic
categories become self-conscious and attach explicit value to these
cultural differences they become an ‘ethnic group’ (Rex, 1986, 12)
or an ‘ethnic community’ (Eriksen, 1993). Ethnicity is thus a first
order categorization, a primary social grouping that humans use to
classify themselves and their social world (see Jenkins, 1997). In other
words, we are all members, or potential members, of an ethnic group.
Such a definition could include all minorities in the UK, whether Sikhs
or Scots, Afro-Caribbean or Irish, as well as the majority English.
3.10 The
distinction between ethnic group and national minority or group remains
rather less clear. There are two possible meanings of ‘national
group’ available. First, it could mean a group that adopts an ideology
of common origins and which struggles actively for the establishment of
political institutions that reflect a separate and distinct political
community. Second, it could mean an ethnic group or community that
occupies a minority position within a nation state. It would appear that
both the Convention, by implication, and the UK Government, by
specifically including as national minorities groups that have no
nationalist ideology, adopt the second of these meanings. Indeed a
definition produced by the Bolzano Group and presented to the Council of
Europe in 1992 uses the terms ‘national minority’ and ‘ethnic
community’ interchangeably and defines the latter as
" an ethnic community – historically present on the
territory of a State Party - which is smaller in number than the rest
of the population of a State, whose members who are nationals of that
State, have ethnical, linguistic or cultural features different from
those of the rest of the population and are guided by the will to
safeguard them" (Bolzano Group, 1992, draft Convention on the
Fundamental Rights of Ethnic Groups in Europe, 1992, 8)
3.11
The next section of this report will identify the Cornish case
for inclusion, both as a ‘historic national identity within the UK’,
under the definition of national minority adopted by the UK Government,
or as an ‘ethnic community’ under a wider, more inclusive academic
definition.
Summary
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The
Framework Convention for the Protection of National Minorities
defines a national minority implicitly to include
minorities possessing a territorial identity and a distinct
cultural heritage.
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The
UK Government, in contrast, bases its definition on the 1976
Race Relations Act. But it still defines a national minority
as including those groups with a ‘historic national identity’.
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The
academic definition of minority ethnic communities, possessing
features different from those of the majority population of a
state, is more appropriate and closer to the intention of the
Council of Europe.
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The
Cornish case for inclusion can be assessed in terms of both
‘historic national identity’ and ‘ethnic community’ |
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